Findings Of Fact Robert Hartnett was at all times pertinent to this complaint a registered real estate broker. Bill Dew and Dave Allman sought to lease a specific piece of real property for business purposes. In this regard they contacted William Hartnett, who had previously leased a piece of real property which included the specific piece of property Messrs. Dew and Allman desired to lease. Messrs. Allman and Dew entered into an agreement to sublease a portion of the Hartnett leasehold. A contract was prepared by William Hartnett and delivered by Robert Hartnett to Dew and Allman, who executed the contract. Although there is conflicting testimony, the testimony of Robert Hartnett is accepted as the more accurate explanation of his role in the transaction. Robert Hartnett had no interest in William Hartnett's business venture or in the leasehold, and did not appear or function as a real estate broker in this transaction. The owner of the property, Mr. Grossinger, testified he agreed to lease the property to William Hartnett. Hartnett was permitted to occupy the premises and paid rent. William Hartnett prepared a written lease which was not signed by the owner, Mr. Grossinger. Grossinger terminated the agreement when Hartnett subleased the premises to Allman and Dew without notifying him and instituted legal action to evict William Hartnett. Under the circumstances, there was an oral lease between Hartnett and Grossinger. Messrs. Dew and Allman made arrangements with contractors to make modifications to the subleased premises, and the modifications were begun. These modifications were in part the cause for the owner terminating the lease with William Hartnett. Messrs. Dew and Allman or their agents did have occupancy of the premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against Respondent Robert Hartnett. DONE and ORDERED this 14th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Louis M. Jepeway, Esquire 619 Dade Federal Building 101 East Flagler Street Miami, Florida 33131
Findings Of Fact At all relevant times, the respondents Russell T. Gorgone and Russ Gorgone, Inc., were registered Florida real estate brokers. On July 11, 1972, an exclusive listing agreement was entered into between Russ Gorgone, Inc., as broker, and Jack Vollhoffer, as owner of the subject property, for the purpose of securing a purchaser for Vollhoffer's duplex located at 4252 and 4254 Armeda Avenue, Ft. Myers. The terms of this agreement included that the buyer would arrange financing, that the property was to be sold for $27,500.00 if conventional financing were used or for $29,500.00 if VA or FHA financing were used; and that Vollhoffer would pay Russ Gorgone, Inc. a fee of six percent of the sales price if a purchaser were procured. (Exhibit 1) Russ Gorgone, Inc. procured a purchaser for the subject property - one Chester Lee Phillips. Russ Gorgone, Inc. prepared a deposit receipt on August 3, 1972, showing a purchase price of $29,100.00, closing costs to be paid by the seller, Mr. Vollhoffer. (Exhibit 3) At first, Mr. Vollhoffer would not accept this offer because he wanted to receive $25,500.00 as his net-net-net proceeds of the sale. Mr. Russell T. Gorgone went to Lee County Title Company and asked for an estimate of the closing costs and was assured by said title company that they would not exceed $3,600.00. He thus made the determination that the property could be purchased for $29,100.00 and Vollhoffer would still receive $25,500.00 as net-net-net proceeds from the sale. On August 4, 1972, Russell T. Gorgone wrote the Vollhoffers a letter on Russ Gorgone, Inc. stationary, stating the offer of $29,100.00, requesting the Vollhoffers to accept it with the agreement that they would receive a total of $25,500.00 as the net-net-net proceeds as the result of the sale. It was further stated that Gorgone's sales fee and other closing expenses would be absorbed out of the $3,600.00 difference between the purchase price and the proceeds to the Vollhoffers. Mr. Vollhoffer accepted the offer of Mr. Phillips, on the basis of this August 4, 1972, letter. (Exhibit 2) Based upon Russell T. Gorgone's conversations with a Mr. Cohen of the Lee County Title Company, he (Mr. Gorgone) did not believe that the closing costs would exceed $3,600.00 and believed, in fact, that they would be less than that amount. He fully intended, at the time of executing the August 4th letter, that the Vollhoffers would receive $25,500.00 as a result of the sale. At the time of the closing on September 8, 1972, there was much discussion, primarily between Gorgone and the title agent, Cohen, regarding the closing statement. (Exhibits 4 and A) Mr. Gorgone testified that he was upset with Cohen over some of the figures charged to Vollhoffer and that he (Gorgone) still intended and felt that Vollhoffer should receive net-net-net proceeds of $25,500.00. He further stated that Cohen explained the changes in the closing costs to Vollhoffer. Vollhoffer testified that nobody explained the discrepancies to him and that he did not pay much attention to these discussions because it was not his business what the closing costs were and he was not concerned with them. His only concern was receiving his $25,500.00. While Vollhoffer testified that Gorgone did not tell him he did not have to close at the price discussed, he stated that he understood that he did not have to sell. Mr. Gorgone testified that he gave Vollhoffer the option of not signing the contract. Vollhoffer did sign the closing statement, which gave him net-net-net proceeds of $24,943.49. Mr. Vollhoffer testified that he signed because Mr. Gorgone had become hostile with him and because Gorgone had other property to sell for him and he therefore did not wish to antagonize him. Mr. Gorgone testified that he did not become hostile or abusive toward Vollhoffer at the closing and Mr. Phillips, the purchaser, testified that he did not observe Gorgone becoming hostile toward anyone. Phillips also testified that Vollhoffer did not, at the time of the closing, appear to be unhappy with the transaction. Some time after the closing, Mr. Vollhoffer made demand upon Mr. Gorgone for the difference between $25,500.00 and $24,943.49. Mr. Gorgone denied owing Vollhoffer anything.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the information against the respondents be dismissed. Respectfully submitted and entered this 7th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones, Esquire 299 Lee Road Winter Park, Florida 32789 Allan M. Parvey, Esquire GOLDBERG, RUBINSTEIN & BUCKLEY, P.A. Post Office Box 2366 Fort Myers, Florida 33902 ===============================================================
Findings Of Fact At all pertinent times, both respondents held real estate broker's licenses. The corporate license is No. 0222663 and the individual license is No. 0159888. The individual respondent has been the only owner of the corporate respondent and the only broker the corporation has ever employed. At one time Angela Lewis worked for Broker Jim, Inc. as a licensed real estate salesperson. On October 6, 1981, it was she who signed, on the broker's behalf, a listing agreement with Laverne Lockhart and Faith Willis, the sisters who jointly owned the house at 1535 NW 116th Street in Miami, Florida (the house) . Petitioner's Exhibit No. 2. Kenneth G. Wilson, who wanted to buy the house, had $5000 available. The house was encumbered with a mortgage in the approximate amount of $33,000 and the sisters eventually agreed to take $44,000 for the property. On the form contract signed by both owners and Mr. Wilson, and dated November 25, 1981, under the heading "Terms and conditions of Sale:", the following was typewritten: 1,000 as mentioned above. Purchaser agrees to make an additional deposit in the amount $4,000 before closing. Purchaser agrees to assume an existing first mortgage in the Approx. amount $33,000, payab[l]e $340.00 P.I.T.I at 10.5 percent per annum in accordance with the terms and conditions set forth therein. Purchaser to obtain a P.M. 2nd mort[g]age in the amount of $6,000 at 18 percent per annum payable Approx. $152.37 for a period of 5 yrs. Balance of purchase price to be paid in cash or cashier check at time of closing. Property being purchased in its present as is condition. Petitioner's Exhibit No. 3. Elsewhere on the printed form appears the following: When this contract is executed by the purchaser and the seller and the sale is not closed due to any default or failure on the part of the purchaser, the seller, at his option, may seek to enforce this contract, or else the seller may direct the holder of the deposit to pay the broker his brokerage fee not to exceed one-half of the deposit and to pay the balance of the deposit to the seller as consideration for execution of this agreement, and the holder of the deposit shall be held harmless by all parties for disbursement in accordance with this agreement. Petitioner's Exhibit No. 3. Ms. Lewis prepared the form contract. Mr. Muhammad, as he is now known, read it over and approved it. In retrospect, he believes this was a mistake, because the contract fails clearly to reflect the parties' understanding that the offer was contingent on Mr. Wilson's ability to borrow $6,000, to be secured by a second mortgage on the house. A deposit ticket dated November 25, 1981, accompanied Mr. Wilson's check for $1000 when respondents deposited it to their escrow account. The bank credited the escrow account on December 1, 1981. Neither Mr. Wilson's efforts to obtain a loan, nor those of respondents on his behalf, availed, and word reached Ms. Lockhart that the transaction was doomed for want of sufficient purchase money. Over the phone, Ms. Lockhart told Helen Jackson, respondents' secretary, that she wanted a "refund" of the deposit. A lawyer Ms. Lockhart consulted communicated a similar demand to respondent Muhammad personally. Respondents gave Ms. Lockhart no money and no accounting. The money stayed in respondents' escrow account until it was used on Mr. Wilson's behalf in the purchase of another house respondents had listed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission enter its final order directing Capitol Rental and Realty, Inc. and Lawrence D. Van Ore cease and desist from using non-registrants as real estate salesmen and further from failing to use the full name of the registrant and the term "Broker" or "Realtor" within its classified advertisements. The Hearing Officer further recommends that the registration of the registrant be suspended until the corporate broker and associate broker Lawrence D. Van Ore have complied with said order of the Commission. DONE and ORDERED this 26th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Gough, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Don Scarlet, Esquire 801 Magnolia - Suite 317 Orlando, Florida 32803
Findings Of Fact In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case. RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1986. COPIES FURNISHED: John B. Root, III Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A. 338 N. Magnolia Avenue, Suite D Orlando, Florida 32801 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DEPARTMENT OF BANKING AND FINANCE, Petitioner vs. CASE No. 86-0328 TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision: In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing. DATED this 13th day of May, 1986. JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE Office of the Comptroller GORHAM RUTTER, JR., P.A. 400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801 ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT Telephone: (305) 423-5116 Telephone: (305) 841-7667 TERRY E. CHRISTENSEN, Respondent EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0024293 TERRY E. CHRISTENSEN, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, CASE NO. 0021931 vs. TEC REALTY, INC. AND TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case. STIPULATED FACTS AND CONCLUSIONS OF LAW Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505. Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo". Respondents admit that they are subject to the provisions of Chapters 455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto). Respondents admit that the Administrative Complaint contains no disputed issues of material fact. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act. STIPULATED DISPOSITION Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation. SIGNED this day of , 1983. (filed document undated) SWORN TO AND SUBSCRIBED Respondents before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC Realty, Inc. Notary Public My Commission Expires: Notary Public, State of Florida My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc. Approved this 21st day of June, 1983. John Huskins, Staff Attorney Department of Professional Regulation Legal Section 400 West Robinson Street, 308 Post Office Box 1900 Orlando, Florida 32802 (305) 423-6134 Approved this 13th Fred Roche, Secretary day of June, 1983. Department of Professional Regulation JH/dm 6/6/83 EXHIBIT 2 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 0024293 DOAH NO. 83-346 TERRY E. CHRISTENSEN and TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345 Respondents /
The Issue The issue in Count I is whether Section 475.42(1)(j) absolutely prohibits a broker or salesman from filing a lien or other encumberance against real property to collect a commission. The issue in Count II is whether the Respondents violated a lawful order of the Commission by failing to remove the motion of lis pendens contrary to Section 475.25(1)(e), Florida Statutes.
Conclusions Section 475.42(1)(j), Florida Statutes, provides as follows: "No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose." Clearly the Respondents placed or caused to be placed the notice of lis pendens in question. A notice of lis pendens is clearly an "other writing which purports to effect the title of, or encumber, any real property." The Florida Real Estate Commission argues that this provision is an absolute bar to the filing of any lien for the purpose of collecting a commission. The Respondents argue that this provision is not an absolute bar and there are circumstances when a broker may file a notice of lis pendens. They also assert that the notice of lis pendens falls within the exception because the Circuit Court refused to remove the notice of lis pendens upon motion of the property owner. Lastly, it is argued that the notice was filed by counsel for the Respondents in good faith on an action at law and that this mitigates their action even if there was a violation. The language of Section 475.42(1)(j) cannot be read to absolutely prohibit a broker from obtaining a lis pendens. When given this construction, it effectively denies brokers and salesmen access to the courts for redress of injury as provided in Article I, Section 21 of the Florida Constitution. Section 475.42(1)(j) is a complex provision which is subject to two interpretations. One interpretation would prohibit a broker or salesman from filing an encumberance if the same were known to him to be false, void or not authorized by law; if not authorized to be upon the public records; if not executed in the form entitling it to be recorded; if the execution of recording thereof has not been duly authorized by the owner of the property; if maliciously (filed); if for the purpose of collecting a commission, if to coerce payment of money to the broker or salesman or other person; or if for any other unlawful purpose. This first interpretation would consider each clause a separate limitation on filing an encumberance. The facts analyzed under this interpretation do not show any knowledge by Respondents that the lis pendens was false, void or not authorized to be filed or not on a form entitling it to be recorded. The facts do not show that Respondents filed the lis pendens maliciously, for the purpose of collecting a commission, or for the purpose of coercing payment of money to the broker or salesman, or for any unlawful purpose. The nature of lis pendens would not require the owner's authorization of execution for recording. The facts show that the lis pendens was filed by Respondent's attorney in conjunction with a suit brought by the Respondents against Perrin. The record also shows that the circuit court determined that the lis pendens was recordable when it denied the motion to remove it. The notice of lis pendens was neither malicious, coercive or for the purpose of collecting the commission. The notice was for the purpose of perfecting the claim against the property for execution of the judgment if the Respondents prevailed in the suit. Executing on a judgment is different from collecting the commission or coercing payment. Under this interpretation the Respondents have not been shown to violate Section 475.42(1)(j). A second interpretation would read the clause, ". . . if the same is known to to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been authorized by the owner of the property. . ." as the first of two criteria to be met to establish a violation. The second criteria would consist of proof that the encumberance was recorded maliciously or for the purpose of collecting a commission, or to coerce payment of money to the broker or salesman, or for any unlawful purpose. Again the facts do not show there was knowledge by the Respondents of the falsity, or impropriety of the notice of lis pendens, as stated above. Again the facts show that the lis pendens was filed in conjunction with a law suit pending between the Respondent and the property owner, and that the court before which the action was pending refused to remove it. The file of the notice by Respondent's counsel was a legitimate method of perfecting the Respondent's claim should they prevail and obtain judgment. The facts do not indicate that the filing of the notice was malicious, coercive or for the purpose of collecting a commission. Under either interpretation, Respondents did not violate the statute. COUNT II The Respondents are charged in Count II with violation of Section 475.25(1)(d), Florida Statutes, which provides that the registration of a registrant may be suspended for up to two years for violation of a lawful order of the Commission. Clearly, the facts reveal that the Respondents had a substantial interest involved in the litigation with Perrin. The order, of the Florida Real Estate Commission to remove the notice of lis pendens substantially affected their rights in this litigation. Therefore, any final order directing Kay to remove the notice of lis pendens should have issued after an opportunity for hearing pursuant to Section 120.57, Florida Statutes. The evidence reveals that the Florida Real Estate Commission did not notice a hearing under Section 120.57, and therefore its order cannot be "lawful." The provisions of Section 475.25(1)(d) require that registrants not violate lawful orders. The Respondents have not violated Section 475.25(1)(d), Florida Statutes, by not removing the notice of lis pendens as directed by the order of the Florida Real Estate Commission.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken against the Respondent, Sam Kaye and Sam Kaye, Inc. DONE and ORDERED this 23rd 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: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William E. Boyes, Esquire Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A. Post Office Box 3466 West Palm Beach, Florida 33402
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
Findings Of Fact Although the parties to this case stipulated that the contract between the LaPointes and the Crowes was a valid contract for the purchase and sale of real estate, a genuine dispute arose between the LaPointes and the Crowes in that regard. Respondents became involved in this matter by showing the Crowes' property to the LaPointes on or before May 9, 1983, and thereby becoming a "co-operating broker'. with Deltona's Marco Island Realty Co. under an Exclusive Right To Sell agreement between Deltona and the Crowes dated January 13, 1983. Under the Exclusive Right To Sell, the Crowes agreed to pay Deltona a fee of 6% of the sales price for brokerage services and agreed, if a buyer failed to close a sales contract and forfeited a deposit to the Crowes, that Deltona could retain one- half of the deposit, but not exceeding the total amount of Deltona's fee, as compensation. The Exclusive Right To Sell also provided that Deltona was responsible to promptly pay any cooperating broker who sells the property for his services as soon as possible after receipt by Deltona of its real estate broker fee as provided in the Exclusive Right To Sell. By May 10, 1983, the LaPointes had made an offer to buy the property and the Crowes, by May 10, 1983, telegram to Deltona, agreed to sell the property for "$165,000, $500 in escrow with balance of $15,500 additional deposit after acceptance with balance at closing . . . sales commission $8,650. On May 11, 1983, Respondent Mary S. Davey, signed the sales contract for the LaPointes' purchase of the Crowes' property as "Agent (authorized by Buyer)." The sales contract also recited: "Buyer acknowledges that Marco Beach Enterprises, Inc/Deltona Marco Island Realty is the procuring real estate broker(s) in this transaction, and that the Broker is the agent for the Seller, and is being paid by the Seller." Respondent. Davey notified the LaPointes of the requirement for a $500 initial deposit and submitted the signed sales contract for the Crowes' signature. By letter dated May 12, 1983, Respondents confirmed "that the total commission to be paid on the sale of the [Crowes'] property is $8,650.00." It also confirmed: said commission is to be split 50/50 between MARCO BEACH ENTERPRISES, INC. and Deltona's Marco Island Realty." Also on May 12, 1983, the LaPointes sent Respondents a check for the $500 initial deposit with a note asking for a complete inventory of the contents of the condominium the LaPointes had inspected and a list of renters. The Crowes signed the Sales Contract on May 16, 1983. By May 24, 1983, Respondents still had not complied with the request for a complete inventory of the condominium's furnishings and for a list of renters. On that date, Respondents sent the LaPointes a copy of the signed Sales Contract with a letter requesting them to sign the Sales Contract under Respondent Davey's signature. Before they arrived, the LaPointes' May 25, 1983, letter to Respondents crossed in the mail. It requested that Respondents put something in the contract concerning pro-ration of water bills and taxes and payment of a water damage bill by the Crowes. The LaPointes repeated their request for an accurate inventory of the furnishings of the condominium and stated that they were placing their trust in Respondents to represent the LaPointes' interests. Some time between the LaPointes' receipt of Respondents' May 24 letter with a copy of the Sales Contract and June 13, 1893, the LaPointes decided to ask for cancellation of the purchase. The LaPointes cited circumstances involving their financing and their disappointment that Respondents had not furnished an inventory of the furnishings. By June 16, 1983, Respondents had responded to the request for cancellation, vigorously contending that a valid and binding contract existed between the LaPointes and the Crowes. By June 24, 1983, the Crowes, through an attorney, echoed their agreement with the position taken by the Respondents that there was a valid and binding contract. By letter dated June 29, 1983, from the LaPointes attorney, the LaPointes questioned the validity of the contract, saying that Respondent Davey had no authority to sign the Sales Contract on behalf of the LaPointes, who never did sign. The Respondents got a copy of this June 29 letter. On July 11, 1983, the LaPointes, through a Florida attorney, demanded of Respondents that their deposit be, returned. Respondents tried to extricate themselves by referring the LaPointes to the Crowes' attorney. The Crowes and the LaPointes remained at a stalemate until after May 7, 1984, when the Crowes sold their property to another purchaser for $162,500. Thereafter, by about June 19, 1984, the LaPointes, the Crowes and Deltona had negotiated their proposed resolution of the matter by disbursement of $3,000.00 to the Crowes and $13,500.00, plus all accrued interest, to the LaPointes. Respondents had not been included in any of these negotiations, and they refused to sign the agreement. As stipulated by the parties to this case, the matter remains unresolved. The Florida Real Estate Commission Handbook states in pertinent part: "But, what are the rights of the seller and the broker? In the absence of a specific agreement or custom, when a purchaser refuses to sign a contract after the offer has been accepted, the broker is only entitled to the agreed or usual commission percentage of the deposit. Where the purchaser refuses to go through with a contract by which he is bound and which can be enforced against him by the seller, the broker may, in the absence of a contract or custom, appropriate the deposit up to the amount of the earned commission."
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint that has been filed by Petitioner, Department of Professional Regulation, Division of Real Estate, against Respondents, Mary S.·Davey and Marco Beach Enterprises, Inc. RECOMMENDED this 7 day of August, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7 day of August, 1986. APPENDIX The following are rulings on proposed findings of fact to the extent required by Section 120.59(2), Florida Statutes (1985): Paragraphs 1 through 6 of Petitioner's proposed findings of fact are accepted as substantially factually accurate and are incorporated in the Findings Of Fact to the extent necessary. Paragraphs 8 and 10 of Petitioner's proposed findings of fact would be included in paragraph 1 above except that they are unnecessary. Paragraph 7 of Petitioner's proposed findings of fact is rejected as unsupported by the evidence. Paragraph 9 of Petitioner's proposed findings of fact is rejected as contrary to the greater weight of the evidence and/or Findings Of Fact. It ignores the Exclusive Right To Sell which must be read together with the Sales Contract. Respondents submitted no proposed findings of fact designated as such or in a form which entitles them to specific rulings. However, their proposed findings of fact were carefully considered. COPIES FURNISHED: Susan Hartmann, Esquire Department of Professional Regulation Division of Real Estate P. O. Box 1900 Orlando, Florida 32802 Arthur V. Woodward, Esquire 940 North Collier Blvd. P. O. Box 1 Marco Island, Florida 33937 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Division of Real Estate Department of Professional Regulation P. O. Box 1900 Orlando, FL
