Findings Of Fact From February 5, 1976, to March 31, 1976, Rosenbaum 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 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 Rosenbaum. FREC introduced no evidence to show that Rosenbaum 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 wring to purchase United States property listed with the company. There was no evidence introduced to show that Rosenbaum either made the representations or knew them to be false. There was no evidence introduced to show that Sherman 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 Rosenbaum was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Rosenbaum was guilty of a violation of a duty imposed by law.
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact From December 29, 1975, to January 13, 1976, Reed 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 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. Respondent's correct name is Daniel L. Reed and no evidence of pseudonyms or aliases was introduced. While there was evidence introduced to indicate that a Mr. and Mrs. Norman G. Schmidt of McLean, Virginia, had telephone conversations with a representative of FAR named Reed, the first names do not coincide. The Schmidts testified that the first name of the Reed that they talked with was Ben and not Daniel. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Reed. FREC introduced no evidence to show that Reed 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 Reed either made the representations or knew them to be false. There was no evidence introduced to show that Reed knew than 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 Reed was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Reed was guilty of a violation of a duty imposed by law.
Findings Of Fact George A. Heyen is a duly registered real estate salesman with the Florida Real Estate Commission, and was so registered and has been so registered continuously since October 1, 1972, as evidenced by Petitioner's Exhibit number 1. While serving in the capacity as a real estate salesman, the Respondent entered into a listing agreement with one Thomas S. Bowers and Brenda L. Bowers, his wife. This agreement was drawn on December 11, 1973 and is Petitioner's Exhibit number 4. On February 6, 1974, a purchase and sell agreement was drawn up by the Respondent and entered into between Maria A. Hindes and the Bowers. This purchase and sell agreement is Petitioner's Exhibit number 3. This contract of February 6, 1974 was submitted to Molton, Allen and Williams, Mortgage Brokers, 5111 66th Street, St. Petersburg, Florida. The contract, as drawn, was rejected as being unacceptable for mortgage financing, because it failed, to contain the mandatory FHA clause. When the Respondent discovered that the February 6, 1974 contract had been rejected, a second contract of February 8, 1974 was prepared. A copy of this contract is Petitioner's Exhibit number 5. The form of the contract, drawn on February 8, 1974, was one provided by Molton, Allen and Williams. When, the Respondent received that form he prepared it and forged the signature of Mr. and Mrs. Bowers. The explanation for forging the signatures as stated in the course of the hearing, was to the effect that it was a matter of expediency. The expediency referred to the fact that the parties were anxious to have a closing and to have the transaction completed, particularly the sellers, Mr. and Mrs. Bowers. Therefore, in the name of expediency the signatures were forged. Testimony was also given that pointed out the Bowers were very hard to contact in and around the month of February, 1974, and some testimony was given to the effect that the Bowers made frequent trips to Ohio, but it was not clear whether these trips would have been made in the first part of February, 1974. The Bowers discovered that their name had been forged when they went to a closing on April 11, 1974. They refused to close the loan at that time. On April 24, 1974, a new sales contract was followed by a closing which was held on April 26, 1974 and a copy of the closing statement is Petitioner's Exhibit number 6. The Respondent has received no fees or commissions for his services in the transaction and there have been no further complaints about the transaction. Prior to this incident, the Respondent, George A. Heyen, was not shown to have had any disciplinary involvement with the Florida Real Estate Commission and has demonstrated that he has been a trustworthy individual in his business dealings as a real estate salesman.
Recommendation It is recommended that the registration of the registrant, George A. Heyen, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George A. Heyen c/o Gregoire-Gibbons, Inc. 6439 Central Avenue St. Petersburg, Florida 33710
Findings Of Fact Prestige Realty, Inc. and Anthony C. Cappello were at all times here relevant registered with the FREC as alleged. Mrs. Cappello, wife of Respondent, is a salesperson with Prestige Realty, Inc. Prestige Realty, Inc. is an Electronics Realty Associates (ERA) franchisee and actively promotes the ERA Homeowners warranty Plan which will, for a fee, warrant to pay for repairs to structure and equipment within the first year of purchase all costs over the minimum for which the policy is written. While showing prospective purchasers William and Dora Keys various properties, Mrs. Cappello told them about the ERA Buyers Protection Plan (BPP) and the Keys expressed an interest in having same, particularly if the seller would pay for it. Mrs.. Cappello has worked with the Keys for several months showing them various properties for sale. Thomas Hanrahan listed his home for sale with B & M Real Estate as listing agent at a price of $52,000 on 31 January 1977. On April 28, 1977 Mrs. Cappello obtained an offer from William and Dora Keys to purchase Hanrahan's house for $49,000. Keys had inherited some money, and after seeing the Hanrahan house which they liked, made an offer to purchase the property for $49,000 including the drapes and BPP. Inclusion of the BPP in the offer was suggested by Respondent Cappello and/or Mrs. Cappello. The fact that an offer had been received was communicated to the listing salesperson and the listing agent met the Cappellos to present the offer to Hanrahan. Respondent Cappello, who had accompanied his wife to present the offer, first discussed the contract conditions, including drapes and BPP, before revealing the offering price to Hanrahan and the listing broker's agent. When Respondent revealed the $240 premium for BPP Hanrahan remarked it was a "rip- off"; however, Respondent Cappello emphasized that the seller shouldn't mind paying this premium if the selling price of the home is right. After obtaining Hanrahan's agreement to the BPP "if the price is right', Respondent disclosed the offering price of $49,000. Hanrahan refused this offer and made a counter offer of $51,000, which was communicated to the buyers who re-countered with a $50,000 offer. At no time during these negotiations did Respondents advise Hanrahan that Prestige Realty would receive 25 percent of the premium the contract provided the seller would pay for the ERA BPP. Of the $240 premium paid for the BPP, $C0 was retained by Respondent, Prestige Realty, and the remaining $180 was forwarded to ERA. When the offer of $50,000 was presented to Hanrahan by Respondent Cappello, it was represented to be the buyers' final offer, that the ERA BPP was an essential element of the offer, and if not accepted by the seller they would find the buyers another house. The Keys never insisted to Cappello that the BPP be included in their offer, and both William and Dora Keys testified they would have paid $50,000 for the Hanrahan home without the BPP. Attempts by Hanrahan to share the cost of BPP with the buyers or discourage their insistence upon having this policy provided were rebuffed by Respondents. Following the closing the Keys were offered the option of taking a lower deductible on the BPP than $100, but after being advised the additional cost to them for a lower deductible, it was declined. Respondents and other ERA franchisees consider the BPP to be a good selling tool in the conduct of their business. In addition to the BPP, ERA offers a sellers protection plan which, if the seller lists his house with an ERA franchisee and agrees to pay for a BPP when the house is sold, will insure the seller from failure of certain equipment (less a deductible) during the period the house is listed before sale.
Findings Of Fact From September 22, 1975, to December 24, 1975, Kopf 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 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. In November of 1975, Kopf telephoned Mr. Harold E. Triplett, a resident of Pomeroy, Ohio. Mr. Triplett was the owner of two lots in the Cape Coral residential development. Kopf represented to Mr. Triplett that he, Kopf, had a buyer for the Triplett property which was a foreign company seeking tax advantages. Kopf guaranteed that the property would be sold by November 29, 1975. November 29 came and went without a closing on the Florida property. This, notwithstanding the fact that Kopf had advised Triplett that the property was already sold and that the $347.20 check that Triplett had sent to Kopf was for closing costs. Triplett tried unsuccessfully to contact Kopf but was advised that the telephone had been disconnected. Notwithstanding the fact that FAR had never resold any of its listings Kopf represented to Triplett that he had successfully concluded similar transactions. As to the remaining allegations numbered 1, 3 and 4 above, there was a total absence of evidence and, hence, a failure of proof as to misrepresentations of those facts. FREC introduced no evidence to establish that the prices for which the properties were listed were reasonable listing prices and further introduced no evidence to show that Kopf represented that the property would be advertised nationwide and in foreign countries, or that the company had foreign buyers wanting to purchase the property listed with FAR, with the exception of Kopf's property, or that such representations, if made, were false. However, the evidence establishes that Kopf represented that the property would be sold within 30 days of the listing, which representation was false, and that Kopf knew that the representation was false.
Findings Of Fact Respondent Nelly Dijkman is now and was during the year 1977 registered with the Florida Real Estate Commission as a broker/salesman employed by Cousins Associates, Inc., 5830 Southwest 73rd Street, South Miami, Florida. (Stipulation) On January 14, 1977, Brian M. Foley and his wife, Leslie W. Foley, executed a listing agreement with Cousins Associates, Inc., South Miami, Florida, for the sale of their residence located at 7740 Southwest 143rd Street, Miami, Florida. The exclusive listing agreement was executed by Respondent on behalf of Cousins Associates, Inc., and provided for a three month period in which that firm would have the exclusive right to sell the property for a price of $87,500.00 at a commission of 6 percent of the selling price. It also provided that the realtor would have the property placed in multiple listing with the Kendall-Perrine Real Estate Computer Service, Inc., and that any sales derived from co-brokerage would be subject to an equal division of the real estate commission. Respondent had shown rental property to the Foleys prior to their purchase of the property which was the subject of the listing agreement. She also showed them prospective properties for purchase for some time prior to January 1977 and continued to do so during succeeding months. The listing agreement was renewed on May 10, 1977, for another three months with a selling price of $84,500.00. On that date, the parties also executed an agreement to place the property in the multiple listing service of the Coral Gables Board of Realtors. (Testimony of B. Foley, Petitioner's Exhibit 2.) During the period January-June 1977, Respondent showed the Foleys approximately 20 houses that were for sale in the area. On June 26, 1977, they made a written offer on property located at 6450 SW 92nd Street, Miami, Florida, and placed $500.00 in escrow with Respondent as a deposit. On the same date, Rosalie Kotok, a broker with Sunniland Realty, and Howard Richards, made an offer to purchase the Foley property for $77,000.00. The selling price of the property had been lowered by the Foleys to $79,900.00 on June 19th. The offer was made on behalf of Kotok and Richards through an associate with Sunniland Realty, Ruth Hanrahan. Mr. Foley advised Respondent that he would not sell the house for less than $79,000.00 and asked her to transmit the counteroffer to the prospective purchasers. On June 27 Respondent transmitted Foley's counteroffer of $79,000.00 and Kotok increased the offer to $78,000.00. Respondent told Mr. Foley of this offer by telephone that afternoon and he declined to reduce his asking price of $79,000.00. Respondent then obtained authorization from her broker, Jane C. Cousins, to reduce their share of the real estate commission $1,000.00 in order to effect the sale, based on the Foleys' "cooperation to work with us to purchase another home." Mr. Foley accepted this arrangement for the sale of the house on June 27. The sales purchase agreement with Kotok and Richards reflected execution by the Foleys on June 28, 1977. They executed an agreement, dated June 29, 1977, to purchase the house on which they had made the June 26 offer. (Testimony of Respondent, Cousins, B. Foley, Petitioner's Exhibit 2, Respondent's Exhibits 2-4.) On the morning of June 27, John P. Marangos, a broker/salesman registered with South Dade Realty, Inc., called Respondent at her home and told her he had a "hot prospect" to show the Foley house. Respondent told him that there was a contract being negotiated at that time on the property, but that he could certainly show the house because of the property, but that he could certainly show the house because of the possibility that the pending deal might not materialize. She left the key to the Foley house in her mail box for Marangos to pick up. About twenty minutes later, Marangos came back and was not responsive when Respondent asked him how his clients had liked the house. Respondent then told him that she had several other properties that they might be interested in and he said that he would consider showing them on another day. (Testimony of Respondent.) About a week after he had sold his home, Mr. Foley received a telephone call from an unknown person from South Dade Realty, Inc., who told him that Marangos had wanted to buy his house and had made an offer of purchase. Foley called Marangos who allegedly told him that he had informed Respondent that he had a written contract for $78,900.00 on the Foley house, but that Respondent had told him that the house was sold. Foley testified that he then asked Respondent about the offer and she told him that it was not her duty to inform him of any other contract. He further testified that about a week after his initial conversation with her, Respondent told him that she did, in fact, have an offer from Marangos but did not want to present it because he had a very bad reputation for making offers on houses and not following through. He also testified that in his conversations with Respondent, she told him that she was aware of the amount of the offer made by John Marangos but that she did not pay any attention to it because he had a bad reputation. In contrast to Foley's testimony, Marangos testified that he and his wife had looked at the Foley house on June 27 after obtaining the key from Respondent. They decided to make the purchase in their own behalf and he therefore returned to his office, wrote a contract by hand, plus a check for $5,000.00 as a deposit on his bank account. He then called Respondent to tell her that he would like to present a contract on the house and she told him that a contract was being negotiated on the property at the time. She also allegedly told him that the sellers had until six o'clock that evening to respond to the pending offer and that she did not want to confuse the issue by having all kinds of contracts coming in. He testified that he called her that evening and she told him that the house was sold. Although Marangos' testimony confirmed Foley's version that his offer was for $78,900.00, he denied telling Respondent the amount of his offer or that it was in his own behalf. He further testified that one-half of the real estate commission would go to his firm if his offer had been accepted. He denied talking to Respondent when he returned the Foley key and said that he had merely put it in her mail box. Marangos testified that after Respondent told him the house had been sold, he threw away the contract and check. Although he was not sure whether there was $5,000.00 in his checking account on June 27, he testified that the check would have been good because he had often transferred money from his savings account to cover the amount of the check. He did not enter the $5,000.00 on his check stubs because he customarily carried several checks around while his wife retained the check book for entry therein at a later time. Respondent, on the other hand, testified that after she heard from Foley as to the Marangos offer, she talked to Marangos and told him that she understood he had presented a contract on the house to Mr. Foley. Marangos responded that Foley had been calling him. Respondent then asked him how he was doing with his hot prospect and he said, "Well, Nelly, those hot prospects were myself and my wife." In view of the contradictory nature of the foregoing testimony and the lack of documentary evidence, it is found that Petitioner failed to establish the fact that an offer to purchase the Foley property was communicated to Respondent by Marangos on June 27, 1975, or at any other time. (Testimony of Respondent, Foley, Deposition of Marangos, Petitioner's Exhibit 1.)
Recommendation That the Administrative Complaint against Respondent Nelly Dijkman be dismissed. DONE AND ENTERED this 21st day of December 1978 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December 1978. COPIES FURNISHED: Salvatore Carpino, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Richard M. White, Sr., Esquire Suite 100 7100 North Kendall Drive Miami, Florida 33156
Findings Of Fact The Respondent has been a registered real estate salesman with the Florida Real Estate Commission from February 17, 1967, until the present. The Respondent was indicted by a federal grand jury in the Middle District of Florida and charged with devising and intending to devise a scheme and artifice to defraud certain named persons and entities by use of the mails and further charged with the commission of an overt act in furtherance of said scheme. U.S. v. Hawk, Case No. 68-47-ORL CR, U.S. District Court for the Middle District of Florida, Orlando Division. On October 11, 1968, the Respondent pled guilty to the offense of devising a scheme to defraud others and executing said scheme by use of the United States Mail and by telephone in violation of Title 18, Section 1341, U.S.C. The Respondent was sentenced to four years' imprisonment upon his plea of guilty. He served 17 months of his sentence before being paroled, which parole ended in October, 1972. The charge to which the Respondent pled guilty and was found guilty did not, in any manner, involve the sale of real property. Since his conviction and release from prison, the Respondent has worked as a real estate salesman. The Florida Real Estate Commission has shown no complaint lodged against Mr. Hawk regarding his registration as a real estate salesman from February 17, 1967, until the present, other than the complaint and allegations presently being considered. There has been no showing that Nelson F. Hawk engaged in any conduct warranting suspension of his registration as a real estate salesman other than that conviction heretofore referred to in 1968. Nelson F. Hawk is guilty of a crime against the laws of the United States involving fraudulent dealing as evidenced by the certificate of Wesley R. Thies, Clerk, United States District Court for the Middle District of Florida.
