The Issue The issue posed for decision herein is whether or not James T. Speaks, Respondent, engaged in conduct amounting to a failure to maintain in an escrow bank account deposits he received as a selling broker which were entrusted to him in the course of his brokerage activities until a proper or authorized disbursement of such monies was made. Based on its Administrative Complaint filed on May 17, 1978, the Florida Real Estate Commission, Petitioner, seeks to revoke, annul, suspend or otherwise discipline licensee James T. Speaks, who holds Florida Real Estate License No. 0083459, based on conduct which will be set forth herein in detail.
Findings Of Fact Based on the testimony presented during the course of the hearing, the following relevant facts are found: During October of 1976, Donna W. Ross was a listing broker to sell the property of Katherine Scanlon. During mid-October, 1976, Respondent Speaks located purchasers for the Scanlon property and submitted an offer to the listing broker, which offer was accepted by the seller. Respondent Speaks deposited a $1,000.00 binder deposit in his escrow account. (See FREC Composite Exhibit No. 7.) The closing of the real estate transaction in the Scanlon property took place in Attorney David Booher's office who, based on evidence received during the course of the closing, questioned Respondent Speaks as to the negotiability of a $1,000.00 check Respondent Speaks presented as a refund of the escrow deposit he had tendered to secure the deposit receipt contract for the Scanlon property. Virginia RawIs, who was formerly employed by Booher and Crabtree, Realtors, called the Barnett Bank of Regency to verify if sufficient funds were on deposit in Respondent Speaks' account and was advised that sufficient monies were not on deposit to cover the check. At that juncture, Respondent Speaks acknowledged that he had tendered a check which was drawn on an account without sufficient funds to cover it and agreed that the $1,000.00 binder deposit should be deducted from his commission monies due. This agreement was acceptable to all parties concerned at the closing and another check representing the commission monies due Respondent Speaks, less the $1,000.00 deposit, was drawn and made payable to Speaks. Donna W. Ross, the listing broker, was also present during the hearing and verified the testimony of Attorney Booher respecting the presentation by Respondent Speaks of the $1,000.00 check which was not secured by sufficient funds. As noted in the appearance section of this Recommended Order, the Respondent, James T. Speaks, did not appear during the hearing although copies of the Notice of Hearing were mailed to his last known addresses.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Registered Real Estate Broker license of Respondent, James T. Speaks, be suspended for a period of two (2) years. RECOMMENDED this 5th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At all times pertinent to the Administrative Complaint, the Respondent Kenneth Kasha was licensed by the Petitioner as a registered real estate broker. During that time period he was licensed to trade as Florida Landowners Service Bureau. At present he is the holder of certificate number 0046189, in the position of registered real estate broker. The particulars of his license may be found in Petitioner's Exhibit 4, admitted into evidence. In the years 1975 and 1976, one of the enterprises that Kenneth Kasha was involved in was the solicitation of real estate listings from out-of-state land owners who owned land in the State of Florida. This solicitation led to an agreement with some of those owners to list their property through various publications which Kasha contracted for, with the expectation that his company would make a bona fide effort to sell the property. The general description of the arrangement between Kasha, operating as Florida Landowners Services Bureau, and his owner/clients, was to have the owner pay a fee of $250 to $300 to have their property listed by Kenneth Kasha, trading as Florida Landowners Services Bureau. Kenneth Kasha solicited the owners by phone personally and through real estate salesmen who were involved in the solicitation. Kenneth Kasha's statement of his participation may be found in the deposition which is part of Petitioner's Composite Exhibit 8, the deposition being admitted into evidence. This deposition is a part of the record of the proceedings of the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums v. Kenneth Kasha d/b/a Florida Landowners Service Bureau. The deposition was taken on March 26, 1976. In that deposition Kasha was asked if he solicited for the type of listing which is the subject of this case and if he made this solicitation via the telephone. At page 39 of that deposition he states that he did and indicates that the principal place of business of Florida Landowners Service Bureau at the time of the deposition was at 561 NE 79th Street and was the place solicitations were made from. A more complete description of the techniques involved in a solicitation is given by the witness, Alfred Landin. Alfred Landin testified in the proceedings by the Petitioner against Kenneth Kasha t/a Florida Landowners Service Bureau. Mr. Landin correctly stated that he worked for the General American Realty Corporation as a real estate salesman from January, 1975 through February, 1976. His testimony established that he began to make the form of solicitation in behalf of the Florida Landowners Service Bureau in August, 1975. His participation was by agreement between the General American Realty Corporation and the Florida Landowners Service Bureau to have certain salesmen employed by General American Realty Corporation make phone solicitations for Florida Landowners Service Bureau. Those employees of General American Realty Corporation were then paid by their corporation, who had been paid by Florida Landowners Service Bureau under an agreement between that business and the General American Realty Corporation. Alfred Landin took approximately 75 to 100 listings for the Florida Landowners Service Bureau for which he charged the owner $250 to $300 for each listing. He in turn received 30 percent to 40 percent of the listing amount as his payment. He did not receive real estate commissions following any sale of the property which was listed with Florida Landowners Service Bureau. In fact, no commissions have been received, because no property has been sold under the listing agreements, at least as of the date of the Kasha deposition of March 26, 1976. In that deposition he states that none of the property listed by Florida Landowners Service Bureau had been sold. Moreover, Alfred Landin's testimony established that the salesmen who were the contact people for the solicitation for the listings were paid on the basis of obtaining the listings, in opposition to being paid commissions for selling' the property. When Landin would call a prospective owner to solicit the listing, which will now be referred to as "advance fee" listings, he did it based upon a list of prospective clients made available in the office of General American Realty Corporation. He would tell the potential "advance fee" client that the property that they listed with the Florida Landowners Service Bureau would be advertised within and without the United States. He did not indicate which form of media advertising would be utilized. Landin was unaware of the steps which Florida Landowners Service Bureau would specifically take to bring about the sale of the listed properties, because the arrangement with General American Realty Corporation was not to consummate the sale of the property through General American Realty Corporation's salesman. Landin did tell the owners that Florida Landowners Service Bureau would be responsible for advertising the properties for the purpose of sale. Furthermore, the indication was that a bona fide effort would be made to sell the property. The contact which Landin had with the out-of-state owners, in terms of the dialogue, was not by any particular script. It would be designed according to the nature of the property of the person being solicited. In the course of the conversation the property owner would submit his price and that information and other information would be forwarded to Florida Landowners Service Bureau. At all times when a prospective customer was called Landin introduced himself by name and his connection with Florida Landowners Service Bureau. The usual technique was to make an original contact call and then a follow-up call. Although a second individual working for Florida Landowners Service Bureau normally made the follow-up, call, Landin at times would make those calls. On those occasions, between the time of the initial call and the follow-up call, certain materials would be mailed to the prospective purchaser of a listing agreement. Landin identified three forms which are numbered 1, 2, and 3 and are part of the Respondent's Exhibit No. 11 admitted into evidence. They are the mailouts. (The Respondent's Exhibit No. 11 admitted into evidence is constituted of certain information pertaining to the listing of the Florida Landowners Service Bureau's "advance fee" property through the media National Multiple Listing, Inc.) In a follow-up call there would be discussion about the meaning of the listing and brokerage agreement which is number 3 in the group of documents. Landin established that in these follow-up conversations the purpose of the listing fee was brought out and the owner was told that the listing fee would be used to compensate for the costs involved of the listing; for example advertising. The three documents in Respondent's Exhibit No. 11 are the crux of the contractual agreement between Florida Landowners Service Bureau, the company of Kenneth Kasha, and his "advance fee" listing clients. The three documents in Respondent's Exhibit No. 11 are the same in their form as those documents appended to the Kenneth Kasha deposition of March 26, 1976, which has been mentioned before. In that deposition Kasha admits that those three documents were mailed out to the "advance fee" listing clients. The three documents are available for review either in Respondent's Exhibit No. 11 or the attachments to the admitted portion of Petitioner's Exhibit No. 8, which is the Kasha deposition. The significant portions of those exhibits, in terms of the factual allegations against the Respondent, begin with Paragraph 3 of the document number 1 which states, "your property legals are checked thoroughly." In his deposition of March 26, 1976 Kasha indicated that what actually occurred was that Florida Landowners Service Bureau would receive a copy of the client's deed or agreement for deed and verify this with the developer to see if it indicates on the developer's books or records that the individual actually owned a specific piece of property in question. Kasha stated that his company did not check with the title company, but did check the tax records of various counties to see whether or not the individuals owned the particular piece of property set forth in their deeds. Continuing the examination of document 1, the next sentence in Paragraph 3 states, "an ad is constructed for your property(s) and published in our brochures and catalog which is distributed to several thousand brokers and investors NATIONALLY AND INTERNATIONALLY." The advertising that was done by Kenneth Kasha t/a Florida Landowners Service Bureau, which was established in the course of the hearing is constituted of several media approaches. One of those approaches was found in Respondent's Exhibit No. 2 admitted into evidence which is a copy of a magazine February, 1976, the magazine being a publication of the International Federation of Real Estate Brokers which has membership in 39 countries. It can be seen, the advertisement is an ad which allows the purchase of a catalog for the price of $4.00 or free to the members of the International Real Estate Federation. A copy of this form of catalog is the Petitioner's Exhibit No. 12 admitted into evidence. This catalog lists multiple properties by the owner's name, the owner's asking price, and a rough description of the location in terms of the municipality if any, county, and state, subdivision or development if applicable and a rough description of the size of the parcel. The catalog would not allow the prospective purchaser to specifically locate the property. At best it would allow the location of the development or sub-division. A second form of advertising which the Respondent utilized in the time period in question was listing with the National Multiple Listing, Inc. Those listings were also multiple listings on a single page of the type previously discussed in describing the catalog. Access to those listings was based upon Kasha's purchase of circulation and it reached as many as 2,500 plus distributees in various areas of the United States. (The number assigned to the individual properties advertised by National Multiple Listing, Inc. corresponds to some of the invoices found in the Petitioner's Composite Exhibit No. 11, which invoices were paid by Kenneth Kasha to have the listings published. There is a further correlation between those numbers and the numbers affixed to the certificates issued by National Multiple Listing, Inc. to the Respondent verifying the circulation of the listings. Those certificates are found as Respondent's Exhibit No. 12 admitted into evidence.) A compilation of those payments from Kenneth Kasha, as the owner of Florida Landowners Service Bureau, to the National Multiple Listing, Inc. for the period of June, 1975 through June, 1976 may be found as Respondent's Exhibit No. 7 admitted into evidence. The total cost for advertising in that time period was $3,583.82. Kasha also advertised his catalog in the Miami Herald, the Chicago Tribune and one German paper, entitled, Blick. This advertising was in the period of late 1975 and early 1976. The advertising is established through the Respondent's Exhibit No. 12A and a portion of Petitioner's Exhibit No. 8 which is the deposition and attachments of Kenneth Kasha taken March 26, 1976. 14 The fourth paragraph of document 1 states in its initial sentence. "In order for us to successfully merchandize and receive the highest offer for your property(s) considerable expense is involved because a great deal of time is put forth on your behalf and many of the property(s) are being offered for sale sight unseen. Therefore, we must constantly furnish prospective purchasers with factual updated information re: your listing(s). Your fee helps to defray expenses of estimating value, merchandizing, advertising, brochuring and cataloging this information here and abroad." The extent of advertising and brochuring has previously been discussed. The estimate of value is based upon the individual's price and the Florida Landowners Service Bureau does not concern itself with zoning and development in trying to get the price established. This conclusion is premised on Mr. Kasha's testimony of March 26, 1976 before the Division of Florida Land Sales and Condominiums. Therefore, by Mr. Kasha's opinion there was no expense to be defrayed in estimating value. The only other merchandizing that was done other than that discussed in the advertising techniques may be found in the description by Robert Wandler who worked for Kenneth Kasha and was involved with Florida Landowners Service Bureau as a real estate salesman. The period of his employment is not established through Mr. Wandler's testimony, but it appears to be within the time frame of the Administrative Complaint and the other testimony given. Mr. Wandler stated that he tried to sell the property listed through the "advance fee" process by contacting hotels and hotel clerks who had connection with Columbian businessmen. This area of contact was in South Florida. His reasons for contacting the Columbians was due to the fact that he speaks Spanish fluently. He occasionally showed the brochures to the persons contacted, but none of those persons were interested in purchasing the property. He specifically made reference to Petitioner's Exhibit No. 12 as being the type of brochure or catalog that he showed. He also testified that on several occasions Arabian and Lebanese people in the South Florida area were contacted and seminars were held to discuss the catalog. The Arabian and Lebanese business persons did not purchase any property and did not negotiate with any of the owners for the right to purchase the property. Document No. 2, which is a document entitled, Important Facts, is found in Respondent's Exhibit No. 11. In that document is a question which asks "(Q) Will you help me establish a correct selling price for my property? (A) Yes. While we do not appraise property, Florida Landowners Service Bureau will analyze your property comparing your property to adjacent property, to arrive at a price based on recent sales of neighboring property. The price must meet with your approval. From the testimony in Kenneth Kasha's appearance before the Division of Florida Land Sales and Condominiums it is clear that Florida Landowners Service Bureau did not analyze the property by comparing the property to adjacent property to arrive at a price. They merely relied on the owner's price. One of the other questions in Document No. 2 asks the following: "(Q) How will Florida Landowners Service Bureau sell my property? (A) Review status of development and zoning in the immediate area of your property to recommend the correct selling price for you. List your property in our directory, which is distributed by mail to real estate brokers throughout the world." Kenneth Kasha in the aforementioned deposition stated that 95 percent of the time they did not document the development and zoning to set a price as the ad indicated they would do. In Document No. 3, which is a copy of the listing and brokerage agreement, one of the statements of consideration between the parties is that Florida Landowners Service Bureau as the part of their consideration will: "(b) Contemporaneously with appearance of said listing in the directory, you agree to direct the efforts of your organization to bring about the sale of my property". This should be read in pari materia with the following provision in that Document No. 3 which states: "(c) To advertise said property as you deem advisable in newspapers, magazines, or other mediums of merit". A view of the facts that were established on the question of promoting the sale of the property through advertising or other methods, demonstrates that the Florida Landowners Service Bureau in the person of Kenneth Kasha was not living up to this agreement to bring about a sale in a bone fide fashion. This leads to a consideration of the question of whether the efforts which were taken by Kenneth Kasha t/a Florida Landowners Service Bureau were so fraudulent or deficient that they constitute violations of the provisions of Chapter 475, F.S. that are alleged in the Administrative Complaint. The general contention of the Administrative Complaint in Count I is that the solicitation of the property owners was a scheme to fraudulently secure money through the "advance fee" for reason that no bone fide effort was made to sell the property listed with Kenneth Kasha, t/a Florida Landowners Service Bureau. As indicated before there was no bone fide effort made to sell the property. More particularly, in terms of stating grounds for action against the Respondent's license, the course of conduct by the Respondent personally and through his company, Florida Landowners Service Bureau, demonstrates that he is guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in this state and has violated the duty imposed upon him by law or the terms of listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed overt acts in furtherance of such intent, design or scheme, all in violation of 475.25(1)(a) F.S. The course of conduct by Kenneth Kasha personally and trading as Florida Landowners Service Bureau shows him to be guilty of conduct or practices which show that he is dishonest and untruthful to the extent that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him, as set forth in 475.25(3) F.S.
Recommendation Upon consideration of the facts in this cause, it is recommended that the Petitioner, Florida Real Estate Commission, revoke the real estate broker's license, certificate number 0046189, held by the Respondent. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Kenneth Kasha P.O. Box 611238 North Miami, Florida 33161 Richard J.R. Parkinson, Esquire and Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY MEMORANDUM ================================================================= Orlando, Florida June 15, 1979 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Fred Langford, Staff Attorney RE: Revocation of Kenneth Kasha - PD No. 3014 004618904 DOAH Case No. 77-1299 Attached please find a copy of the Final Order, Mandate and Order from the Third DCA concerning Kenneth Kasha. The effective date of revocation is December 21, 1978. /FL:bam Attachments* Fred Langford Staff Attorney * NOTE: Attachments noted are unavailable at the division and therefore not a part of this ACCESS document.
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Jan Tomas is and was at all times pertinent hereto the holder of real estate broker registration certificate No. 0089450 from the Florida Real Estate Commission. The pleadings in this case show that on April 21, 1976, a Notice of Hearing was mailed to Jan Tomas by the Florida Real Estate Commission at two addresses; the first being Post Office Box 10887, Tampa, Florida 33609 and the second address being 364 Candler Park Drive, N.E., Atlanta, Georgia 30307. This Notice of Hearing was for hearing to be held on May 19, 1976, the date of the final hearing herein. This Notice was received by Jan Tomas as evidenced by the letter marked Exhibit 6 to Delphene C. Strickland, the then assigned Hearing Officer in this cause. On March 22, 1974, Jan Tomas applied for renewal of his certificate of registration as an active real estate broker. In his application he listed his business address and residence address as 417 A E Hanlon Street, Tampa, Florida 33604. Tomas was issued renewal certificate No. 099351 at the foregoing address which certificate expired September 30, 1975. By application dated February 7, 1975, Jan Tomas applied for a renewal of his active broker registration certificate setting forth his business and residence address as 105 South Hale, Tampa, Florida 33609. Pursuant to that application he was issued renewal certificate No. 207246 at the foregoing address which certificate expired September 30, 1975. At no time during 1974 or 1975 did Jan Tomas occupy the premises located at 417 A E Hanlon Street, Tampa, Florida either in a business capacity or in a residential capacity. Throughout 1974 and 1975, 105 South Hale, Tampa, Florida was a vacant lot. At no time during 1974 or 1975 did Jan Tomas maintain a business or residence at 105 South Hale, Tampa, Florida. Nor, during 1974 or 1975 did Jan Tomas maintain a business or residence at 103, 104 or 107 South Hale, Tampa, Florida.
Findings Of Fact Defendant, Ray Sans, is currently registered as a real estate broker in the State of Florida, holding Certificate No. 0077190. On April 2, 1973, Defendant submitted a Requests for Registration Certificate as a registered real estate salesman in the employ of Southeast Land Corporation. The Defendant's application was also signed by Darien Kendall, a registered real estate broker in the State of Florida, who also served as Vice President of Southeast Land Corporation. The application form recites that the applicant was to be "exclusively connected" with Southeast Land Corporation, which indicated its willingness to carefully supervise the applicant in his activities as a registered real estate salesman. On April 3, 1973, Defendant, Ray Sans, and Darien Kendall, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, pursuant to Rule 21V-2.24, Florida Administrative Code, which was received by the Florida Real Estate Commission on April 9, 1973. On May 21, 1973, Defendant, Ray Sans, submitted a second Request for Registration Certificate as a registered real estate salesman in the employ of Store Realty Corporation. This request was also signed by Robert Pepper, President of Store Realty Corporation, and a registered Florida real estate broker. The application form indicates that Defendant, Ray Sans, was to be "exclusively connected" as a real estate salesman with Store Realty Corporation. On May 21, 1973, Defendant, Ray Sans, and Robert Pepper, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, indicating that Defendant, Ray Sans, was to be employed as a real estate salesman with Store Realty Corporation, pursuant to the provisions of 21V-2.24, Florida Administrative Code. This declaration was received by the Florida Real Estate Commission on May 24, 1973. On July 27, 1973, a Notice of Termination of Salesman's Employment was signed by a representative of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, effective July 27, 1973, and that his services while in the employ of that company had been satisfactory. Defendant, Ray Sans, returned to the employ of Southeast Land Corporation in September of 1973, and remained in the employ of that company as a real estate salesman until February, 1975. Defendant testified that he completed a Declaration of Employment for Apprenticeship Purposes after his return to Southeast Land Corporation in September of 1973, but that he did not know whether his employer, or his supervising broker, Sam Stier, ever mailed the declaration to the Commission for filing. Thereafter, Defendant filed an application for registration as a real estate broker with the Commission on January 16, 1975, and, after passing the required examination, received his license as a registered real estate broker on March 17, 1975. The application submitted by Defendant to the Commission contained the following question in Paragraph 16(a): "Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the state of Florida for the 12 consecutive months within 5 years next prior to the date of this application?" Defendant answered this question in the affirmative, and in addition, gave the name and address of Darien Kendall, a registered real estate broker in the State of Florida, and Vice President of Southeast Land Corporation, as the broker with whom he had served his apprenticeship. There is nothing in the record to indicate that the Commission ever contacted Ms. Kendall to verify whether Defendant had, in fact, served such apprenticeship. Shortly after receiving his real estate broker's license on March 17, 1975, Defendant left the employ of Southeast Land Corporation. Both Southeast Land Corporation and Store Realty Corporation have since gone out of business.
Findings Of Fact Florida Development and Sales Corporation (FDS) at all times here involved was a registered real estate corporate broker. Lawrence F. Taylor, at all times here involved, was a registered real estate broker and an Active Firm Member for FDS and Universal Realmark, Inc. Michael W. Levine, at all times here involved, was a registered real estate salesman for Universal Realmark, Inc., corporate broker. Florida Development and Sales was a wholly owned subsidiary of Universal Realmark, Inc. The two corporations occupied the same offices, had the same corporate officers, and used the same telephone numbers. Correspondence went out from either corporation on FDS stationery, and all employees of both corporations were paid by check drawn on FDS account. FDS entered into a non-exclusive brokerage agreement on August 2, 1971 (Exhibit 5) with Lake Lucie Estates, Inc., the owner of unimproved land it desired to sell in 1 1/4 acre tracts. Pursuant to said agreement the broker advertised and sold, generally by agreement or contract for deed and generally to out-of-state buyers, these 1 1/4 acre tracts. In 1973 Universal Realmark, Inc. acquired all of the stock of FDS and accepted the obligations of FDS under supplemental agreement dated May 23, 1973 (Exhibit 6). The brokerage agreement above referred to was undisturbed. By order dated May 6, 1974 the Commissioner of Securities, State of Missouri ordered St. Lucie Estates, Inc., and FDS, their representatives, inter alia, to cease and desist the offer and/or sale in Missouri of any agreement for deed securities. Chapter 409, Laws of Missouri, contain the Missouri Uniform Securities Act. Therein security, in 409.401(1), is defined to mean any contract or bond for the sale of any interest in real estate on deferred payments or on installment plans when such real estate is not situated in this state Section 409.201 makes it unlawful for any person to sell or offer for sale securities in Missouri without being registered to do so and Section 409.301 makes it unlawful for any person to offer or sell any security in Missouri unless: (1) The security is registered, or (2) The security or transaction is exempted under Section 409.402. Pursuant to these and other provisions of the securities law the cease and desist order was issued and served by certified mail on Lake Lucie Estates, Inc. and FDS. Section 409.410 of the Missouri Statutes provides that any person who has been personally served with a cease and desist order and thereafter willfully violates same shall, upon conviction, be fined not more than $5,000 or imprisoned not more than three year, or both. The Act further provides for personal service upon an out-of-state violator of the act by serving the commissioner who sends notice of the service to the out-of-state violator. Here the Respondents acknowledged receipt of the cease and desist order. Subsequent to the receipt of the Missouri cease and desist order Levine negotiated agreement for deeds with three purchasers in Missouri of Lake Lucie Estates, Inc. property. On one of these the purchaser's check was made payable to Lake Lucie Estates, Inc. and the checks for the other two were made payable to FDS. During his interrogation by the investigator, Levine acknowledged that he was aware of the cease and desist order at the time he negotiated the three agreements for deed. He obtained his list of people to call from the office, i.e. FDS/Universal Realmark. At the hearing Levine did not remember whether or not he was aware of the cease and desist order at the time he negotiated the Missouri contracts. He did remember receiving a commission on each sale by check drawn by FDS although he was registered as a salesman under Universal Realmark, Inc. As noted above Lake Lucie Estates had a brokerage agreement with FDS and no such agreement was ever negotiated with Universal Realmark. Lake Lucie Estates would have no objection to Universal Realmark selling its property. Respondent Taylor was the Active Firm Member of FDS and Universal Realmark. He was serving in that capacity with Universal Realmark when FDS was acquired. At the same time he operated his own real estate broker's office on Miami Beach, spending part of his time supervising the activities of each office. Taylor's initial statements to the investigator that he learned of the Missouri cease and desist order in June 1974 upon his return to the office from a stay in the hospital was repudiated at the hearing when he stated he learned of the Missouri order only a few hours before he talked to the investigator in October, 1974. Taylor also testified that he never authorized Levine to sell under his brokerage even though Taylor was the Active Firm Member of Universal Realmark and Levine was registered under the corporate broker, Universal Realmark. Taylor's main concern appeared to be to insure that the salesmen for these out-of-state land sales adhered to the script that had been prepared for them and from time to time he monitored their conversations. When he realized that the alleged violations of the real estate license law were being investigated he resigned from FDS and Universal Realmark because "they were violating my trust". When the requests for renewal of the FDS corporate broker's registration was submitted in September, 1974, Taylor signed same a Vice President of FDS and the Active Broker of the corporation.
The Issue Whether respondent placed an unpermitted sign alongside U.S. 29 0.7 miles south of U.S. 90 in Escambia County in violation of Section 479.07(1), Florida Statutes?
Findings Of Fact At the time and place appointed for the hearing, neither party appeared or adduced any evidence. The hearing officer was later apprised that the parties had reached at least an oral agreement settling the dispute.
Findings Of Fact The Defendant was at all material times registered with tie Florida Real Estate Commission as a real estate salesman in the employ of Razook Real Estate, Inc. Razook Real Estates Inc. is a duly registered real estate broker. During 1973, the Defendant negotiated the sale of a business known as Carvel Ice Cream Supermarket number 1034, located in Riviera Beach, Florida, between Philip Caruso and Dorothea Caruso, as sellers, and Beverly Barratt, as purchaser. The Carusos and Ms. Barratt entered into a Purchase and Sale Agreement on May 14, 1973. (See: Defendant's Composite Exhibit 1). The agreement included assignment from the sellers to the purchaser of a lease covering the property on which the business was located. The lease assignment was incidental to the sale of the business, and was not a prime factor in the transaction. The Defendant negotiated the sale as a business broker employed by Rabern Business Associates, Inc., and not as a real estate salesman employed by Razook Real Estate, Inc. The Defendant was not registered with the Florida Real Estate Commission as a real estate salesman for Rabern Business Associates, Inc. When she signed the contract on May 14, 1973, Ms. Barratt delivered to the Defendant a $4,060 check made out to Rabern Business' Associates, Inc. which amount was to serve as a deposit. The contract provided that the sale would be subject to the approval of Carvel Corporation the franchisor of the business. On August 15, 1973, the transaction between the Carusos and Ms. Barratt was closed, except that the approval of Carvel Corporation had not yet been received. It was the clear understanding of the parties that the approval of Carvel Corporation was essential and that the closing was conditional upon that approval. The sellers were represented at the closing by Attorney Walter Colbath. Ms. Barratt was represented at the closing by Attorney Gustave Broberg. Shortly after the closing, Ms. Barratt went to New York to participate in a training program offered by Carvel Corporation for franchisees. Carvel Corporation would not approve the transaction unless the new franchisee completed this program. Upon her arrival in New York, Ms. Barratt was advised by representatives of Carvel Corporation that the Carusos owed Carvel Corporation more than $8,000, which amount was not reflected in the agreement between the Carusos and Ms. Barratt nor in the closing statement dated August 15, 1973. This is the first occasion upon which Ms. Barratt was apprised of this indebtedness on the part of the Carusos to Carvel Corporation. Carvel Corporation reluctantly permitted Ms. Barratt to participate in their training program with the hope that a resolution of the indebtedness could be made. Carvel Corporation would not approve the agreement between the Carusos and Ms. Barratt unless an arrangement was made respecting the indebtedness. When Ms. Barratt returned to Florida, negotiations respecting the $8,000 commenced, and although at one juncture the parties were close to an agreement, no final resolution was reached. The transaction was therefore not concluded. At no time did Carvel Corporation approve the sale as set out in the contract of May 14, 1973, or in the closing statement dated August 15, 1973. On October 23, 1973, Mr. Broberg, representing Ms. Barratt, wrote to Mr. Colbath, the attorney for the Carusos, stating that the transaction could not be consumated, and demanding that monies held by Attorney Colbath be returned to Ms. Barratt. He further stated in the letter: "It would be appreciated if you would forthwith inform Mr. Ralph J. DePaola of Rabern Business Associates, Inc. that the sale has terminated and request that he return the $4,000, which he is holding, to Mrs. Barratt." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). On December 19, 1973, Mr. Colbath wrote to Mr. Broberg concerning monies that had been held by him, and with respect to the monies held by Mr. DePaola stated as follows: "The balance of $4,000 that was originally deposited with Mr. DePaola has, as you know, been retained by him as his commission. I am by copy of this letter informing Mr. DePaola what has transpired since we last talked and ask that you contact him directly." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). No further demands were made by Ms. Barratt, or on her behalf, to the Defendant for the return of the $4,000. The Defendant did not have any agreement with Ms. Barratt that Ms. Barratt would be responsible to pay any commission to the Defendant. Four thousand dollars is listed on the August 15, 1973 closing statement as a sellers' expense. Mr. DePaola testified at the hearing that he considered the matter closed as of August 15, 1973; however, Mr. DePaola did know, or should have known, that approval by Carvel Corporation had not been obtained, and was necessary. Mr. DePaola has retained the $4,000, and it has not otherwise been returned to Ms. Barratt. The Defendant was not aware of the additional $8,000 obligation which the sellers owed Carvel Corporation on May 14, 1973, when the Purchase and Sale Agreement was signed, or on August 15, 1973, when the transaction was preliminarily closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Count I of the Information against Ralph J. DePaola be dismissed. That Count II of the Information against Ralph J. DePaola be dismissed. That Count III of the Information against Ralph J. DePaola be dismissed. RECOMMENDED this 24th day of February, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
