Findings Of Fact The Respondent Habitat Corporation is a corporate real estate broker holding license number 0217261, with a registered business address of 3835 North Andrews Avenue, Fort Lauderdale, Florida 33309. The Respondent James S. Shenkenberger is the qualifying broker for the corporate licensee, and holds license number 0079972. Prior to January 2, 1981, Shenkenberger was qualifying broker for American Overseas Investment Corporation, then a licensed Florida corporate real estate broker operating in Fort Lauderdale, Florida. On January 2, 1981, Shenkenberger placed the real estate license of American Overseas Investment Corporation on inactive status, and obtained an active license for the Habitat Corporation. From July of 1977, Shenkenberger had an oral agreement with Florida Hendry Land, Inc., to act as a broker in selling property belonging to Florida Hendry Land, Inc. The terms of this agreement were that Shenkenberger was to be paid on a commission basis, and that he would present sales agreements for the approval of Joe Hendry, the owner of the corporation. When a sales contract was complete, then Florida Hendry would issue the Warranty Deed and order the title insurance. In early 1980, Irvin Adams, pursuant to a newspaper advertisement advertising land for $800 an acre, contacted Jim Shenkenberger and arranged to meet with him. On February 9, 1980, Adams flew to Florida from Pennsylvania and was shown Florida Hendry land by Shenkenberger. On this date, Adams decided to purchase lots four and five for a total purchase price of $64,000. Shenkenberger told Adams that if he made all the payments within one year, the purchase price would be reduced by 10 percent. As a down payment, Adams gave Shenkenberger a check for $14,000, payable to the order of American Overseas Investment Corp., and $2,000 in cash. At no time was Adams presented with a sales contract for Lots four and five. Adams returned to Pennsylvania, and contacted Shenkenberger several times during 1980 when he became worried that he had not received any requests for further payments. Shenkenberger informed Adams that the land was tied up, that Mr. Hendry had an obligation to the State of Florida, and that the land had been put up as a bond. In December of 1980, Shenkenberger contacted Adams and told him that the property was clear. On January 10, 1981, Adams flew to Florida a second time. He met with Shenkenberger, and again viewed the Hendry property. Adams decided to change the property he was purchasing to tract 18. Adams gave Shenkenberger a check payable to the order of American Overseas Investment Corp. in the amount of $12,800, and Shenkenberger gave him a receipt reflecting that Adams had paid in full for tract 18. At no time was Adams presented with a sales contract for tract 18. On this same date, Shenkenberger showed Adams three more Hendry tracts, and Adams gave Shenkenberger a down payment for Lots six, seven and ten in the amount of $11,900. Shenkenberger made out and signed the offers to purchase the three lots in the presence of Adams, but did not give them to Adams to sign. Adams never received a receipt for deposit or a sales contract on any of the three lots. Polly Hodge, who operated Florida Hendry Land, Inc. on a day-to-day basis, was first informed in March of 1980 that Irvin Adams might be interested in purchasing certain of their properties. The first money received by Florida Hendry Land, Inc., relating to sale of property to Irvin Adams, was by a $300 check from Shenkenberger dated January 15, 1981. Shenkenberger represented that the funds were a binder for the purchase by Adams of tracts six, seven and ten. Florida Hendry Land, Inc., never received a written offer to purchase the properties. After Florida Hendry received the binder, Polly Hodge asked Shenkenberger on several occasions about the status of the sale to Adams. Shenkenberger repeatedly advised her only that Adams would be coming to Florida in the near future. After Adams returned to Pennsylvania from his trip to Florida in January of 1981, he contacted Shenkenberger and advised him that he wished to purchase one lot in full rather than Lots six, seven, and ten. On January 26, 1981, he sent Shenkenberger a check in the amount of $14,650 for payment in full of tract ten of the Hendry property. At no time did Adams receive a deposit receipt for this payment, nor did he receive a sales contract. When Adams became concerned because he had not received deeds to the two properties, he contacted Shenkenberger, and was told that the Hendry Land Office was slow in preparing the deeds. On February 26, 1981, Adams visited the offices of Florida Hendry Land, Inc., and spoke briefly with Polly Hodge. Adams informed her that he wished to purchase tract ten only, and was not pursuing the purchase of tracts six and seven. Later, Adams met with Shenkenberger, and again inquired about the deeds. Shenkenberger assured him that he would have the deeds shortly. On February 27, 1981, Shenkenberger wrote a check to Florida Hendry Land in the amount of $23,895 which, together with the binder of $300, was the full purchase price of tract ten less Shenkenberger's 10 percent commission, and the deed was sent for recordation. Polly Hodge also gave Shenkenberger the Warranty Deed to tract 18 after Shenkenberger represented to her that he would be closing the property on the weekend, and would then deliver the purchase money to her. After the Warranty Deed was given to Shenkenberger, Polly Hodge inquired several times as to the progress of the transaction, but Shenkenberger repeatedly told her that Adams had not arrived to close. After returning to Pennsylvania, Adams was contacted by Shenkenberger on or about March 12, 1981. Shenkenberger told Adams that he had talked to J.B. Hendry and that Hendry did not feel that he had gotten enough money from Adams for tract 18. Shenkenberger told Adams that he would give Adams his money back for tract 18 or that Adams would have to pay him an additional $3,600. In response, Adams sent Shenkenberger a check payable to the order of American Overseas Investment Corporation in the amount of $3,600. Adams received the recorded deed for tract 10 on March 14, 1981, and received the recorded deed for tract 18 on April 11, 1981. In total, Adams paid American Overseas Investment Corporation $32,400 for tract 18 and $26,500 for tract 10. Florida Hendry Land, Inc., received no monies from either Irvin Adams or James Shenkenberger for the purchase by Adams of tract 18. At the time tract 18, consisting of 40 acres, was conveyed to Adams, the purchase price was $72,000 less 10 per cent because it was a cash purchase. Florida Hendry Land, Inc., was entitled to $64,800 less 10 per cent for Shenkenberger's real estate commission, for a total amount due to Florida Hendry Land of $58,320. Shenkenberger was aware of the purchase price for tract 18 from his long business relationship with Florida Hendry Land, Inc., and from plat maps given to him by Hodge that showed lot prices. In 1980 and 1981, Florida Hendry Land processed sales on a "walk-in" basis, processing and completing a conveyance while the purchasers waited in the office. Florida Hendry had no problems with any governmental agencies, nor was there any other impediment, which prohibited them from conveying their properties. The checks on the account of Irvin Adams were made payable to the order of American Overseas Investment Corporation at the specific instruction of Shenkenberger. On February 11, 1980, Shenkenberger opened a bank account for American Overseas Investment Corporation in what was then the First Bank of Oakland Park, Oakland Park, Florida. This account was not an escrow account or trust account. On January 12, 1981, after American Overseas Investment Corporation had been placed on inactive status, Shenkenberger deposited two checks in the amounts of $12,800 and $11,900 in this account. On February 2, 1981, Shenkenberger deposited the check for $14,650 drawn by Adams into this account. On March 12, 1981, Shenkenberger deposited the check for $3,600 given by Adams into this account. Although Shenkenberger received payment in full for tract 10 shortly after January 26, 1981, he did not deliver the payment to Florida Hendry Land until February 27, 1981. The payments made by Adams to American Overseas Investment Corporation for the purchase of tract 18 were converted to Shenkenberger's own use. In August, 1981, when Florida Hendry Land, Inc., became aware that Shenkenberger had recorded the deed for tract 18, and that the property had in fact been conveyed to Irvin Adams, they attempted to get payment for this tract from Shenkenberger, but were unsuccessful. Thereafter, Florida Hendry filed suit against Shenkenberger and Irvin Adams. Irvin Adams employed the services of an attorney to defend him in the action which was still pending on the date of the final hearing in this case. During the course of the investigation of this matter by the Department of Professional Regulation, a Subpoena Duces Tecum was served on Shenkenberger, as President of American Overseas Investment Corporation, on January 25, 1982. This subpoena requested Shenkenberger to produce all listings, contracts to purchase, binder deposits, deposits of checks and/or monies into bank accounts, receipts, closing statements, and correspondence involving all real estate transactions between Florida Hendry Land, Inc., and Irvin Adams. The Respondent failed to honor the Department's subpoena, and never delivered the requested documents for examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, James S. Shenkenberger, and the Habitat Corporation, be revoked. THIS RECOMMENDED ORDER ENTERED this 2nd day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Owen L. Luckey, Jr., Esquire Post Office Box 865 La Belle, Florida 33935 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Jason Laurens is a registered real estate salesman holding license number 0320711 issued by the Florida Real Estate Commission. Respondent Judy Laurens is a registered real estate salesperson holding license number 0320712 issued by the Florida Real Estate Commission. From approximately May 13, 1980, until June 25, 1980, the Respondents were employed as real estate salespersons in Kissimmee, Florida, by Alice Cody, a registered real estate broker. Prior to the Respondents' affiliation with her, Ms. Cody obtained a listing agreement for a gift shop from its owner, Brice L. Miller. The terms of that listing contract were that if Cody Realty sold the business in conjunction with another broker the commission would be ten percent; however, if the business were sold by an employee of Cody Realty, the commission would be five percent. The asking price was $110,000. Shortly after their association with Cody Realty, the Respondents were introduced to Miller by Ms. Cody. Respondent Jason Laurens undertook to advertise and to sell Miller's gift shop. He inspected the gift shop's inventory and sales records to assess its fair market value, which was less than Miller's asking price. On or about June 17, 1980, Reginald J. Gleed and his wife, who reside in London, England, came into the Cody Realty office asking directions to another real estate agency. Ms. Cody learned from a discussion with Mr. Gleed that he was looking for a commercial listing. Ms. Cody referred the Gleeds to the Respondents. The Respondents showed the Gleeds several commercial properties, to include Miller's gift shop. Respondent Jason Laurens advised the Gleeds concerning the relative strengths and weaknesses of purchasing such a property. Ultimately, the Gleeds made an offer to purchase the gift shop from Miller for a price of $90,000. This offer specified a commission of ten percent. At the time that this offer was made, Mr. Gleed advised the Respondents that this was his sole offer and the highest amount that he was willing to pay for the property. Mr. Gleed's offer was presented to Miller in the Respondents' office at Cody Realty. Miller brought the Respondents' attention to the fact that his listing contract with Cody Realty provided for only a five-percent commission. The Respondents' agreement and understanding with Ms. Cody was that the commission on commercial property would be ten percent, which is customary. The Respondents advised Miller that the $90,000 was a fair offer and suggested that Miller take it. A disagreement arose between Miller and Respondent Jason Laurens concerning the amount of commission. Ms. Cody, as broker, interceded and advised Mr. Laurens that the commission agreement between Cody Realty and Miller specified five percent. Miller left the office with the contract without accepting it. Later, Miller returned to Cody Realty and obtained information from Respondent Judy Laurens about how to amend the contract in order to present a counter offer. Mrs. Laurens provided Miller with this information. She then advised Mr. Gleed that Miller wanted to talk with him regarding the offer, whereupon Mr. Gleed stated that he did not want to talk about it, having made his best offer. Miller made the necessary changes to the contract and waited at the Cody Realty office to see Ms. Cody. Shortly thereafter, the Respondents and the Gleeds left the office to look at duplex apartments. These duplexes were shown to the Gleeds by the Respondents at the suggestion and with the assistance of Ms. Cody, the broker. Again, Respondent Jason Laurens advised the Gleeds concerning the relative strengths and weaknesses of purchasing such a property. Miller left his counter offer with Ms. Cody, the broker, with instructions to her to have the Respondents contact him. Although it is unclear whether the Respondents actually received Miller's counter offer, they did advise the Gleeds of Miller's upcoming counter offer, which Mr. Gleed rejected. On or about June 18, 1980, Respondent Jason Laurens contacted Miller and advised him that Mr. Gleed had rejected his counter offer. Mr. Gleed was a relatively sophisticated investor, who certainly recognized that an investment in rental property would be less of a problem than the purchase and operation of a gift shop. The Gleeds made an offer to buy two of the duplex apartments, and this offer was communicated by the Respondents to Ms. Cody, the broker, who in turn presented this offer to the owner of the duplexes who lived in New York. Again, a ten-percent commission was provided for by the Respondents' contract; however, the broker's arrangements with the owner called for a smaller commission. Ms. Cody, the broker, spoke directly with the Gleeds and made arrangements through her secretary to have Mr. Gleed open an account, which would be a joint account between the Gleeds and Ms. Cody, from which Ms. Cody would be authorized to draw money for the maintenance of the duplex apartments and to which she could make deposits of rental money. At or about this time, Ms. Cody and the Respondents had a disagreement concerning the altered commission amount on this second transaction. Although some of the evidence is controverted, Ms. Cody advised Respondent Jason Laurens that if he did not like the commission he could leave the business. Thereafter, the Respondents took the Gleeds to a savings and loan institution to open an account at Ms. Cody's direction, as mentioned above. From their mutual actions on that Friday, June 20, 1980, the Respondents and Ms. Cody had not severed their employment relationship. The Gleeds opened said account and authorized Ms. Cody to make withdrawals from it. Later, after banking hours, Mr. Gleed changed the authorization from Ms. Cody to Respondent Jason Laurens. Mr. Gleed did this after Mr. Laurens represented that he would be dealing with the account and that it would be easier if he were the person authorized to make withdrawals. Mr. Gleed was not instructed or otherwise pressured to change the authorization, but did so on his own. 1./ There was no evidence that the Respondents knew of this change by Mr. Gleed. This account was not a trust account, and Mr. Gleed's designating Ms. Cody or Respondent Jason Laurens to make withdrawals did not create a trust relationship. Between Monday, June 23, and Wednesday, June 25, 1980, Ms. Cody discharged the Respondents. This resulted from the increasing friction between them due to Ms. Cody's handling or the commercial accounts, the changes in commission rates, and the failure of the sale of the duplex apartments. During this period, Respondent Jason Laurens refused to give Ms. Cody the Gleeds' Miami telephone number, although he did transmit messages to Mr. Gleed from Ms. Cody and from Ms. Cody to Mr. Gleed. Although Mr. Gleed was given the impression by Ms. Cody that his offer for the duplex apartments had been accepted, the deal later fell through because of the seller's desire to adhere to the original listing terms. On Wednesday, June 25, 1980, Respondent Jason Laurens advised Mr. Gleed that the owner of the duplex apartments had changed his mind concerning the sale of the property and would not sell unless the Gleeds paid another $12,000 on the original price of $97,000. By this time, the Respondents had been terminated by Ms. Cody. Mr. Gleed refused to pay this increased price for the duplexes and advised Respondent Jason Laurens that he was not interested in the duplex apartments on terms other than those he had already presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, Judy Laurens, committed no act which is a violation of the statutes as alleged in the Administrative Complaint, it is recommended that the charges against her be dismissed. Further, based on the Findings of Fact and Conclusions of Law that the Respondent, Jason Laurens, committed no acts in violation of the statutes as alleged in the Administrative Complaint, it is recommended that the charges against him be dismissed. DONE and RECOMMENDED this 16th day of January, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 16th day of January, 1984. COPIES FURNISHED: Jim Mitchell, Esquire 801 North Magnolia Avenue, Suite 311 Post Office Box 6171-C Orlando, Florida 32853 Kenneth M. Meer, Esquire Post Office Drawer 30 Winter Park, Florida 32870-0030 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973." As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation" was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did." Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.
Recommendation Based upon the findings of fact and conclusions of law recite above, it is recommended that: the registration of respondent Charles Shane be suspended for a period of three (3) months; and the charges relating to respondent Richard King be dismissed. Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION THOMAS M. MURRAY, Petitioner, vs. PROGRESS DOCKET NO. 2709 DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING, Respondents. /
The Issue The ultimate issues in this proceeding are whether the Respondents have violated provisions of Florida Statutes pertaining to the licensing of real estate brokers and salesmen, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken by the Florida Real Estate Commission. The Administrative Complaint includes twenty-six separate counts. Counts I through XVIII contain allegations that Respondents employed various persons who were not licensed as real estate salesmen or brokers to perform duties that can only be performed by licensed persons. These counts allege violations of the provisions of Sections 475.01(3), 475.25(1)(h), and 475.42(1)(c), Florida Statutes. In Counts XIX through XXVI, various allegations of specific acts of misrepresentation or dishonest dealing are alleged. The Petitioner contends that the facts alleged in these counts constitute violations of the provisions of Sections 475.25(1)(a), (b), and (e), and 455.227(1)(a), Florida Statutes. The Respondents contend that the duties performed by employees as alleged in Counts I through XVIII do not constitute activities of real estate brokers or salesmen, and that the persons were not required to be licensed. The Respondents contend that they were not guilty of any fraud or misrepresentation as alleged in Counts XIX through XXVI.
Findings Of Fact The Respondents Jane A. Foster and Benjamin C. Foster have, at all times material to this proceeding, been licensed by the Petitioner as real estate brokers. The Respondent Guardian Association, Inc., has at all material times been licensed as a corporate real estate broker. The Respondents Jane A. Foster and Benjamin C. Foster were at all material times the qualifying brokers for the Respondent Guardian Association, Inc. During the period from approximately 1978 through 1981, the Respondents were engaged in the business of selling interval ownership shares in a condominium project located in Fort Myers Beach, Florida. The Respondents utilized telephone solicitations in order to generate sales. Individuals were employed by the Respondents to contact potential customers and to induce them to visit the project. During the period beginning January 1, 1981, and ending August 31, 1981, the Respondents employed the following persons as telephone solicitors: Susan Simcic, Tammy Steffans, Sandy Pleak, Carolyn Kim Pressley, Sharel Royal, Betty Price, and Sandy Liese. The telephone solicitors were instructed to call selected telephone numbers, and during an average workday might call as many as one hundred persons. The solicitors were directed to read a script which advised the person they reached that they were a sweepstakes winner and that their prize could be claimed by making and keeping an appointment to visit the resort. An appointment would be made for the person called to visit the resort. The person would be advised that this was part of an advertising promotion. No details concerning interval ownership, or the resort itself were discussed. The solicitors were given definite instructions not to discuss any specific aspects of the promotion beyond the script. After the telephone conversation terminated, the prospective customer would be mailed a packet of materials describing the resort. When the potential customer arrived at the resort, they would collect the prize that they won in the so-called sweepstakes and be given a sales presentation regarding interval ownership and the resort. The persons who made the sales presentation at the resort were licensed real estate brokers or salesmen. The specific script that the telephone solicitors read was changed periodically. The substance of the script, however, remained unchanged during the period from January 1 through August 31, 1981. A representative script was received into evidence at the hearing. The script is attached to this Recommended Order as Appendix "A" and is hereby incorporated into these Findings of Fact as fully as if it were set out verbatim herein. None of the telephone solicitors identified above were licensed by the Petitioner as real estate brokers or real estate salesmen. This fact was well known to the Respondents. The solicitors were not instructed to identify themselves as employees of a real estate broker during telephone solicitations. Instructions given the telephone solicitors were given either directly by the Respondents Jane A. Foster and Benjamin C. Foster, or at the direction of the Respondents. The telephone solicitors were compensated at an hourly rate. In addition, the solicitors received two dollars for each person they solicited who kept the appointment to visit the resort. The telephone solicitors were instructed to represent themselves in telephone conversations with prospective purchasers as "the Public Relations Director of the Guardian Association." This title was clearly a misleading one and was designed to persuade prospective purchasers that the person calling them had some special position of authority. In fact, the telephone solicitors directed nothing and were involved in public relations only in the sense that they were making telephone calls to members of the public. The telephone solicitors were instructed to represent to prospective purchasers that the prospective purchasers were winners in a sweepstakes. If the prospective purchasers "qualified," i.e., were married and between the ages of twenty-five and sixty-two, they were advised that they won their choice of a three-day, two-night vacation at one of several well-known vacation areas, and that they also would be eligible to win prizes ranging from cameras to microwave ovens. The potential customers were not actually winners of any sweepstakes or game of chance. All prospective purchasers solicited were identified as "winners." There was no game of chance or drawing which resulted in their being selected. Offering gifts such as the vacation and other prizes as winnings, rather than merely gifts offered to induce them to visit the resort, was designed to get prospective customers to the resort to receive the sales presentation. During the telephone solicitation, the solicitors were instructed to represent to prospective customers that they would be receiving printed matter relating to the resort and instructions for claiming the prizes. Possession of the printed matter was necessary in order for the prospective customer to claim the prizes. Respondents instructed the telephone solicitors to note whether the person they reached appeared to be a black person or a Hispanic person. If the solicitor believed that to be the case, the solicitor was to make a special notation on the solicitation form. Materials were not mailed to such persons despite representations made during the telephone solicitation that the person had won a prize and would be receiving pertinent materials. The motivation for these instructions was apparently not overt racial hostility, but rather a feeling on the part of Respondents that black and Hispanic persons were likely to be of lower income and thus not viable prospective customers. No evidence was offered from which it could be concluded that Maureen Downey, a person identified in the Administrative Complaint, was employed by the Respondents. No evidence was offered at the hearing from which it could be concluded that any prospective purchaser was injured by the misstatements made during telephone solicitations other than that persons who should have been eligible to receive "prizes" were not mailed materials which they would have needed in order to collect the "prizes."
The Issue Whether petitioner's application for registration as a real estate salesman, pursuant to Chapter 475, Florida Statutes, should be approved.
Findings Of Fact Petitioner field applications for registration as a real estate salesman with respondent on October 10, 1977. Question 16 of the application reads as follows: 16. Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so? The petitioner answered "no" to Question 16. On December 8, 1977, respondent Florida Real Estate Commission issued an order denying the application based on its determination that the applicant had operated, attempted to operate or held himself out as a real estate broker or salesman within the one year period prior to filing his application. Petitioner thereafter requested a hearing in the matter. (Exhibit 1) Petitioner is the president of Marketing Institute Corporation of the Americas, Ltd. of San Jose, Costa Rica. (MICA) The firm operates as a real estate sales organization under the laws of Costa Rica, and is owned by Insco S.A., a Costa Rican holding company. (Testmony of McIntire, Figueredo) In 1975, petitioner became associated with William W. Landa, president of Costa del Sol, a condominium project in Miami, Florida. His function was to produce sales of condominium units as a result of sales efforts in Latin America. Part of the informal arrangement was the petitioner occupied a rental villa at the condominium project. His success in producing sales was limited and, as a result, the association was terminated sometime in 1976. In a letter to Lands, dated January 21, 1977, petitioner sought an accounting of expenses incurred in the operation and stated that he had produced three purchasers for which commissions were payable at the rate of "10% for foreign sales and 5% on domestic sales." Although no explanation of the terms "foreign sales" and "domestic sales" was presented, Landa testified at the hearing that petitioner did not sell in Florida for Costa del Sol. (Testimony of Landa, Figueredo, Exhibits 2-3) On December 1. 1976, the receiver in bankruptcy of the estates of Grandlich Development Corporation and Fisher Development Corporation, Fred Stanton Smith, president of the Keyes Company, Miami, Florida, Wrote petitioner and offered to pay his firm a 10% commission on "all sales closed by you of all Commodore Club Condominiums sold to your prospects." The commission was to be payable to MICA through its agent in the United States, Transcontinental Properties, Inc. of Miami, Florida, a corporate broker, The Commodore Club is a condominium project located at Key Biscayn, Florida. Hemisphere Equity Investors, Inc. was the registered broker for the sales of the condominiums and kept sales agents on the premises. Smith instructed Hemisphere to cooperate with foreign brokers in the sales of the properties. Petitioner proceeded under this arrangement to obtain and refer prospective foreign purchasers to Transcontinental who arranged to show the condominium units to the clients and consummate any resulting sales. Although petitioner had desk space in the Transcontinental office from September, 1976, to August, 1977, he was not supposed to show properties to clients or be involve in any real estate sales functions. In September, 1976, the president of Transcontinental placed a telephone call to respondent's legal office at Winter Park, Florida and ascertained that commissions could be paid to a foreign broker. However, he was informed by the Commission representative that it was a "gray" area and, although the foreign representative could serve as an interpreter for foreign clients during transactions in the United States, he could not perform any of the sales functions himself in Florida. Sales were made in this manner and commission checks were paid to petitioner's firm during the period January - September, 1977. (Testimony of Smith, McIntire, Figueredo, Exhibits 4, 5, 12, 13, 15) On July 1, 1976, Alexander Sandru purchased a condominium at the Commordore Club through the Keyes Company as broker. He was a friend of petitioner's from Caracas, Venezuela, and the latter had recommended his purchase of the condominium. However, petitioner was not in the United States at the time Sandru viewed the property and purchased it. Petitioner claimed a commission on the sale and it was paid to his firm through Transcontinental's predecessor company. A dispute arose over the payment of the commission because a saleswoman of Hemisphere Equity Investors, Inc. had shown the property to Sandru and assumed that she would earn the commission on any resulting sale. (Testimony of Lundberg, Nelson, Murragy, Exhibits 8-11) On several occasions in 1976 and 1977, petitioner accompanied Latin American individuals to the Commodore Club where a representative of Hemisphere showed them various condominium units. During this time, petitioner would inquire concerning maintenance charges and the like and transmit such information to the individuals in Spanish. Several of these persons were connected with petitioner's foreign firm and were not prospective purchasers. (Testimony of Lundberg, Figueredo, Exhibit 7) On January 30, 1977, Insco S.A. entered into a purchase agreement for a Commodore Club condominium unit. Petitioner signed the agreement on behalf of his firm MICA as broker for the transaction. However, the deal was never consummated. (Testimony of Figeredo, Exhibit 14)
Recommendation That Petitioner's application for registration as a real estate salesman under Chapter 475, Florida Statutes, be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1978. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Richard J. Mandell, Esquire 748 Seybold Building Miami, Florida 33132
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, I make the following: The Defendant, Leroy Wilson, is a registered real estate broker with the Commission and during January 1, 1975 to November 5, 1975, Defendant was registered as trading as Overpass Real Estate. On April 27, 1975, Defendant was the owner of residential property located at 291 N.W. 29th Terrace, Ft. Lauderdale, Florida. On April 28, 2/ Robert English and his wife Mazie English in response to a "for sale" sign posted at 291 N.W. 29th Terrace, Ft. Lauderdale, Florida, went to the real estate brokerage office maintained by the Defendant at room 201 Romark Building, 3521 West Broward Boulevard, Ft. Lauderdale, Florida. Defendant and Mr. and Mrs. English discussed and negotiated a deposit receipt contract dated April 28, 1975, between the Englishes as purchasers and Defendant as seller for the purchase and sale of property owned by Defendant located at 291 N.W. 29th Terrace. Mrs. English testified that they put up an earnest money deposit of $300 acknowledged by Defendant, however, Defendant executed the deposit receipt contract reflecting an earnest money deposit of $600. (See FREC Exhibit number 2). Mrs. English testified that part of the terms of the contract was that she would apply for a mortgage loan but when it was determined that her daughter who was to participate with her in the purchase, was not able to stay with her, she and her husband decided not to apply for a mortgage loan. She explained to Defendant and he agreed to return the $300 deposit that she had submitted along with the deposit receipt contract. When the Englishes demanded the return of their deposit, Defendant advised them that "it was the law that the deposit must be kept for 6 weeks, and thereafter, he would have to keep the deposit another ten days." After the expiration of the six week period, the Englishes called the Defendant's office and was advised that he no longer lived there and other efforts by the Englishes to contact the Defendant were fruitless. Thereafter on or about August 20, 1975, the Englishes filed a complaint with the Commission. Approximately two days after the Commission initiated its investigation, the Defendant returned the $300 deposit to the Englishes. (See FREC Exhibit number 3). N.B. Wolf an employee of Gulf Atlantic Mortgage Brokers testified that she was familiar with the document received into evidence as Exhibit number 2 which is the deposit receipt contract entered into by the Defendant and the Englishes. She testified that she did not recall ever having taken a credit application for the Englishes to apply for a mortgage loan. Roy E. Conner, the operations officer for Plantation First National Bank testified that he caused to be gathered the bank records as they relate to the escrow account maintained by the Defendant at that bank. An examination of those bank records revealed that the Defendant's escrow bank account maintained at Plantation First National Bank had a shortage of $5 as of September 16 and that on August 14, his escrow bank account showed a balance of $65 when it should have reflected a balance of $300 in earnest money deposits. See FREC Exhibit number 4 received into evidence. Pruyn investigated Defendant's brokerage office on September 16, at 2951 N.W. Avenue, Ft. Lauderdale, Florida. Based on an official inspection, Pruyn noted a number of inadequacies in that there were no letterheads, no desks, no chairs, no business mail, no diary of witnesses or any official sign as required and set forth in Commission Rule 21V-10.07 and 10.09, Florida Administrative Code and Section 475.22, Florida Statutes. See FREC Exhibit number 5 received into evidence. As previously stated, the Defendant did not appear at the hearing nor did he have a representative present to present any defense to the charges made by the Commission in the administrative complaint.
The Issue Whether Respondents' real estate licenses should be disciplined upon alleged violations of Sections 475.25(1)(b), (d) and (k) as set forth in the Administrative Complaints.
Findings Of Fact Finding of Fact Paragraphs 1-3, above, are reiterated, adopted and incorporated here. Prior to July 1984, Respondents employed Sarah Sampson as a real estate sales person. Upon leaving the employ of Respondent, Mrs. Sampson had earned commissions in the LeMay to Gordon and the DiChristina to McHugh real estate transactions and on a lease agreement involving a Richard Dietz, totalling approximately $2,700.00. Prior to July, 1984, Respondents had received the proceeds from the transactions referred to in Paragraph 12 supra but failed to pay over to Mrs. Sampson her share of the commissions. Subsequent to Mrs. Sampson's departure from the Respondents' employ, Mrs. Sampson made demands upon the Respondents for the commissions. Payment was not forthcoming. On June 11, 1984, Mrs. Sampson loaned to Respondent Bostad, on a personal basis, $5,000.00. Respondent Bostad promised in writing to repay Mrs. Sampson with interest in one week's time. Respondent Bostad failed to repay in said time period. Subsequent to June 18, 1984 Mrs. Sampson made demands upon Respondent Bostad for the return of the $5,000.00 personal loan, which Respondent Bostad again promised in writing to repay by a date certain. Respondent Bostad again failed to pay the $5,000.00 personal loan. Thereafter after Respondent repeatedly failed to account for or deliver the earned commissions to Mrs. Sampson and after Respondent Bostad repeatedly failed to repay the personal loan of $5,000.00, Mrs. Sampson filed suit. A November 27, 1984 Amended Judgment in that cause was entered against Respondents Realty One of Broward Inc. and Robert G. Bostad for the commissions owed and against Respondent Bostad personally for the personal loan. This judgment has not been satisfied as of the date of formal DOAH hearing held April 10, 1985. Respondent Bostad admits to owing Mrs. Sampson the commissions as to LeMay and DeChristina and as to the $5,000.00 personal loan. Respondent Bostad testified to extraordinary attempts to collect the liquid capital to pay these debts but to date of hearing had not done so. He emphasized that all his troubles stem from being a good salesman but a poor bookkeeper and from financial problems arising from his divorce. Each of the agency investigators involved in the Petitioner's audit of Respondents' accounts noted that Respondents' failure to carry balances forward in the escrow account checkbook could be misleading as to the amount of monies actually in the escrow account at any given time. Respondent emphasized that he has not tried to leave the community but wishes to make good his debts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, recommended that: Petitioner enter a final order suspending Respondents' licenses for two years and ordering Respondents to pay an administrative fine of $2,500.00. However, if Respondents establish that the nine transactions pending on June 21, 1984 have successfully closed without loss and pay Mrs. Sampson the commissions owed her then Respondents' licenses should not be suspended but in addition to payment of the $2500.00 fine, Respondents' licenses should not be suspended but should be monitored in a probationary status for five years. DONE and ORDERED this 19th day of July, 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1985.
