The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
The Issue By a four count Administrative Complaint, Petitioner alleges that Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Section 475.25(1)(b), F.S.; guilty of having failed to account and deliver advance fees in violation of Section 475.452, F.S. and therefore in violation of Section 475.25(1)(e), F.S.; guilty of having failed to maintain trust funds ($22,066.25) in the trust account or some other proper depository until disbursement thereof was properly authorized in violation of Section 475.25(1)(k), F.S.; and having violated the provisions of a prior Final Order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), F.S. BACKGROUND, PROCEDURE, AND PRELIMINARY STATEMENT All of the allegations of the Administrative Complaint herein arise from Respondent's performance under a prior settlement Stipulation and resultant Final Order of the Florida Real Estate Commission, requiring, among other matters, restitution by Kevin S. Hawkins, Respondent herein. Although the Department of Professional Regulation (DPR) initiated the instant proceeding by the above-referenced four count Administrative Complaint which had been referred to the Division of Administrative Hearings for evidentiary hearing pursuant to Section 120.57(1), F.S., DPR then moved to relinquish jurisdiction to the Florida Real Estate Commission upon grounds that the Stipulation in the prior case covered the contingency of non-performance of the required restitution and further provided, under such circumstances, for Respondent's appearance by informal hearing before the Commission. The prior Hearing Officer on the case denied that motion by an order entered June 2, 1988. At formal hearing, DPR renewed its motion to relinquish jurisdiction which the undersigned took under advisement for resolution within this Recommended Order. The motion is here denied and the reasons there for are addressed within the Conclusions of Law, infra. At formal hearing, Respondent's responses to Petitioner's Request for Admissions were recognized without objection. In anticipation that there might be no transcript, these admissions were admitted as Petitioner's Exhibit 1, for clarity of the record. Petitioner presented the oral testimony of Respondent Kevin S. Hawkins, James Mitchell, and Frederick Wilsen, and had eight exhibits admitted into evidence. Respondent presented the oral testimony of Margaret Tripp and Grant Bartells and testified on his own behalf. Respondent had four exhibits marked for identification, none of which were admitted in evidence. A transcript of the proceedings has been provided, and each party has submitted proposed findings of fact and conclusions of law outside the 10 day period stipulated/imposed at formal hearing. Because each party's proposals were late-filed and since each party filed formal proposals prior to completion of this Recommended Order, the respective proposals have been considered by the undersigned and the findings of fact therein are ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S. Likewise, the undersigned has not sua sponte struck Petitioner's proposals due to their submittal on the wrong size paper, in violation of Rule 22I-6.003(8), F.A.C.
Findings Of Fact Petitioner Department of Professional Regulation, Division of Real Estate is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30 and Chapters 120, 455, and 475, F.S., and the rules promulgated pursuant thereto. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0200419 in accordance with Chapter 475, F.S. The last license issued to Respondent was issued as a nonactive broker with a home address of P.O. Box 650488, Vero Beach, Florida 32965. The Florida Real Estate Commission rendered a Final Order filed April 24, 1987 which adopted a Stipulation entered into by the Respondent and the Commission. The Stipulation was drafted by Respondent's prior attorney and Mr. Mitchell, who at that time was the attorney for the Department of Professional Regulation, Division of Real Estate (DPR). The Stipulation terminated prosecution of Respondent on several cases by the DPR. Mr. Mitchell acknowledged that as DPR attorney he was the prime draftsman of the Stipulation, and that the restitution contemplated therein was a pro rata return of all time share auction monies held by Respondent or Resort Condominium Resales, a company owned and controlled by the Respondent, which company had also been named as a Respondent in the previous cases resulting in the Stipulation, but that full repayment to each investor of all monies invested by him/her with Respondent or with Respondent's company was never contemplated by the terms of the Stipulation. The Stipulation, in pertinent part being paragraph 7 provided as follows: Respondents agree to make restitution to all owners entitled to restitution of those advance fees being maintained by the Respondents. The Respondents shall make restitution within six (6) months of the filing of the Final Order of the Stipulation. Should restitution not be made as agreed herein, the Respondent shall appear before the Florida Real Estate Commission at a Section 120.57(2), F.S. informal hearing for the violation of failing to abide by a lawful order of the Commission pursuant to Section 475.25(1)(e), F.S. The Stipulation contained no mention of any specific amount of restitution to be made and the DPR staff in general had no prior experience with the handling of time share auction cases of similar nature, so in order to facilitate and ensure the Respondent's compliance with the Stipulation/Final Order, DPR provided an investigator, Grant Bartells, to monitor the Respondent's efforts at compliance. DPR and its several attorneys interpreted the Stipulation/Final Order to require that a bank account of several commingled funds totalling upwards of $300,000 should be reduced to a zero balance by October 25, 1987. Contrariwise, Respondent and the DPR investigator, Bartells, interpreted it to mean that by that date all restitution checks should be mailed out to those persons who had been determined by Respondent and Bartells to be owed any restitution. Mr. Bartells and an associate travelled to Respondent's office in Vero Beach and spent several days going over his books. Respondent provided Margaret Tripp to assist them in their review of his affairs. Approximately, May 31, 1987, the sum of $211,357.81 was agreed between Bartells and his associate and Respondent to be the opening or beginning balance of funds available from auction proceeds for purposes of the agreed pro rata restitution of advance fees. In reaching this amount, Bartells subtracted the amounts owed by Respondent for the expenses attendant upon holding two time share auctions he had held previously. The Administrative Complaint herein does not address this use of the funds, and, indeed, Mr. Mitchell and Mr. Wilsen conceded that it was appropriate for Bartells and the Respondent to have made such a deduction before commencing the restitution process. The Respondent issued or caused to be issued between June 22, 1987 and July 28, 1987 approximately 715 checks as pro rata restitution to investors. Before this was done, the DPR investigators checked, reviewed, and audited the amounts. Although this check, review, and audit were not of the same quality as a certified public accountant might have performed, and although Mr. Bartells relied in large part on the cooperation and candor of Respondent and Miss Tripp to show him the account these monies were from and to explain the amounts, nature, and sources of those monies, Bartells' methods were in accord with DPR standard operating procedure for analogous cases. On or about June 22, 1987, the Respondent also issued or caused to be issued and delivered check #1136 in the amount of $21,647.25 made payable to Resort Condominium Resales. On or about June 26, 1987, the Respondent also issued or caused to be issued and delivered check #1137 in the amount of $419.00 also made payable to Resort Condominium Resales. Before making these payments/withdrawals against the $211,357.81 res established by consent and cooperation between the DPR investigators and Respondent, the Respondent represented orally to Mr. Bartells that the amounts reflected in the two checks were earned commissions and asked what he should do with them. It was Respondent's position that these amounts had been inadvertently and improperly commingled in the restitution account as part of the $211,357.81 when they should not have been because they were never part of the time share auction deposit proceeds (advance monies). Mr. Bartells responded, "If you had a deal and a contract and it is completed; both parties are satisfied, I don't see how anybody can tell you you can't take your commissions but you never should have put them in there." Mr. Bartells readily admitted that he had no actual, explicit authority delegated by DPR or the Commission to render legal opinions, but every element of this case bespeaks his apparent authority to bind the agency in all matters regarding the restitution process. In reliance on Mr. Bartells' statement and apparent authority, Respondent paid to his company the two checks totalling $22,066.25. Except for the testimony of Mr. Mitchell that in drafting the original Stipulation he did not contemplate that any monies would be taken out of the escrow account or otherwise retained for Respondent's use, there is no record evidence to suggest that the total $22,066.25 was not earned commissions as represented by Respondent. At the time of entering into the Stipulation, no one totalled what was in the Respondent's existing account which started at upwards of $600,000, and in the course of drafting the Stipulation, there was never any discussion as to the amount of money remaining in the account. In the course of the restitution process, the monitor for DPR, Mr. Bartells, relied largely on Respondent's representations, and no one from DPR reviewed any underlying documentation of the amounts and accounts voluntarily offered up by Respondent. No one at DPR seems to have questioned how $600,000 became $300,000, and the further reduction to a starting figure of $211,357.81 was both contemplated by the original Stipulation and was retroactively authorized by Mitchell's and Wilsen's testimony at formal hearing. Although Mr. Mitchell conceded that the Respondent would be entitled to any commissions the Respondent had earned, Mitchell did not find the Respondent's representations to be credible. Because the prior cases against Respondent which had been settled by the Stipulation/Final Order had included counts involving failure to account for funds, Mitchell did not believe that the two check amounts Respondent paid to his company were, in fact, Respondent's earned commissions on purchase money. However, Respondent's testimony that he created the $211,357.81 reimbursement account in question after the Stipulation/Final Order was entered into and accidently commingled the funds then in his haste to comply with the Stipulation/Final Order is credible and unrefuted. The foregoing finding in no way reflects unfavorably on Mr. Mitchell's credibility, but never having audited or had hands-on experience with the specific monies, as did Bartells and Respondent, Mitchell's impressions alone cannot refute the fact evidence of the other witnesses. Mitchell merely felt that these amounts constituted advance monies which were covered by the restitution Stipulation, but there is no clear, affirmative proof that such is, in fact, the case. At some point before or after October 24, 1987 (six months after the Final Order), Respondent learned that some of the checks which he had sent to parties who had been determined to be entitled to pro rata restitution had not cleared the bank. Some checks were returned to Respondent as unclaimed mail; some were not returned but nonetheless never were cashed. As of February 23, 1988, the balance in the account established for restitution remained at $10,079.33, so Respondent, in responding to DPR inquiries, requested the assistance of the DPR by two letters of that date. The tone of these letters suggests nothing other than an effort on Respondent's part to comply with the spirit of the Stipulation and Final Order. For instance, in one letter he states: Please find my statement regarding compliance with paragraph 7e. Current balance is 10,079.33. I'll await directions as how you want me to handle these funds. Enclosed you'll find the restitution records your [sic] asked for. In the other letter, the Respondent states: All checks were mailed & some did not get delivered. I complied with the stipulation to the best of my ability. I would like to turn the remaining funds over to the state and be done with this matter, as I am know [sic] longer acting as a salesman or broker, and have found employment elsewhere. The Stipulation is silent as to what Respondent should do under the circumstances. Mr. Mitchell acknowledged that no discussions preliminary to the drafting of the Stipulation either covered or anticipated that mailed checks might be returned to the Respondent. Respondent telephoned the Commission requesting information as to what to do with the $10,079.33 and was given no definitive answer. Respondent did not request an informal hearing before the Commission because he believed he had made complete pro rata restitution under the terms of the Stipulation/Final Order (see Findings of Fact 6-8, supra), and because he feared that under the terms of the Stipulation/Final Order making a request for an informal hearing before the Commission would constitute an admission that he had "violated" the Stipulation by "failing to abide by a lawful order of the Commission." Frederick Wilsen, Senior DPR attorney, described himself as "in a quandary" over what to do when he received the Respondent's letters since an informal hearing before the Commission had not been requested and since the account was not reduced to zero. Therefore, the Administrative Complaint herein was initiated.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the four counts of the Administrative Complaint against Respondent and including an advisory paragraph, as is appropriate within its agency expertise, setting forth a method for Respondent to follow in disbursing the $10,079.33 balance of the account. DONE and RECOMMENDED this 19th day of December, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2272 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2), F.S. Petitioner's PFOF 1-11 Accepted, but not necessarily adopted. Where not adopted, the proposals have been modified to eliminate subordinate and unnecessary material. 12-13 Address mixed questions of law and fact as set forth in the COL of the Recommended Order, and are rejected in part as conclusions of law (COL), not findings of ultimate fact. To the extent they may contain any assertion of fact over law they are rejected as not supported by the greater weight of the record evidence as a whole. See all FOF and COL. Respondent's PFOF 1 Covered in the introductory material. 2-3 Accepted. 4-6 Accepted except where subordinate and unnecessary. Addresses a mixed question of law and fact as set forth in the RO's COL, and is rejected in part as a COL, not a finding of ultimate fact. To the extent it contains assertions of fact over law, it is accepted as modified within the Recommended Order (RO) so as to conform to the greater weight of the credible record as a whole. Accepted as modified in FOF 11 to reflect an ambiguity in the record. Rejected as a COL or mere argument of counsel; also cumulative Rejected as a COL; covered in the COL of the RO. 11-15, and 17-20 Except where accepted within the RO, these proposals are rejected as subordinate, unnecessary, and/or cumulative. 16 Accepted. 21-22 Rejected as merely argument of counsel or recitation of testimony. COPIES FURNISHED: Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James H. Gillis, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John Joseph McHugh, Esquire 333-17th Street, Suite U Vero Beach, Florida 32960 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Should Petitioner discipline Respondent's real estate sales- person's license for alleged conduct evidencing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes?
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. In particular, Petitioner carries out its duties in compliance with Chapters 20, 120, 455 and 475, Florida Statutes and the rules promulgated under authority set forth in those statutes. At times relevant to the inquiry, Respondent was, and is now, a licensed Florida Real Estate salesperson. Her license number is 0591902. That license was issued in accordance with Chapter 475, Florida Statutes. At times relevant to the inquiry, Respondent worked as a licensed real estate salesperson for Ideal Real Estate Central Florida, Inc., t/a Coldwell Banker Ideal Real Estate in Orange City, Florida (Ideal). The broker for that firm was John S. Chinelli. On April 13, 1993, Respondent listed an exclusive right of sale for property owned by Jason and Kelly Foster at 2853 Sweet Springs Avenue, Deltona, Florida. That listing contemplated that Ideal would earn a real estate commission of 7 percent of the gross purchase price. The listing price in the exclusive right of sale was $69,900. In arriving at the sales price, Mr. Foster relied upon Respondent's advice. That advice included a consideration of the price received for the sale of comparable homes. The establishment of comparable prices as a means to arrive at the listing price for the Foster property involved the use of the Coldwell Banker buyer/seller presentation booklet, as well as a marketing analysis. The price $69,900 was chosen to attract those buyers who were looking for homes that cost less than $70,000. That choice was designed to garner more interest in the home. While the Foster home was being advertised, it was available through the multiple listing pool. Respondent showed the house two times between April 13, 1993, and May 14, 1993. This did not involve a showing to any prospective buyers. Other brokers or salespersons showed the house twice to prospective buyers, but no offers were generated from those showings. Subsequently, Respondent suggested to Mr. Foster that the Foster residence might be appropriate for her use. Respondent offered to buy the Foster property for $65,000. On May 14, 1993, Respondent and Mr. Foster entered into a contract for sale and purchase of the Foster residence. The purchase price was $65,000. Respondent deposited $500 into the escrow account managed by Ideal in furtherance of her interest in the property. The earnest money deposit was placed with Mr. Chinelli pending the closing of the sale. The contract called for Respondent to assume an existing mortgage of $63,556. The contract identified that the Respondent was a licensed real estate agent in Florida, but the purchase was not being made through Ideal. Under this contract, the real estate commission that had been contemplated initially would not be paid to Ideal and Respondent. When Respondent entered into a contract to buy the Foster property, she did not tell Mr. Foster that she would no longer be representing him as a real estate salesperson. The contract between Respondent and Mr. Foster called for a closing date on or before June 30, 1993. In entering into the agreement for Respondent to purchase the home, Respondent told Mr. Foster that she intended to personally occupy that property. Respondent never told Mr. Foster that she entered into the contract to purchase his home with the intent to sell the home to another person. Originally that was not her intention. Respondent held to the view that in the event that her purchase of the home was not concluded, Respondent would still represent Mr. Foster in his desire to sell the home. This is taken to mean that she would be representing Mr. Foster as a real estate salesperson. Sometime around June 20, 1993, Kai and Denise M. Hansen, husband and wife, contacted Ideal to show the Hansens property in the Deltona area. Respondent assisted the Hansens in this pursuit, acting as a real estate salesperson. There was no written agreement between Respondent or her firm signed with the Hansens to represent them in their attempt to purchase a home. Respondent showed the Hansens 8 to 12 homes in the Deltona area. The Hansens were not interested in purchasing those homes. At that point, Respondent suggested that the Hansens look at the home that she was purchasing from Mr. Foster. Respondent told the Hansens that Respondent was buying the Foster house from the Fosters who were moving out of town and that Respondent was helping the Fosters "out of a bind." Respondent told the Hansens that the home might be "too big for her anyway." Respondent told the Hansens that if she could help the Hansens out she would sell the Foster home to the Hansens if the Hansens liked that property. If a suitable home had been found through a real estate listing, other than the Foster residence, a commission would have been paid from the seller of the hypothetical house to the broker for Ideal. In that circumstance, the Hansens would not be responsible for paying a commission to the Respondent or Ideal. The properties other than the Foster property which Respondent was showing the Hansens were shown by Respondent as a sub-agent for the sellers. Respondent showed the Hansens the Foster residence during the week of June 20, 1993. On June 24, 1993, Respondent entered into a contract with the Hansens for sale and purchase of the Foster property. An addendum to that contract indicated that "this contract is contingent upon seller obtaining clear Title on 2853 Sweet Springs, Deltona, FL." The Hansens paid a $1,000 earnest money deposit toward the purchase of the Foster property. That deposit was placed in the escrow account for Ideal. That deposit was to be held until the closing date scheduled for July 16, 1993. Again, it was not contemplated that a real estate commission would be paid to Respondent and Ideal. The price arrived at between Respondent and the Hansens to purchase the Foster property was $72,500. Initially, Respondent had offered to sell the property for $73,000. The Hansens counter-offered to pay $72,000 leading to the final purchase price of $72,500. The contract between the Respondent and the Hansens called for an assumption of a mortgage in the amount of 63,500. Although Respondent had advised the Hansens that the property was being purchased from the current occupants, the Fosters, Respondent did not advise the Hansens of the price the Respondent was paying the Fosters to purchase that property. Respondent never advised the Fosters that the Hansens had sought to purchase the Foster home and that Respondent had entered into a contract with the Hansens for the Hansens to purchase that property. On June 29, 1993, the closing occurred between Respondent and the Fosters and a warranty deed was prepared noting the change in ownership. At the closing Respondent told the Fosters that she still intended to occupy the home. On July 16, 1993, the closing occurred between the Respondent and the Hansens and a warranty deed was drawn conveying the property from the Respondent to the Hansens. As established by Mark A. Carper, a real estate appraiser, the value of the Foster property on April 13, 1993 was between $65,000 and $72,500. In anticipation of moving into the Foster home, Respondent had made arrangements to move out of the residence where she had been living by giving notice that she intended to move.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be entered which dismisses the administrative complaint against Respondent. DONE AND ENTERED this day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 William A. Parsons, Esquire Woerner & Parsons 2001 South Ridgewood Avenue South Daytona, Florida 32119 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Gladys A. Gibbons is licensed as a real estate broker by the Florida Real Estate Commission under license number 0031192 and has been so licensed at all times material to this case. During such time she was employed as the broker for Gregoire-Gibbons, Inc. Respondent Dorothy M. Comolli is licensed as a real estate salesman under license number 00336387 issued by the Florida Real Estate Commission and has been so licensed at all times material to this case. During the period in question here she was employed by Gregoire- Gibbons, Inc. and was supervised by Respondent Gladys A. Gibbons. On March 3, 1981 Ms. Dorothy Hawks listed her residential property located at 2349 Third Avenue North, St. Petersburg, Florida, for sale with Mr. Gerald O'Conner, a real estate salesman employed by Humpe Roney, Inc., in St. Petersburg, Florida. On July 1, 1981 Respondent Dorothy Comolli called Mr. O'Conner to tell him that she had a contract on Ms. Hawks' property. The offer which Ms. Comolli presented on behalf of Ms. Hortense Willoughby was an option to purchase with a lease. When the offer was presented to Ms. Hawks she demurred about the option and counteroffered with a lease and a contract for sale which provided for closing within one year. On a document entitled Real Estate Purchase and Sale Agreement dated July 1, 1981 the parties negotiated the terms of the property sale. Their handwritten amendments to the form contract were later incorporated into a real estate purchase and sale agreement dated July 14, 1981 which was executed by Ms. Willoughby but never signed by Ms. Hawks. With respect to the rental portion of the transaction the first contract was a receipt for deposit and agreement to lease dated July 19, 1981 presented through Ms. Comolli with a promissory note in the amount of $500 attached as a security deposit for the last month's rent on Ms. Hawks' house. The text of the receipt recited that the lease was for a period of one year with monthly payments of $500 a month to begin on August 15, 1981. It further provided for $200 "security" plus $500 for the last month's rent in a three-month promissory note. Both the note and the receipt for deposit and agreement to lease were presented by Ms. Comolli to Carol Denker at Humpe Roney, Inc. Ms. Denker had taken over Ms. Hawks' account due to the vacation of Mr. O'Connor. In addition to these documents Ms. Comolli gave Ms. Denker $200 as an earnest money deposit on the sale of the house. Ms. Denker in turn gave Ms. Comolli a receipt for the $200 but later returned the $200 to Ms. Comolli as it is customary for the agent of the purchaser to hold the deposit. The form of the promissory note and the receipt for deposit and agreement to lease were not acceptable to Ms. Denker. She had been instructed that promissory notes witnessed by a realtor were a bad business practice and were not acceptable to Humpe Roney, Inc. Ms. Denker therefore gave Ms. Comolli a promissory note form acceptable to Humpe Roney for Ms. Willoughby to execute. Ms. Denker then attempted to contact Ms. Hawks to let her know about the promissory note but was not able to reach her. On July 21, 1981 Humpe Roney prepared on its forms, a contract for sale of real estate and a receipt for deposit and contract for lease. The record is not clear why Humpe Roney wanted the contracts rewritten. After they had been redrawn Ms. Comolli picked them up, had Ms. Willoughby sign them, and returned them to Humpe Roney for Ms. Hawks' signature. These two documents which were executed by Ms. Willoughby and Ms. Hawks finally constituted the agreement between the two parties. Neither document recites that the last month's rent would be paid by Ms. Willoughby in the form of a promissory note. The record is not clear why the final contracts as redrawn by Humpe Roney did not reflect the $500 promissory note. The deletion of any mention of the note was not at the request of either Respondent and does not appear to have been done intentionally by Humpe Roney. At no time was Ms. Hawks aware that a promissory note would be provided instead of cash for the last month's rent. Ms. Willoughby moved into the house on August 4, 1981. She stayed there for the months of August, September and October and part of November when she defaulted on the promissory note which was due on November 15, 1981. Upon her default she was evicted from the house. She is still in default on the promissory note and has no funds with which to pay it. When Ms. Hawks made a demand upon Gregoire-Gibbons for the $200 earnest money deposit plus the $500 last month's rent she received $200 and the $500 note. 2/
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 filed against Gladys A. Gibbons and Dorothy M. Comolli. DONE and RECOMMENDED this 9th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 9th day of February, 1984.
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 In Spring, 1976 Menkes was employed by FAR to secure property listings for resale. At that time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Menkes. FREC introduced no evidence to show that Menkes represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Menkes either made the representations or knew them to be false. There was no evidence introduced to show that Menkes knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Menkes was dishonest or untruthful.
The Issue Whether Respondent committed various violations of Chapter 475, Florida Statutes, sufficient to justify the imposition of disciplinary measures against her license as a licensed Real Estate Salesperson.
Findings Of Fact Respondent Barbara Gordon Schneider, at all times material to this matter, was a licensed Florida Real Estate Salesperson, holding license no. 0481077 with an address of 5825 Indian Trail, Keystone Heights, Florida 32656-9773. As a consequence of previous disciplinary action, Respondent’s license has been suspended since February 17, 1995, due to non-payment of a fine. Basically, that case revolved around a finding of Respondent’s guilt of culpable negligence and operating as a broker while licensed as a salesperson. Respondent did not inform her then current employer, Coursey and Associates Real Estate (Coursey and Associates) of the February 1995 suspension of her license. Additionally, as documented by a certified copy of judgment admitted at final hearing as Petitioner’s Exhibit 2, Respondent also failed to notify Petitioner of Respondent’s plea of guilty to a felony charge of obtaining property in return for a worthless check in the Fourth Judicial Circuit, Clay County, Florida, on December 19, 1989. Adjudication was withheld by the Court and Respondent was placed on probation for 18 months. On or about July 14, 1995, while employed as office manager and selling manager for Coursey and Associates, Respondent prepared a contract for sale and purchase for Flint and Jessica Banther as buyers for property located at 2276 Chablis Court, West, Orange Park, Florida. Also, Respondent negotiated an occupancy agreement whereby the Banthers agreed to rent the property they were planning to purchase. Kevin Coursey, the broker for Coursey and Associates, had no knowledge of this transaction although Respondent signed the occupancy agreement on behalf of Coursey and Associates. On or about July 14, 1995, the Banthers gave Respondent a $500 cash binder for the purchase of the Chablis Court property. The money was not turned over to her employer by Respondent. Respondent had previously procured, on or about May 17, 1995, a listing agreement on behalf of Coursey and Associates for a home owned by Gary J. and Agnes Beagles which was located at 4854 Gopher Circle North, Middleburg, Florida. Respondent rented the Beagles’ home to Christine and Jim Weaver, without the knowledge or permission of Kevin Coursey on behalf of Coursey and Associates. Coursey and Associates were not in the business of brokering rental property and had no insurance to cover such activity. Respondent was accepting checks from the Weavers and depositing them into the Beagles’ bank account. On or about June 23, 1995, Christine Weaver made check no. 2952 in the amount of $250 payable to Coursey and Associates. Respondent endorsed the check by writing “Coursey & Assoc.” On the back of the check and signed her name with “co-owner” written under her name. Kevin Coursey did not authorize Respondent to endorse the check. Respondent never informed Kevin Coursey of the check’s existence and deposited it into her personal bank account at the Jax Navy Federal Credit Union without Coursey’s authorization. Respondent also procured renters for the Weavers’ home without the knowledge and consent of her employer. Initially, Robert and Pamela Campbell, the renters of the Weaver home, gave Respondent a check which was returned for insufficient funds. When the check was returned, the Campbells gave Respondent cash in the amount of $600 in place of the check. Respondent did not turn the cash over to the Weavers and, as a result, Coursey and Associates were later compelled to pay the Weavers the $600. Sometime around July 26, 1995, Respondent prepared a contract for sale and purchase for Charles Crum as the buyer of property located at 5615 Indians Trail, Keystone Heights, Florida. Crum gave Respondent a binder for the property consisting of three money orders totaling $500. The money orders were payable to Coursey and Associates, but Respondent did not deliver the funds to her employer. Approximately three weeks later, Respondent did deliver the binder, in the form of a different set of money orders, to Kevin Coursey. At some point prior to July 30, 1995, Respondent negotiated the rental of property owned by Mr. and Mrs. Richard J. Connell. The renter was James Cawley. This was accomplished without knowledge or consent of Kevin Coursey, although Respondent led the Connells to believe that the property was being rented through Coursey and Associates. The Connells never received the cash security deposit paid to Respondent by Cawley. By letter dated September 19, 1995, Richard J. Connell and James L. Cawley informed Coursey and Associates of Connell’s entry into a rental agreement with that firm on February 25, 1995. Respondent had negotiated the agreement which provided that Cawley would initially rent the property for $350 a month until he established credit for the purchase. Respondent, it was agreed, on behalf of Coursey and Associates, would collect the rent every month. Coursey and Associates would receive a ten percent commission on the rental proceeds and also retain $65 per month in escrow for repairs. Respondent signed the Connells’ names to the agreement without their consent. Respondent left the employ of Coursey and Associates, without notice, on or about July 30, 1995, and contacted Martha J. O’Shields, co-broker for Century 21 Bryant and O’Shields Realty, about coming to work for O’Shields. Respondent did not tell O’Shields that Respondent’s salesperson license was suspended. O’Shields hired Respondent. On or about August 2, 1995, Respondent negotiated a contract for sale and purchase of the property owned by the Beagles. Coursey and Associates were, of course, the listing agents. Instead of presenting the offer to Coursey and Associates, Respondent presented the offer directly to the owners. Respondent signed the contract on behalf of Coursey and Associates, although she was then working for O’Shields. Respondent had the buyers of the property sign a consent to dual agency although she was not acting as a dual agent and had not been authorized by O’Shields to present the offer in this fashion. On or about August 2, 1995, Respondent proceeded to list the buyers’ property located at 1594 Twin Oaks Drive West in Middleburg, Florida, on behalf of Bryant and O’Shields. O’Shields discovered on or about August 15, 1995, that Respondent had taken all files upon which she was working from the office. By letter dated August 18, 1995, O’Shields notified Petitioner that she had terminated Respondent’s employment on August 15, 1995. According to O’Shields’ notification, Respondent had sales pending and O’Shields had not been previously aware of Respondent’s license suspension.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding Respondent guilty of counts I through V, counts VII through VIII, counts X through XII, counts XV through XVI, and counts XIX through XXI of the Administrative Complaint and revoking Respondent’s license. DONE AND ENTERED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801-1772 Barbara Gordon Schneider 5086 Granny's Place Keystone Heights, Florida 32656 James Kimbler, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact From December 12, 1975, to June, 1976, Steiner was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners where names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. Steiner, although a salesman and not a broker, was the person responsible for running the operations of the FAR. A Mr. Lawrence Mann was employed as a figure-head broker for FAR and named as its president. Mann's only duties were to insure that all salesmen employed were properly licensed with the Real Estate Commission. Steiner hired and fired salesmen, sometimes took over difficult listing cases, provided the preplanned sales pitch for the salesmen and generally supervised the over-all operation. Steiner had a monitor in his office so that he could listen in on telephone calls being made to prospective clients. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. However, Steiner would set the listing price for the property after receiving a description of the property from the salesman. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Steiner. FREC introduced no evidence to show that Steiner represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Steiner either made the representations or knew them to be false. There was no evidence introduced to show that Steiner knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Steiner was dishonest or untruthful.
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violations of Sections 475.25(1) (a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florida Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent James Henkel appeared at the hearing after it had commenced unaccompanied by legal counsel. The Hearing Officer advised him of his rights in the administrative hearing. Respondent Henkel is a registered non-active real estate sales percentian, and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 4).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwin who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James H. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for it. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to, sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to' assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that the property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowner "service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, in fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent James Henkel be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James Henkel c/o Dory Auerbach 456 Northeast 29th Street Miami, Florida 33137
