The Issue The issue presented is whether the Respondent violated Section 475.25(1)(a) and Secton 475.25(3), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact The Respondent, Nettie Byer, was employed by Continental Marketing Services from November 3, 1975, until March 31, 1976, as a broker salesman. The deposition of Maureen Palloti was received into the record subject to the objections ruled on in the Hearing Officer's Order heretofore entered in the record. The testimony of Edward Nadelman was received. Nadelman stated that he was contacted by telephone by a person who represented that she was Nettie Byer. The caller stated that she was with Continental Marketing Services, a real estate sales organization. The caller further represented that if Nadelman paid a $350 advance fee, Continental Marketing Services would list Nadelman's property advertising it widely within the United States and abroad, selling it for several times what Nadelman paid for the property. Nadelman subsequently received a copy of that advertisement for his property. Nadelman's property was not sold. The deposition of Maureen Palloti reflects that Mrs. Palloti and her husband were contacted by a caller who identified herself as Nettie Byer. The caller made representation similar to those made to Edward Nadelman. As a result, the Pallotis entered into a listing agreement with Continental Marketing Services, paid an advance listing fee, and subsequently received a proof of an advertisement of their property. Evidence was presented that Nadelman's and the Pallotis' property was not worth the price suggested by the caller as the price at which the property could be sold. However, no guarantees of sale were made by the caller. No evidence was introduced that the individual who called Edward Nadelman or that the individual who called the Pallotis was the Respondent, Nettie Byer. No evidence was introduced that the Respondent had any knowledge of the business activities of Continental Marketing Services. No evidence was introduced that Continental Marketing Services did not perform in accordance with the listing contracts with the Pallotis or with Nadelman.
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 the license of Nettie Byer as a broker salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of March, 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530,Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert D. KIlausner, Esquire 28 W. Flagler Street, Suite 804 Miami, Florida 33130 Mark A. Grimes, Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Duane T. Mumford was licensed as a real estate broker by the Florida Real Estate Commission and remained so licensed until 15 September 1980 when his license was suspended by Board of Real Estate Order of that date. The Amended Final Order (Exhibit 6) provided the suspension of Mumford's license for two years or until Mumford's criminal probation was lifted, whichever first occurred, would commence 20 days after the 15 September 1980 date of this order. Respondent was advised by his attorney, and this advice was confirmed by Closing Order of the Probable Cause Panel (Exhibit 12), that he had an additional 30-day period in which to appeal the order of suspension; and that his suspension would not be effective until that time expired. Accordingly, he was told he could continue to operate under the authority of his license until 4 November 1980. Respondent placed advertisements as a real estate broker in the Sentinel Star on 18-19 October 1980 and in the Deland Pennysaver on 30 October 1980. No evidence was presented that he held himself out as a real estate broker after 30 October 1980. In the undated, unsigned but certified Closing Order (Exhibit 12) which was admitted into evidence without objection and for the purpose of showing that Petitioner had taken final agency action on the complaint involving advertising as a real estate broker on 9 October 1980 while his license was suspended, Petitioner held that Respondent's advertising did not constitute a violation of Section 475.42(1)(a). This action was confirmed in Department of Professional Regulation's letter of December 16, 1980 (part of Exhibit 12), to be final agency action by the Board. On January 16, 1981, Mumford placed an ad in the Wall Street Journal (Florida edition) in which he advertised an apartment complex for sale in Amarillo, Texas, and identified himself as a commercial business broker. Due to an error on the part of the Journal, the ad was placed in the Florida real estate section rather than the Texas section as specified by Mumford. On October 19, 1981, the recommendation of the Massachusetts Probation Department was accepted and Mumford was discharged from his probation by the Massachusetts court (Exhibit 13). This event would trigger the lifting of his suspension of license under the terms of the Amended Final Order entered September 15, 1980 (Exhibit 6), absent any other alleged infraction by Mumford. Prior to the suspension of his license Mumford, while in the firm of Mauney and Mumford, Inc., obtained an open listing on KOA Kamp-Ground, Orange City, Florida. He prepared and had printed a brochure on this property (Exhibit 8) in which various financial statements were presented to show the investment potential of the property. When Respondent's license was suspended, the firm broke up and the listings were shared by Mauney and Mumford. Subsequent to September 15, 1980, Mumford has remained in close contact with his attorney with respect to activities he could perform, first as a real estate broker and, after November 4, 1980, as a business broker. In accordance with the advise from his attorney, Mumford placed no advertisements as a real estate broker after October 1980 and, in all of his activities pertaining to the sale of commercial property, held himself out as a business broker. According to Mumford's testimony, which was unrebutted, he devoted most of his efforts while a real estate broker, to the sale of commercial property where his training and experience in accounting and taxation was more valuable. Following the suspension of his real estate license, he held himself out as a business broker. People with whom he had dealt as a real estate broker and with whom he subsequently dealt as a business broker, did not generally recognize any difference in the functions Mumford performed; and many did not realize he was purporting to act as a business broker despite his use of the title "Business Broker" on documents he prepared. As a result of an ad placed by Mumford on the Orange City KOA Kamp- Ground, a client of Don Gallagher Realty called about the property and arrangements were made for the buyer to see the Orange City KOA Kamp-Ground. This visit led to the consummation of a contract (Exhibit 9) for the sale and purchase of the site and related equipment. This contract contained three addenda which included, inter alia, a four-page inventory of personal property an assignment of the KOA Kamp-Ground franchise; and agreement on the part of sellers not to open another campground for the period of two years within a 50- mile radius; an agreement on the part of sellers to remain on premises for up to 30 days to assist the buyer to commence operation; and provisions for payings the commissions to the listing broker, Mumford, and the selling broker, Gallagher. Mumford signed Exhibit 9 as "Business Broker." Before the closing of this property on 2 February 1981, all parties were aware that Mumford's real estate license was suspended and that he was purporting to participate in the deal as a business broker. Gallagher called the Florida Real Estate Commission to ascertain that it was proper for him to continue with the closing as the buying broker with Mumford as the selling broker. Prior to the closing, brokerage agreements (Exhibits 10 and 16) were prepared by Mumford and Gallagher, respectively, and executed by all parties. Exhibit 10 modified addendum 2 to Exhibit 9 to clarify Mumford's status as a business broker and provided the brokerage fee be paid to Mumford over a three- year period. Exhibit 16 provided for the brokerage fee to be paid to Gallagher over a three-year period at $900 per month. Exhibit 10 provided for Mumford's commission to commence 37 months after the closing. There was insufficient cash down payment in this sale to pay the sales commission at closing. Accordingly, all parties agreed to the delayed payment provisions. In consideration of his waiting three years to start receiving his commission, Mumford entered into an oral agreement with the sellers whereby they agreed to pay him an additional $2,500. The sale price for this transaction was $675,000. In 1980 the land was carried on the tax rolls of Volusia County at $141,600 and the buildings at $41,830. In 1981 these tax rolls showed $141,600 for the land and $71,242 for the buildings. To compute the value of the Kamp-Ground as an ongoing business, Respondent used the figures from the Kamp-Ground income tax return for 1979 to arrive at the cash available from cash flow to pay interest, retire debt and leave a profit for the buyers. This resulted in an estimated value for "good will" of approximately $200,000. The value of the mobile homes not attached to realty was placed at $10,000; a value was placed on the agreement for sellers to remain for 30 days to assist buyers and not to compete for two years; on the KOA franchise; on the store inventory of $5,000; and on the value of the other personal property. The total of these values as determined by Mumford was $288,000, from which he computed his fee of $28,800. An experienced business broker called by Respondent as an expert witness opined that the non-real property value of the Kamp-Ground exceeded $300,000. An accountant also called by Respondent as an expert witness opined that the methodology used by Respondent to establish the value of the ongoing portion of the Orange City KOA Kamp-Ground business met acceptable accounting principles and that he concurred in the value of "good will" and other non-real property assets of the Orange City KOA Kamp-Ground enterprise as determined by Mumford.
Findings Of Fact At all times material hereto, Respondent, Lawrence P. Weiner, was a registered Florida real estate salesman employed by Continental Marketing Services, Inc. Continental Marketing Services, Inc. solicited real property listings from property owners in the State of Florida by means of postal cards inquiring of those property owners whether they would like to sell their Florida real property. Interested owners were requested to fill out a card with their address and telephone number, and to forward that card to Continental Marketing Services, Inc. which would then contact the property openers by telephone, Respondent, as a real estate salesman in the employ of Continental Marketing Services, Inc., would then contact responding property owners from a list furnished him by his employer. Respondent would obtain information by telephone from property owners such as initial purchase price, size and location of the property. Both Respondent and his employer represented to property owners that, should they list their property with Continental Marketing Services, Inc., the property would be advertised in foreign countries where investors existed who were interested in purchasing Florida real estate. In order to list their property with Continental Marketing Services, Inc., property owners were required to pay an "advance fee" for these listings, usually $350, which amount they were told would be used to defray the cost of initial preparation of a directory listing those properties in Florida which were for sale. After obtaining initial background information, Respondent would submit the information to his employer, which, though unclear from the record, would analyze these facts and return to Respondent for transmission to the property owner a suggested sales price. This suggested sales price was usually several times the initial purchase price for the property. For example, one witness at the hearing testified that a lot purchased on April 27, 1967 for $2,640 was ultimately listed with Continental Marketing Services, Inc. at Respondent's suggestion, at a sales price of $7,600. Testimony at the hearing indicated that comparable lots in the same area are presently selling for $4,700. Another witness testified that two lots purchased in 1965 for $2,390, were discussed in 1977 with Respondent who suggested that they be listed at a suggested sales price of $16,600. Finally, still another witness testified that he listed property with Continental Marketing Services, Inc. as a result of his contacts with the Respondent at a purchase price of $5,000 per acre in 1976 for property that he had purchased for $500 an acre in 1964. Those property owners testifying at the hearing who listed their property for sale with Continental Marketing Services, Inc., indicated that they had no further contact with either Respondent or Continental Marketing Services, Inc. after having paid their $350 listing fee. None of these property owners received any offers to purchase their property as a result of its listing with Continental Marketing Services, Inc., and, as of the date of the final hearing in this cause, the property remained unsold. The Respondent testified that his only responsibilities with Continental Marketing Services, Inc. involved contacting those persons on the lists furnished to him, and obtaining their agreement to listing their property with Continental Marketing Services, Inc. Suggested sale prices for particular pieces of property were furnished to Respondent by other employees of Continental Marketing Service, Inc. Respondent further testified that placing of advertisements for properties listed with Continental Marketing Services, Inc. was accomplished by other employees of the company. Respondent testified that he "understood" that Continental Marketing Services, Inc. had sold properties and that some of these sales were to foreign investors, although he did not know the identity of the foreign investors, or the number of parcels sold by the company. Respondent denied that he had represented to property owners that the sale of their property would be accomplished in sixty to ninety days. This contention is borne out by the testimony of two of the property owners testifying in this proceeding, one of whom testified that Respondent indicated that her property could "probably be sold within sixty to ninety days", and another property owner testified that Respondent made no representation to him concerning the length of time necessary to effect a sale of his property. There is no evidence in the record to establish that Continental Marketing Services, Inc. failed to advertise property listed for sale as promised in the Listing Brokerage Agreement with those property owners testifying in this proceeding. There is no evidence in the record in this proceeding to establish that Continental Marketing Services, Inc., in fact, knew of no foreign investors interested in purchasing property in the United States. Further, there is no testimony in the record in this proceeding to establish that Continental Marketing Services, Inc. had never sold property for other property owners in either the United states or the State of Florida. Finally, although property belonging to three of the witnesses testifying in this proceeding was listed at several times its initial purchase price, there is no indication in the record that Respondent played any part in setting the suggested listing prices.
Findings Of Fact Wallace Adams was a registered real estate salesman with Continental Marketing Services from November, 1975, until May, 1976. The depositions of Robert Cline, Donald Brawdy and Jean Sue Brawdy were received into the record without objection. The depositions of the Brawdys reflect that they received a telephone call from an individual identifying himself as Wallace or Wally Adams. The deposition of Robert Cline reflects that he received a call from an individual whom Cline identified only as Mr. Adams. The deponents indicated that the caller stated he represented Continental Marketing Services, a real estate sales organization. The caller represented that Continental Marketing Services desired to list property which they owned in Florida and Arizona for sale. The caller represented that their property would be advertised nationally and internationally, and that foreign buyers were interested in purchasing such property. Cline indicated that he was called in approximately November of 1975, and the Brawdys indicated that they were first contacted in February of 1976. The caller suggested the potential sales prices of the property to be listed, and the deponents eventually entered into a listing contract with Continental Marketing Services, paying advance listing fees ranging from $350 to $1,125. None of the deponents indicated that they ever met the Respondent, Wallace E. Adams.
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 the registration of Wallace E. Adams as a registered real estate salesman. DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Wallace E. Adams c/o Dory Auerbach 456 NE 29th Street Miami, Florida 33137
The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, 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 2nd day of April, 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, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner, Diane Aquino, is a 33 year old female who currently resides at 1271 North West 23rd Avenue, Pompano Beach, Florida. By application filed on February 10, 1981, Petitioner sought licensure as a real estate salesman by Respondent, Department of Professional Regulation, Board of Real Estate. (Respondent's Exhibit l) Question 7(a) on the application asked whether any judgment or decree of a court has been entered against the applicant in which the applicant was charged with any fraudulent or dishonest dealing. Question 15(a) asked whether the applicant has ever had any registration to practice a profession revoked, annulled or suspended upon grounds of fraudulent or dishonest dealing or violations of law. Question 15(b) asked whether applicant has ever surrendered her registration to practice any regulated profession or occupation. Aquino answered each of those questions affirmatively and included a written statement describing actions taken against her by the Securities and Exchange Commission (SFC) based upon fraudulent activities which occurred in 1976. The application was denied by Respondent by letter dated April 28, 1981, on the ground she had failed to demonstrate that she was "honest, truthful, trustworthy, and of good character, and ... (has) a good reputation for fair dealing." The denial precipitated the instant hearing. Between September, 1975, and April, 1976, Petitioner was employed by Colonial Securities, Inc. located in Jersey City, New Jersey, in the capacity of a registered sales assistant. Colonial was a broker-dealer registered with the SEC pursuant to Section 15A of the Securities Exchange Act of 1934. In 1977 Colonial, Petitioner and two other Colonial employees were the subject of an administrative proceeding instituted by the SEC charging that they had "willfully violated and willfully aided and abetted violations of Sections 5(a) and 5(c) of the Securities Act in that they, directly and indirectly, made use of the means and instruments of transportation and communication in interstate commerce and of the mails to offer, sell and deliver after sale shares of the common stock of Tucker (Drilling Company, Inc.) when no registration statement was filed or in effect as to such securities pursuant to the Securities Act." (Respondent's Exhibit l). Because of the time and expense involved in contesting these charges, and upon advice of her counsel, Aquino consented to the entry of an order by the SEC that made findings that she had willfully violated and willfully aided and abetted violations of Sections 5(a) and 5(c) of the Securities Act of 1933. The consent order also imposed the following sanctions: that Aquino be barred from association with any broker, dealer or investment company, except in a secretarial capacity; and that, after a period of two years she be permitted to apply to become reassociated in non-supervisory and non-proprietary capacity. Aquino is now reapplying for registration with the SEC. In addition to the sanctions imposed by the SEC, Petitioner has been enjoined by a federal court in New York from violating Sections 5(a) and 5(c) of the Securities Act of 1933. Since the entry of the consent order, Petitioner has owned and operated a laundry and dry cleaner business in Pompano Beach, Florida, and been employed as a sales assistant at a stock brokerage firm in Fort Lauderdale, Florida. Since 1980 she has been the president and 50 percent stockholder of Financial Communications, Inc., a small private investment company located in Pompano Beach, Florida. In her present business, Petitioner deals with private investors who entrust her with sums of money for different securities and stock investments. One such investor described her as being honest and trustworthy, and stated he is completely satisfied with the business relationship that they enjoy. Another investor attested to Aquino's excellent reputation for honesty and truthfulness. A former employer indicated he is willing to sponsor her reapplication for licensing with the SEC as a registered securities representative. He is also willing to hire her if that application is approved. Other than the difficulties incurred in 1977, Petitioner has had no other problems that would reflect adversely upon her reputation and integrity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, Diane Aquino, for licensure as a real estate salesman be GRANTED. DONE and ENTERED this 29th day of September, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of September, 1981. COPIES FURNISHED: Steven L. Rishken, Esquire Suite 203, Dadeland Towers North 9700 South Dadeland Boulevard Miami, Florida 33156 Linda A. Lawson, Esquire Assistant Attorney General The Capitol LL04 Tallahassee, Florida 32301 Diane Aquino 1271 NorthEast 23rd Avenue Pompano Beach, Florida 33062
Findings Of Fact Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1989.
