Findings Of Fact The Respondent Habitat Corporation is a corporate real estate broker holding license number 0217261, with a registered business address of 3835 North Andrews Avenue, Fort Lauderdale, Florida 33309. The Respondent James S. Shenkenberger is the qualifying broker for the corporate licensee, and holds license number 0079972. Prior to January 2, 1981, Shenkenberger was qualifying broker for American Overseas Investment Corporation, then a licensed Florida corporate real estate broker operating in Fort Lauderdale, Florida. On January 2, 1981, Shenkenberger placed the real estate license of American Overseas Investment Corporation on inactive status, and obtained an active license for the Habitat Corporation. From July of 1977, Shenkenberger had an oral agreement with Florida Hendry Land, Inc., to act as a broker in selling property belonging to Florida Hendry Land, Inc. The terms of this agreement were that Shenkenberger was to be paid on a commission basis, and that he would present sales agreements for the approval of Joe Hendry, the owner of the corporation. When a sales contract was complete, then Florida Hendry would issue the Warranty Deed and order the title insurance. In early 1980, Irvin Adams, pursuant to a newspaper advertisement advertising land for $800 an acre, contacted Jim Shenkenberger and arranged to meet with him. On February 9, 1980, Adams flew to Florida from Pennsylvania and was shown Florida Hendry land by Shenkenberger. On this date, Adams decided to purchase lots four and five for a total purchase price of $64,000. Shenkenberger told Adams that if he made all the payments within one year, the purchase price would be reduced by 10 percent. As a down payment, Adams gave Shenkenberger a check for $14,000, payable to the order of American Overseas Investment Corp., and $2,000 in cash. At no time was Adams presented with a sales contract for Lots four and five. Adams returned to Pennsylvania, and contacted Shenkenberger several times during 1980 when he became worried that he had not received any requests for further payments. Shenkenberger informed Adams that the land was tied up, that Mr. Hendry had an obligation to the State of Florida, and that the land had been put up as a bond. In December of 1980, Shenkenberger contacted Adams and told him that the property was clear. On January 10, 1981, Adams flew to Florida a second time. He met with Shenkenberger, and again viewed the Hendry property. Adams decided to change the property he was purchasing to tract 18. Adams gave Shenkenberger a check payable to the order of American Overseas Investment Corp. in the amount of $12,800, and Shenkenberger gave him a receipt reflecting that Adams had paid in full for tract 18. At no time was Adams presented with a sales contract for tract 18. On this same date, Shenkenberger showed Adams three more Hendry tracts, and Adams gave Shenkenberger a down payment for Lots six, seven and ten in the amount of $11,900. Shenkenberger made out and signed the offers to purchase the three lots in the presence of Adams, but did not give them to Adams to sign. Adams never received a receipt for deposit or a sales contract on any of the three lots. Polly Hodge, who operated Florida Hendry Land, Inc. on a day-to-day basis, was first informed in March of 1980 that Irvin Adams might be interested in purchasing certain of their properties. The first money received by Florida Hendry Land, Inc., relating to sale of property to Irvin Adams, was by a $300 check from Shenkenberger dated January 15, 1981. Shenkenberger represented that the funds were a binder for the purchase by Adams of tracts six, seven and ten. Florida Hendry Land, Inc., never received a written offer to purchase the properties. After Florida Hendry received the binder, Polly Hodge asked Shenkenberger on several occasions about the status of the sale to Adams. Shenkenberger repeatedly advised her only that Adams would be coming to Florida in the near future. After Adams returned to Pennsylvania from his trip to Florida in January of 1981, he contacted Shenkenberger and advised him that he wished to purchase one lot in full rather than Lots six, seven, and ten. On January 26, 1981, he sent Shenkenberger a check in the amount of $14,650 for payment in full of tract ten of the Hendry property. At no time did Adams receive a deposit receipt for this payment, nor did he receive a sales contract. When Adams became concerned because he had not received deeds to the two properties, he contacted Shenkenberger, and was told that the Hendry Land Office was slow in preparing the deeds. On February 26, 1981, Adams visited the offices of Florida Hendry Land, Inc., and spoke briefly with Polly Hodge. Adams informed her that he wished to purchase tract ten only, and was not pursuing the purchase of tracts six and seven. Later, Adams met with Shenkenberger, and again inquired about the deeds. Shenkenberger assured him that he would have the deeds shortly. On February 27, 1981, Shenkenberger wrote a check to Florida Hendry Land in the amount of $23,895 which, together with the binder of $300, was the full purchase price of tract ten less Shenkenberger's 10 percent commission, and the deed was sent for recordation. Polly Hodge also gave Shenkenberger the Warranty Deed to tract 18 after Shenkenberger represented to her that he would be closing the property on the weekend, and would then deliver the purchase money to her. After the Warranty Deed was given to Shenkenberger, Polly Hodge inquired several times as to the progress of the transaction, but Shenkenberger repeatedly told her that Adams had not arrived to close. After returning to Pennsylvania, Adams was contacted by Shenkenberger on or about March 12, 1981. Shenkenberger told Adams that he had talked to J.B. Hendry and that Hendry did not feel that he had gotten enough money from Adams for tract 18. Shenkenberger told Adams that he would give Adams his money back for tract 18 or that Adams would have to pay him an additional $3,600. In response, Adams sent Shenkenberger a check payable to the order of American Overseas Investment Corporation in the amount of $3,600. Adams received the recorded deed for tract 10 on March 14, 1981, and received the recorded deed for tract 18 on April 11, 1981. In total, Adams paid American Overseas Investment Corporation $32,400 for tract 18 and $26,500 for tract 10. Florida Hendry Land, Inc., received no monies from either Irvin Adams or James Shenkenberger for the purchase by Adams of tract 18. At the time tract 18, consisting of 40 acres, was conveyed to Adams, the purchase price was $72,000 less 10 per cent because it was a cash purchase. Florida Hendry Land, Inc., was entitled to $64,800 less 10 per cent for Shenkenberger's real estate commission, for a total amount due to Florida Hendry Land of $58,320. Shenkenberger was aware of the purchase price for tract 18 from his long business relationship with Florida Hendry Land, Inc., and from plat maps given to him by Hodge that showed lot prices. In 1980 and 1981, Florida Hendry Land processed sales on a "walk-in" basis, processing and completing a conveyance while the purchasers waited in the office. Florida Hendry had no problems with any governmental agencies, nor was there any other impediment, which prohibited them from conveying their properties. The checks on the account of Irvin Adams were made payable to the order of American Overseas Investment Corporation at the specific instruction of Shenkenberger. On February 11, 1980, Shenkenberger opened a bank account for American Overseas Investment Corporation in what was then the First Bank of Oakland Park, Oakland Park, Florida. This account was not an escrow account or trust account. On January 12, 1981, after American Overseas Investment Corporation had been placed on inactive status, Shenkenberger deposited two checks in the amounts of $12,800 and $11,900 in this account. On February 2, 1981, Shenkenberger deposited the check for $14,650 drawn by Adams into this account. On March 12, 1981, Shenkenberger deposited the check for $3,600 given by Adams into this account. Although Shenkenberger received payment in full for tract 10 shortly after January 26, 1981, he did not deliver the payment to Florida Hendry Land until February 27, 1981. The payments made by Adams to American Overseas Investment Corporation for the purchase of tract 18 were converted to Shenkenberger's own use. In August, 1981, when Florida Hendry Land, Inc., became aware that Shenkenberger had recorded the deed for tract 18, and that the property had in fact been conveyed to Irvin Adams, they attempted to get payment for this tract from Shenkenberger, but were unsuccessful. Thereafter, Florida Hendry filed suit against Shenkenberger and Irvin Adams. Irvin Adams employed the services of an attorney to defend him in the action which was still pending on the date of the final hearing in this case. During the course of the investigation of this matter by the Department of Professional Regulation, a Subpoena Duces Tecum was served on Shenkenberger, as President of American Overseas Investment Corporation, on January 25, 1982. This subpoena requested Shenkenberger to produce all listings, contracts to purchase, binder deposits, deposits of checks and/or monies into bank accounts, receipts, closing statements, and correspondence involving all real estate transactions between Florida Hendry Land, Inc., and Irvin Adams. The Respondent failed to honor the Department's subpoena, and never delivered the requested documents for examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, James S. Shenkenberger, and the Habitat Corporation, be revoked. THIS RECOMMENDED ORDER ENTERED this 2nd day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Owen L. Luckey, Jr., Esquire Post Office Box 865 La Belle, Florida 33935 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973." As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation" was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did." Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.
Recommendation Based upon the findings of fact and conclusions of law recite above, it is recommended that: the registration of respondent Charles Shane be suspended for a period of three (3) months; and the charges relating to respondent Richard King be dismissed. Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION THOMAS M. MURRAY, Petitioner, vs. PROGRESS DOCKET NO. 2709 DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING, Respondents. /
Findings Of Fact Based upon a stipulation of the parties, the following findings of fact are made: An application for registration of First National Real Estate Company was made for registration as a corporate broker. Frederick T. Hyman is listed on said application as president and non-active officer. Berno Marie Anderson is listed as secretary/treasurer and as active broker. First National Real Estate Company is qualified for registration except for the ground stated in the Commission's order of November 30, 1978. The facts show that Berno Marie Anderson had been an active broker with Placid Estates Corporation, Creative Realty Corporation, Security Realty Corporation, Avon Park Realty Corporation, Allstate Realty Corporation, and Milco Associates of Colorado, Inc. In Addition, Anderson was listed in a non- active status with Terra Investment Corporation, Terra International Corporation, Store Realty Corporation, The Miller Comp., Inc., and Milco Associates, Inc. Frederick T. Hyman was registered in a non-active status with Creative Realty Corp., Security Realty Corp., Avon Park Realty Corp., Allstate Realty Corp., The Miller Comp., Inc., Milco Associates, Inc., and Milco Associates of Colorado, Inc. Both Anderson and Hyman held and hold individual registrations as real estate brokers. Substantial and competent evidence was introduced at the hearing that Berno Marie Anderson had terminated her association with Terra Investment Corp., Terra International Corp., Security Realty Corp., Store Realty Corp., Milco Associates, Inc., and Milco Associates of Colorado, Inc., either through withdrawal from participation with the corporate broker, dissolution of the corporation, or non-renewal of the corporate registration. Hyman had terminated his relationship with Security Realty Corp., Milco Associates, Inc., and Milco Associates of Colorado, Inc., in like manner. Berno Marie Anderson is still affiliate with Placid Estates Corp., Creative Realty Corp., Avon Park Realty Corp., and Allstate Realty Corp. as an active broker. Frederick T. Hyman is still associated in a non-active status with Creative Realty Corp., Avon Park Realty Corp., Allstate Realty Corp., and The Miller Comp., Inc. Berno Marie Anderson stated that the application for First National Real Estate Company was made on the advice of her tax consultant because of tax advantages which she could not specifically define.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission deny the application of First National Real Estate Company for registration as a corporate broker. DONE and ORDERED this 11th day of May, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1979. COPIES FURNISHED: Salvatore A. Carpino, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mark Silverstein, Esquire 420 Lincoln Road, Suite 438 Miami Beach, Florida 33139
Findings Of Fact In 1974 and up through the present time, Respondent has been a licensed real estate broker. During 1974, she operated under the name "World Wide Real Estate Center." Realty, Inc., is a corporate real estate broker licensed by the State of Florida, and Respondent is presently employed by Realty, Inc. On or about May 1, 1974, Respondent, while registered and operating as a real estate broker in the name of World Wide Real Estate Center presented a seminar in St. Petersburg, at which time she lectured and discussed real estate matters, specifically the purchase of real property located in Costa Rica. At that seminar, Respondent introduced Otho "Skip" Thomas as her associate and, together with him, made the presentation concerning Costa Rica and the availability of real property for purchase in Costa Rica. William E. Hoyer, Janice Hoyer, and Norma L. Johnson attended the seminar, since they had travel arrangements made for a vacation in Costa Rica in June. The Hoyers and the Johnsons knew Thomas as a former travel agent who had arranged several vacation trips for a travel group of which the Hoyers and the Johnsons were members. They knew that Thomas had sold his travel agency prior to the time they attended the seminar conducted by Respondent and Thomas. Since Thomas was describing real property and the prices of available property in Costa Rica and answering questions from the audience at the seminar, the Hoyers and the Johnsons assumed he had become a licensed real estate salesman after giving up the travel agency business. At all times, Respondent knew that Thomas was not a licensed real estate broker or a licensed real estate salesman. Since the Hoyers and the Johnsons were interested in purchasing real property in Costa Rica, between the time of the seminar and their departure for Costa Rica, they went to the office of World Wide Real Estate Center. Thomas met with them and discussed in more detail both property descriptions and sale prices of property available in Costa Rica. He gave them a business card from World Wide Real Estate Center containing both Respondent's name and Thomas's name. He arranged to meet them in Costa Rica. Respondent was not present at this meeting at World Wide Real Estate Center. After the Hoyers and the Johnsons arrived in Costa Rica for their vacation, they met with Respondent and Thomas in a hotel room to further discuss available real estate. Thomas ran the meeting and went through a file box he had, reciting specific pieces of property available and their purchase prices. Thomas then returned to St. Petersburg, Florida, and Respondent, together with a Costa Rican, Carlos Salizar, began showing property to the Hoyers and to the Johnsons. As a result, the Hoyers selected a piece of property to purchase, but the Johnsons found two pieces of property they were interested in purchasing, although they could only purchase one of those two properties. Respondent took the Hoyers and the Johnsons to an attorney's office in Costa Rica. Both the Hoyers and the Johnsons signed documents, probably powers of attorney whereby the lawyer would negotiate and purchase the property the Hoyers wanted and also whichever parcel the Johnsons decided they wanted. Since the Hoyers had made their decision, they gave to the lawyer a check for $4,000 to be used by him as a down payment. After they left the lawyer's office, Respondent told them to stop payment on that check and to instead wait until they had returned to St. Petersburg and then give a check for $4,000 made payable to World Wide Real Estate Center to Thomas. She also told the Johnsons to give Thomas a check for $4,000 made payable to World Wide Real Estate Center after they had returned to St. Petersburg and decided which parcel they wished to purchase. Respondent told the Hoyers and the Johnsons to deal with Thomas because he was handling the business affairs in St. Petersburg for her while she was in Costa Rica. She did not tell them to make the check payable only to the escrow account of World Wide Real Estate Center, nor did she tell them that Thomas was an authorized signature on the general account of World Wide Real Estate Center, but not on the escrow account of World Wide Real Estate Center. The Hoyers returned to St. Petersburg and stopped payment on the check for $4,000 which they had left with the attorney selected by Respondent. On July 22, 1974, the Hoyers gave Thomas a cashier's check in the amount of $4,000 payable to World Wide Real Estate. Thomas deposited that check into the general operating account of World Wide Real Estate Center. The Hoyers delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Hoyers while they were still in Costa Rica. After the Johnsons returned to St. Petersburg, Thomas began contacting them to obtain their decision as to which piece of property they wished to purchase. When they decided, Thomas met with Norma Johnson on July 24, 1974. Mrs. Johnson gave him two checks in the total amount of $4,000 payable to World Wide Realty and obtained from Thomas a receipt for the funds. Thomas deposited the checks into the general operating account of World Wide Real Estate Center. The Johnsons delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Johnsons while they were still in Costa Rica. Since the Johnsons and the Hoyers heard nothing regarding the status of the purchase of the property on their behalf, they began contacting Thomas in St. Petersburg and Respondent in Costa Rica. They were advised that the property was being surveyed or that real estate transactions in Costa Rica were normally slow. In September, Respondent returned from Costa Rica. She discovered that Thomas had left town after withdrawing the funds in the general operating account of World Wide Real Estate Center. The funds withdrawn by Thomas included the Johnsons' $4,000 and the Hoyers' $4,000. Respondent did not notify either the Hoyers or the Johnsons that their funds had been stolen by Thomas until December, 1974, when she met with them at the Johnsons' home. She then advised them that the police were unable to locate Thomas and that, if necessary, she would use her own funds to purchase the property for them. Both the Johnsons and the Hoyers told her they wanted the property or their money back. Hearing nothing further from Respondent, the Hoyers and the Johnsons retained an attorney, who wrote to Respondent on March 20, 1975, demanding immediate return of his clients' moneys. Hearing nothing further from Respondent, in May, 1975, the Johnsons and the Hoyers each filed a civil action against Respondent demanding return of their money. Both lawsuits were consolidated for trial. On December 18, 1975, a final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Johnsons in the amount of $4,000 plus interest. On December 23, 1975, final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Hoyers in the amount of $4,000 plus interest. Respondent failed to pay either final judgment. She was deposed in aid of execution in order to locate assets to collect on the final judgments. On February 1, 1978, Respondent filed for bankruptcy in order to discharge the judgments of the Hoyers and the Johnsons. Respondent admitted that was the only reason she went through bankruptcy. The Discharge of Bankrupt was entered on May 4, 1978. Respondent has never returned to the Hoyers or the Johnsons their moneys, despite the demand therefor made on her by them at the December, 1974, meeting at the Johnsons' home; despite the demand made on her by their attorney on March 20, 1975; despite the demand made on her by the filing of the civil actions in May, 1975; despite the demand made on her by the entry of the final judgments in December, 1975; and despite the demand made on her by the taking of her deposition in aid of execution. In spite of her knowledge that Thomas was not a licensed real estate salesman or broker, Respondent represented Thomas to be her agent and a licensed real estate salesperson. By the time of the formal hearing in this cause, Respondent's husband, Karl Landes, had become a licensed real estate broker. He and Respondent are employed by corporate broker Landes Realty, Inc. The sole stockholders of Realty, Inc., are Respondent and her husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent Mary E. Landes guilty of the allegations contained within the Amended Administrative Complaint, revoking her license as a real estate broker, and revoking the license of Landes Realty, Inc., during such period of revocation. RECOMMENDED this 21st day of October, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982. COPIES FURNISHED: Mark P. Kelly, Esquire Freeman & Lopez, P.A. Suite 410, Metropolitan Bank Bldg. 4600 West Cypress Avenue Tampa, Florida 33607 Barry J. McCaughey, Esquire McCaughey, Knaust & Evans, P.A. 3151 Third Avenue, North Suite 400W St. Petersburg, Florida 33713 William M. Furlow, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
Findings Of Fact Dan Lee Isaacs is a real estate broker/salesman with the Petitioner, Key Realty, Inc. He seeks in this proceeding to have approved his dual licensure as a broker for Key Realty Management, Inc., as well as to retain his broker/salesman licensure with the Petitioner, Key Realty Inc. In his capacity as a broker/salesman for Key Realty Inc., he works under the supervision of Mr. Les Epperson, who is the licensed broker for that entity. Mr. Isaacs owns no stock in the corporation, Key Realty Inc. He does own stock and would be sole manager of the separate corporation known as Key Realty Management, Inc. Key Realty Management, Inc., is not affiliated in a subsidiary or other relationship with Key Realty, Inc., although there is some commonalty of ownership in that Les Epperson is a minority shareholder. The President and majority stockholder of Key Realty, Inc., Les Epperson, would have no part in the management of the operations of Key Realty Management, Inc. Mr. Isaacs desires, for personal and financial reasons, to remain active in the real estate sales field as a broker/salesman under the supervision of broker Epperson. He would, as sole manager and broker with Key Realty Management, Inc., engage in no sales activities, but rather solely in the management and supervision of various rental properties for clients of that firm. The two corporations maintain and would maintain separate accounting books and records; and, as pertinent, separate escrow and trust funds and accounts. It is to the advantage of both firms, both financially and in terms of legal liability, to maintain these escrow funds and accounts separately because of the financial and operational differences characteristic of a real estate management firm, as compared to a purely real estate sales operation as conducted by Key Realty, Inc. The Petitioner has complied with all requirements for qualification as a real estate broker pursuant to Chapter 475, Florida Statutes, and the rules promulgated thereunder. In October, 1980, the Petitioner applied for the above described dual licensure. The Respondent denied the application on the basis that an individual cannot be a broker and a broker/ salesman simultaneously. The principals of both corporations, Mr. Epperson and Mr. Isaacs, have submitted the affidavits and agreements pursuant to Rule 2IV-6.06, Florida Administrative Code, attesting to the absence of any conflict of interest stemming from Mr. Isaacs' licensure as a broker of the separate corporation and that both of them agree and consent to the dual registration. There is no dispute between the parties that in essence a "salesman" and a "broker/salesman" perform some of the same real estate transaction functions under the supervision of a licensed broker, for instance, the depositing with the broker of any escrow or other funds involved in a given real estate transaction for appropriate disposition and disbursement by the broker and acting in all other pertinent operative capacities under the supervision of a broker, rather than independently. The parties also did not dispute that the real basis for the "broker/salesman" designation in the licensing scheme in Florida is to allow a licensee to demonstrate to the public that a broker/salesman is clothed with additional internship, educational and experience credentials and is thus possessed of a greater degree of expertise in real estate transactions and operations than one licensed as a salesman. The Respondent however, in its argument during and subsequent to the hearing, apparently takes the position that a "broker/salesman" and a salesman perform identical functions; and, therefore, are legally to be considered as the same type of license and licensee, for purposes of establishing its legal position that since a salesman's license may not be issued to a person registered as an active broker unless the active broker's license is surrendered that neither may a person be dually licensed as both a "broker/salesman" and a broker.
Recommendation In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the pleadings and arguments of counsel, it is; therefore, RECOMMENDED that a Final Order be entered granting Dan Lee Isaacs a license as an active real estate broker for, and on behalf of, Key Realty Management, Inc., and allowing his retention of licensure as a broker/salesman with Key Realty, Inc. RECOMMENDED this 15th day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 15th day of September, 1981. COPIES FURNISHED: W. Kirk Brown, Esquire Post Office Box 4075 Tallahassee, Florida 32303 Randy Schwartz, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301
The Issue The issues presented in this case are those fashioned by an administrative complaint in which the Petitioner accuses the Respondent of solicitation of Glen Goodwin to become a tenant at property located in Daytona Beach, Florida, owned by Ernest and Rose Corey. Further, it is alleged that $530 was collected for a month's rent and security deposit without the knowledge and consent of the Coreys or Robert E. Early, Respondent's broker. Respondent is said to have failed, refused or neglected to pay the $530 to the Coreys and failed to immediately deposit the funds with the Respondent's employing broker, Robert E. Early. For these acts, Respondent is alleged to have violated Sections 475.25(1)(b) and (d), Florida Statutes, and Petitioner seeks to discipline Respondent's real estate salesman's license.
Findings Of Fact Respondent, K. E. Prewitt, was at all times relevant to this inquiry licensed as a real estate salesman in the state of Florida, pursuant to license number 0441916. At times relevant to the inquiry, Respondent's license was placed with Robert Eugene Early, doing business as Early Real Estate, 500 Main Street, Suite A, Daytona Beach, Florida. Mr. Early is also known as Robert E. Early. The business has been operated since April 1986. John C. Boswell, who was working as a real estate salesman for Robert E. Early in the spring of 1986, has knowledge of certain property owned by Ernest Corey. Boswell had sold Corey the property while Boswell was employed as a real estate salesman and had his license placed with H. M. Gordon Realty. This sale had been made around the year 1985. The property in question was commercial property with two apartments located in the building. Subsequently, Corey asked Robert E. Early by his real estate brokerage firm to list the subject property for sale. The arrangement with the Early real estate agency was not for purposes of renting the Corey property, notwithstanding Corey's desire to receive rental income prior to a sale. Corey discovered that the property had been rented and called Boswell to ascertain the whereabouts of the rental income. Corey had asked $475 a month for renting of one of his apartment units, and Respondent had arranged for rental in the amount of $460 or $465 a month. Boswell never received any rent money from Prewitt regarding the Corey rental property, nor was the money turned over to Robert E. Early. Respondent told Boswell and Early that he would make up the difference related to the rental income out of Respondent's rental "fee" that he was going to charge Corey. During the course of those events, Boswell asked the Respondent twelve to fifteen times about when the Respondent intended to make or if he had made rental payments to the owner of the property. Respondent always suggested that he was going to make those payments. Finally, Boswell went to the location of the rental property and spoke to a Mr. Goodwin, who stated that he was the renter of the apartment unit. Goodwin told Boswell that he had paid the rent to the Respondent. Goodwin was uncertain of the amount that he had paid and did not have a receipt for payment. Respondent led Early and Boswell to believe that Respondent was operating under the auspices of an entity referred to as Prewitt & Associates and was a rental agent in the Corey transaction. Boswell did not have an understanding that Prewitt & Associates was a real estate brokerage firm. Petitioner's composite number 1 admitted into evidence pertaining to the real estate licensure of the Respondent in Florida does not reveal that he holds a real estate broker's license or affiliation with any real estate brokerage firm known as Prewitt & Associates. Respondent was employed by Early to work as an independent contractor in the capacity of real estate salesman. This employment started in April or May of 1986. The Corey property was listed for sale by the Early agency approximately May 23, 1986. Respondent, in discussing Prewitt & Associates, told Early that Prewitt & Associates was a corporation and that Respondent's attorney had told Respondent that he could "run" rental property under this corporate name. In trying to confirm this with the Division of Real Estate in Orlando, Florida, an attorney for the Division told Early that Prewitt could not offer property under that corporate name. This inquiry by Early was made at a time which, unbeknown to Early, Respondent had already rented the Corey apartment unit. In effect, Respondent had run an advertisement under the Early Real Estate name with Respondent's name shown as well and the alternate phone number at Early Real Estate listed. This means a second phone number not typically utilized by Early Real Estate. Early never saw a contract or agreement between Respondent and Corey. According to Early, after the rental arrangement had been made, Respondent called Corey and told him that he had rented the property. In turn, Corey called Early and Early indicated to Corey that he, Early, was not in the rental business and the Respondent was handling the rental. When Early would confront Respondent about the rental receipts on the Corey property and ask about that money, Respondent would say that it was in the mail or in Federal Express, but never would verify this by any documentation. Early understood that Respondent eventually flew to California where Corey resided, for purposes of rendering the rental income on the Corey property. Early further understood that Respondent wrote Corey a check on a company known as Irrigations Unlimited and Early told Corey, in the face of this arrangement, that the check from Respondent on Irrigations Unlimited was not good. Early then called the bank on which the check was drawn and was told that the account was closed on June 5, 1986. This conversation between Early and Corey took place on Friday, August 2, 1986, and on Monday next Corey flew to Florida to talk with Corey about the matter of the rental income. When Corey presented Early with the check which Respondent was involved with under Irrigations Unlimited, drawn on Harbor Federal Bank at the Trails in Ormond Beach, Florida, to pay up rental income, Early apologized for Respondent's conduct and gave Corey a check in the amount of $530 which may be found as Petitioner's exhibit number 3 admitted into evidence. This constitutes a month's rent and security deposit for the property in question. Corey then signed an affidavit which absolved Early and Boswell of any liability concerning this interim time. A copy of this release of liability may be found as Petitioner's exhibit number 2. Respondent has never reimbursed Early for the $530 paid to Corey related to the rental income from the Coreys' property.
The Issue Respondents' alleged violations of Sections 475.25(1)(a) and 475.25(3), Florida Statutes. Respondent Mann appeared at the hearing without counsel. Accordingly, he was advised of his rights at the hearing, including the right to testify as a witness if he so desired.
Findings Of Fact Respondent First Allstate Realty Corporation, Miami, Florida (hereinafter First Allstate) is now and was at all times alleged in the Administrative Complaint a registered real estate broker. Respondent William M. Dorn is now a registered real estate broker and was from September 2, 1975 to December 17, 1975 a registered real estate broker, president and active firm member of First Allstate. Respondent Lawrence Mann is now a registered real estate broker and was from December 17, 1975 until January 19, 1977 registered as the president and active firm member of First Allstate. (Petitioner's Exhibits 1-3) First Allstate was incorporated in Florida on September 3, 1975 with Respondent Dorn as president and Bonnie Weiss as secretary. The latter individual financed the business. The firm's operation consisted of securing listings on real estate located in Florida from out-of-state owners by telephone and correspondence. Larry Grabarnick, who acted as the office manager, hired some four to eight real estate salesmen who each manned a booth in the office during the evening hours to solicit prospective listings by telephone calls. A solicitation "pitch" placed on the wall was used by the salesmen to induce the individual called to list his property with First Allstate. In the course of the telephone call, the salesmen would advise the land owner that there was a $250.00 to $360.00 listing fee charged in advance which was fully refunded when the property was sold and that it would be deducted from the standard real estate commission on the sale. If the prospective client expressed interest in listing property with the firm, a brochure and sample listing agreement were mailed. The brochure depicted First Allstate as a large sales organization that would investigate the status of development and zoning in the area of listed property to recommend a correct selling price, advertise listings in real estate publications and national newspapers, and utilize the services of National Multiple Listing Service in Ft. Lauderdale to achieve wide exposure of the property. A "guarantee of performance" certificate signed by the president of the firm which was provided to persons listing property, promised that First Allstate would advertise the property as it deemed advisable in local newspapers or "other mediums of merit," direct a "concentrated effort to sell same and to use the advance fee to "help defray the cost of preparation for merchandising" the property for sale. Item 5 of the `guarantee" stated as follows: "I understand that this agreement does not guarantee the sale of my property, but that it does guarantee that you will make an earnest and continued effort to sell same until this agreement is terminated." The listing agreement provided that First Allstate would perform the services contained in the "guarantee" and that it would make an "earnest effort" to sell the property. (Testimony of Dorn, Petitioner's Exhibits 7-8 Respondent's Exhibit 1) Although Dorn was ostensibly the supervising broker for the corporation, in fact he was virtually nothing more than a mere figurehead who had "loaned" his license to Weiss in order to establish apparent legitimacy of the business. He did not hire sales personnel, issue their instructions or supervise them. The extent of his activity was to "drop by" the office in the evenings and listen to some of the telephone conversations at random. He had nothing to do with the preparation of the sales literature or the placement of the listings with the National Multiple Listing Service. He was unaware of how the list of property owners was obtained, how the listing price of the property was determined, or what the salesmen were paid. He set no policies and issued no instructions for the operation of the business. All of the corporate records were kept by Weiss and Grabarnick and he did not have access to them. There was not, to his knowledge, any method used to attempt to sell the property other than listing with National Multiple Listing Service, nor were any newspaper advertisements ever published by the firm. Further, he was unaware of any sales that were ever made by First Allstate during the period that he was with the company. His primary function was to sign the listing contracts as broker and the "guarantee of performance document sent to the land owners. For these services, he received between $250.00 and $350.00 a week and was paid a total of $3,475.00 during the period of his employment with the firm. He left First Allstate in December of 1975 be cause he was informed by Weiss that she was going to sell the business because it was not making enough money. At the time he left, he secured a release document from First Allstate bearing the purported signature of the successor broker, Respondent Mann, to identify him against any claims arising from the operations of First Allstate. However, Mann denied signing the release. (Testimony of Dorn, Mann, Petitioner's Exhibit 9) In 1975, Respondent Mann became a salesman for Property Resales Service, Inc., an advance fee firm in Miami that operated similarly to First Allstate. About mid-December, that firm was taken over by Republic National Realty, a firm that conducted similar operations, During this period, Mann made sales over the telephone. First Allstate, which had been purchased by one Joel Steiner about this time, took over Republic National Realty and needed a broker for the First Allstate operation. Accordingly, Mann was made president of First Allstate and two secretaries were listed as officers of the firm. Some fifteen or twenty salesmen who had previously been working for Property Resales Service Inc., and Republic National Realty moved to First Allstate which took over the offices of the other firm. Business was conducted in a manner similar to that in previous months, except that with the increased number of salesmen, some of them served simply as "fronters" who made the initial calls to land owners. In such cases, if the owner was interested in receiving literature, a salesman known as a "driver" made the follow-up phone calls. "Fronters" received $25.00 from the $375.00 listing fee then charged, and a "driver" received one-third of the listing fee. The salesmen operated out of booths in the office generally for a period of four hours in the evening six days a week. The same brochure that First Allstate had used in prior operations was utilized again with a sticker showing Mann's name placed over that of the former broker. Although Mann did not hire sales personnel or have anything to do with setting policies, he did exercise some degree of supervision over the salesmen. Like Dorn, he signed the lifting contracts and the "guarantee of performance" document. He, too, was unaware of any advertising placed by the firm other than in the National Multiple Listing Service but he knew that no sales were made by First Allstate during the time he was with the firm. He further knew that the corporation made no effort to sell thee property other than to use multiple listing. For his services, he received $100.00 a week, but also manned the telephones himself on occasion and secured listings. In such instances, he would inform prospective clients that First Allstate was a big real estate firm and that it was successful in selling property. In this regard, Mann testified at the hearing that "You know, all salesmen lie a little bit." On one occasion in April, 1976, Mann called a Massachusetts resident, informed him that he had a customer for the individual's Florida property, and that he could execute the sale in one or two weeks upon receipt of the advance listing fee. Mann further stated that the fee would be refunded if the transaction did not go through because it was a guaranteed sale. Relying on these representations, the individual sent the fee and about a month later talked to Mann again who said that the deal was being processed and would soon be closed. He heard nothing further and subsequent attempts to call Mann or the firm resulted in information that the telephones had been disconnected. In mid-December, 1975, a salesman for First Allstate telephoned a resident in Rhode Island who owned property in Florida and informed him that he had buyers available and that he thought he could get $10,5,00.00 for a lot that the individual had purchased two years previously for $3,900.00. The salesman indicated that the company had made sales of comparable property and that his lot would be widely advertised and could be sold within a few months. He was further informed that the advance fee of $375.00 was for advertising expenses. He also stated that there were foreign buyers, including South Americans and Japanese, who were looking for property for tax write-offs and investments. After paying the advance fee of $375.00 in reliance on such promises, the owner heard nothing further from the firm. In late May, 1976, after attempting to call First Allstate, he was unable to contact them and finally wrote to the State Attorney General's Office for information. He has beard nothing with respect to the matter since that time from the firm. Another employee of the firm, a "fronter," recalled a salesman telling a prospect that he had a group ready to buy their property and heard other salesmen imply to prospects that the advance fee would be returned if no sale was made of the property. The representations made in the literature of Property Resales, Inc. were used almost yerbatim in the brochures of First Allstate and when the former firm went defunct, their listings were transferred to First Allstate. (Testimony of Mann, Sherman, Reed, Glover, Petitioner's Exhibits 4-6 (Depositions of Kershaw, Andrews, Coppeta) ,Petitioner's Exhibits 10-12, supplemented by Petitioner's Exhibits 13-14)
Recommendation That the certificates of registration of First Allstate Realty Corporation, William M. Dorn, and Lawrence Mann be revoked pursuant to subsection 475.25(3), Florida Statutes. Done and Entered this 24th day of August, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Louis B. Guttmann, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Burnett Roth, Esquire 420 Lincoln Road Miami Beach, Florida 32789 Lawrence Mann 7928 West Drive Miami, Florida 33141
