Findings Of Fact Respondent Gladys A. Gibbons is licensed as a real estate broker by the Florida Real Estate Commission under license number 0031192 and has been so licensed at all times material to this case. During such time she was employed as the broker for Gregoire-Gibbons, Inc. Respondent Dorothy M. Comolli is licensed as a real estate salesman under license number 00336387 issued by the Florida Real Estate Commission and has been so licensed at all times material to this case. During the period in question here she was employed by Gregoire- Gibbons, Inc. and was supervised by Respondent Gladys A. Gibbons. On March 3, 1981 Ms. Dorothy Hawks listed her residential property located at 2349 Third Avenue North, St. Petersburg, Florida, for sale with Mr. Gerald O'Conner, a real estate salesman employed by Humpe Roney, Inc., in St. Petersburg, Florida. On July 1, 1981 Respondent Dorothy Comolli called Mr. O'Conner to tell him that she had a contract on Ms. Hawks' property. The offer which Ms. Comolli presented on behalf of Ms. Hortense Willoughby was an option to purchase with a lease. When the offer was presented to Ms. Hawks she demurred about the option and counteroffered with a lease and a contract for sale which provided for closing within one year. On a document entitled Real Estate Purchase and Sale Agreement dated July 1, 1981 the parties negotiated the terms of the property sale. Their handwritten amendments to the form contract were later incorporated into a real estate purchase and sale agreement dated July 14, 1981 which was executed by Ms. Willoughby but never signed by Ms. Hawks. With respect to the rental portion of the transaction the first contract was a receipt for deposit and agreement to lease dated July 19, 1981 presented through Ms. Comolli with a promissory note in the amount of $500 attached as a security deposit for the last month's rent on Ms. Hawks' house. The text of the receipt recited that the lease was for a period of one year with monthly payments of $500 a month to begin on August 15, 1981. It further provided for $200 "security" plus $500 for the last month's rent in a three-month promissory note. Both the note and the receipt for deposit and agreement to lease were presented by Ms. Comolli to Carol Denker at Humpe Roney, Inc. Ms. Denker had taken over Ms. Hawks' account due to the vacation of Mr. O'Connor. In addition to these documents Ms. Comolli gave Ms. Denker $200 as an earnest money deposit on the sale of the house. Ms. Denker in turn gave Ms. Comolli a receipt for the $200 but later returned the $200 to Ms. Comolli as it is customary for the agent of the purchaser to hold the deposit. The form of the promissory note and the receipt for deposit and agreement to lease were not acceptable to Ms. Denker. She had been instructed that promissory notes witnessed by a realtor were a bad business practice and were not acceptable to Humpe Roney, Inc. Ms. Denker therefore gave Ms. Comolli a promissory note form acceptable to Humpe Roney for Ms. Willoughby to execute. Ms. Denker then attempted to contact Ms. Hawks to let her know about the promissory note but was not able to reach her. On July 21, 1981 Humpe Roney prepared on its forms, a contract for sale of real estate and a receipt for deposit and contract for lease. The record is not clear why Humpe Roney wanted the contracts rewritten. After they had been redrawn Ms. Comolli picked them up, had Ms. Willoughby sign them, and returned them to Humpe Roney for Ms. Hawks' signature. These two documents which were executed by Ms. Willoughby and Ms. Hawks finally constituted the agreement between the two parties. Neither document recites that the last month's rent would be paid by Ms. Willoughby in the form of a promissory note. The record is not clear why the final contracts as redrawn by Humpe Roney did not reflect the $500 promissory note. The deletion of any mention of the note was not at the request of either Respondent and does not appear to have been done intentionally by Humpe Roney. At no time was Ms. Hawks aware that a promissory note would be provided instead of cash for the last month's rent. Ms. Willoughby moved into the house on August 4, 1981. She stayed there for the months of August, September and October and part of November when she defaulted on the promissory note which was due on November 15, 1981. Upon her default she was evicted from the house. She is still in default on the promissory note and has no funds with which to pay it. When Ms. Hawks made a demand upon Gregoire-Gibbons for the $200 earnest money deposit plus the $500 last month's rent she received $200 and the $500 note. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint filed against Gladys A. Gibbons and Dorothy M. Comolli. DONE and RECOMMENDED this 9th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984.
The Issue The issues presented in this case concern an Administrative Complaint brought by the Petitioner against the Respondent, accusing the Respondent of failing to account or deliver, upon demand, money which he would not be entitled to retain, which money was due and owing to a real estate salesman employee of the Respondent broker, all in violation of Subsection 475.25(1)(d), Florida Statutes.
Findings Of Fact On December 9, 1981, Petitioner, State of Florida, Department of Professional Regulation, Board of Real Estate, now Florida Real Estate Commission, filed an Administrative Complaint against Respondent alleging the violation referred to in the Issues statement of this Recommended Order. Respondent who is a licensed real estate broker in the State of Florida, having been issued License No. 0137645, requested a Subsection 120.57(1), Florida Statutes, hearing, to resolve the factual disputes between the parties and the case was subsequently referred to the Division of Administrative Hearings for consideration. This request for assignment of a Hearing Officer was received on January 28, 1982, by the Division and a formal hearing was conducted on April 29, 1982. Notwithstanding notice provided to the parties, Respondent did not attend the hearing. At all times pertinent to the Administrative Complaint, Respondent, George F. Lewis, was the record broker for George F. Lewis Realty, Inc., located at 4237 Cape Coral Bridge Road, Fort Myers, Florida, 33907, the address listed with Petitioner as the business premises for Respondent. On December 2, 1981, Eleni Kaklis, a licensed Florida real estate salesman, employed by George Lewis Realty, Inc., while acting in the capacity of real estate salesman for that corporation, participated in the execution of a contract for sale and purchase in Lee County, Florida. The sellers were James Henry and Ruth Elizabeth Aalderink, and the purchasers were Stanley M. and Mary Jo Shaver. The terms and conditions of that contract may be found in the Petitioner's Exhibit No. 4, which is a copy of the contract admitted as evidence. The contract concerned residential property, and that property had been the subject of a listing through a real estate firm unaffiliated with the Lewis corporation. The listing broker was Aloia Realty. Kaklis had reviewed the multiple listings book in her office with the purchasers and had shown several other residences before the Shavers decided to purchase the Aalderink property. She also prepared the purchase contract which has been discussed. Respondent was not involved in the transaction, in the sense of actively showing property or consulting with the clients or in the preparation of the contract. A real estate closing was held on the Aalderink property in February, 1981. On February 17, 1981, George Lewis Realty, Inc., was paid a commission in the amount of $1,587.00, which represented the fifty (50) percent commission entitlement for the selling broker, with an equal amount being due the listing broker, Aloia Realty. The money paid the Lewis corporation was by a check which check was cashed by George Lewis. See Petitioner's Composite Exhibit No. 3. In keeping with the terms and conditions of the employment agreement between Kaklis and George F. Lewis Realty, Inc., set forth in Petitioner's Exhibits Nos. 5 and 6, specifically the numbered paragraphs 4 and 5, at page 11 of Petitioner's Exhibit No. 6, Kaklis was to receive fifty (50) percent of the commission paid to George F. Lewis Realty, Inc., less franchise fees due to Better Homes and Gardens. (Petitioners Exhibit No. 5, is constituted of a copy of excerpts of the contract between Kaklis and Lewis Realty, Inc., in the person of George Lewis, and Petitioner's Exhibit No. 6 is a format of the complete contract signed by Kaklis with the corporation through the offices or George Lewis, broker for the corporation.) Respondent was responsible for and obligated to Kaklis for the payment of her commission fee, which had been given to him by Kaklis by the delivery of a title company check which has been discussed herein. Nonetheless, Kaklis did not receive the commission fee for the sale of the Aalderink property and has been refused that commission in the face of repeated demands, on at least three (3) occasions. Respondent has always answered that request by stating that he did not have the money.
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact At all times here involved Respondent was registered as a real estate broker with the FREC and was an active firm member of Realcor, Inc., a registered corporate broker. During the latter part of 1975 Realcor was the sales agent for a condominium development at Fort Lauderdale, Florida. In October 1975 Edward J. Briglia visited the condominium preparatory to buying a unit and talked to and was shown around the condominium by Nicholas Polizzi, a broker-salesman for Realcor. Upon leaving, Briglia advised Polizzi that he was returning to his home in the northern United States and if he decided to buy would call Polizzi. Shortly thereafter, Briglia telephoned the real estate office and talked to Constant Cholvin, a salesman, who advised Briglia that Polizzi was no longer associated with Realcor and, when Briglia said he was ready to buy, offered to send him a contract. Cholvin wrote one or two letters, drafted the contract to purchase and talked to Briglia by phone two or three times. He did not appear at the closing and never had personal contact with Briglia. Before Briglia closed his purchase the sale of the condominium was turned over to another broker and most of Briglia's contacts after first signing the contract were with the other firm. The contract was changed to another unit before the contract was finally closed and Briglia obtained occupancy. When the commission earned by Realcor on the sale was paid, Respondent was aware of the participation by Cholvin and Polizzi in the sale to Briglia, and when Cholvin demanded payment of the entire salesman's commission, Respondent told him to get together with Polizzi and agree to a settlement of the commission (Exhibits 6 and 8). Thereafter the communications between Polizzi, Cholvin and Respondent deteriorated due to the latter being out of state a great deal plus some difficulty in Respondent receiving mail that was supposedly forwarded to Respondent from Florida. Respondent acknowledged that he received information from Polizzi that he had agreed to a 50-50 commission split with Cholvin but never received Cholvin's acquiescence to such division of the commission. Cholvin averred that he responded to Exhibit 8 agreeing to accept the division of the commission with Polizzi but never heard further from Respondent until the week of the hearing. After the hearing had been scheduled, Respondent, presently residing in North Carolina, forwarded the commission to his son in Delray Beach to divide between Polizzi and Cholvin and obtain their releases. This was accomplished immediately prior to the commencement of this hearing. During all time here involved the commission due the salesman on the sale to Briglia remained in escrow.
Findings Of Fact Prior to the commencement of the hearing the parties stipulated to the factual allegations contained in paragraphs 1 through 12 of the Administrative Complaint and to the introduction of Exhibits 1 through 17. The facts stipulated to in the Administrative Complaint are made a part of these findings of fact and this Recommended Order. Donald Jandro on or about January 2, 1975, sold a home located on Landsdale Circle, Tampa, Florida, which had been listed for sale by Dale Mabry Realty, Inc. Jandro paid to Dale Mabry a 50 percent commission based upon the policy of Jandro Realty as a cooperating broker in the multiple listing service. On or about February 9, 1975, Dale Mabry Realty, Inc., sold a home located on Wallace Circle, Tampa, Florida, which had been listed for sale by Jandro Realty. Dale Mabry Realty, Inc., paid to Jandro Realty a 30 percent commission as stated on the multiple listing service card. The 30 percent commission was a lower percentage than that paid by Jandro Realty to Dale Mabry Realty, Inc., less than a month before. At this time the Tampa multiple listing service had a policy which had been adopted on October 2, 1972, and further defined on March 15, 1973, as follows: "Selling realtor shall pay the listing realtor the highest listing commission which either office offers on its current listings which are required to be filed in MLS." See late filed Exhibit 18. Jandro, pursuant to the aforestated policy, demanded from Dale Mabry Realty, Inc., a 50 percent commission on the Wallace Circle transaction. This demand was not honored and on April 25, 1975, Donald Jandro filed a complaint with the Professional Standards Committee of the Tampa Board of Realtors which as of the date of the formal hearing had not ruled on the dispute. On or about May 26, 1975, Jandro sold a home located at Anita Boulevard, Hillsborough County, which Dale Mabry Realty, Inc., had listed for sale. Both parties agreed that the commission provided on said sale called for a 50/50 split of commission. However, Jandro held back Three Hundred Fifty Dollars ($350.00), the amount he alleged was due Jandro Realty on the Wallace Circle transaction, tendering Five Hundred One Dollars and Seventy-Nine Cents ($501.79) to Dale Mabry Realty, Inc., by check. The reciprocal arrangement within the multiple listing service was repealed effective April 1, 1975. See Exhibit 18.
Recommendation Based on the foregoing findings of facts and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Donald H. Jandro to deposit Five Hundred One Dollars and Seventy-Nine Cents ($501.79) to his escrow account so that all funds related to the transaction in question are in escrow as required by the rule, and further that the Florida Real Estate Commission issue a letter of reprimand for failing to deposit the Five Hundred One Dollars and Seventy-Nine Cents ($501.79) to his escrow account upon Dale Mabry's refusal of Jandro's check. DONE and ORDERED this 2nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Donald H. Jandro 4007 Wisconsin Avenue Tampa, Florida 33616 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Plaintiff, vs. PROGRESS DOCKET NO. 3119 CASE NO. 77-409 DONALD H. JANDRO, HILLSBOROUGH COUNTY Defendant. /
The Issue The issue is whether respondent's license as a real estate broker should be disciplined for the reasons stated in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Yolanda Jean Ramsey, was a licensed real estate broker having been issued license number 0012364 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent operated a real estate firm under the name of Ramsey Realty located at 19940 Gulf Boulevard, Indian Shores, Florida. Her husband, Drew Ramsey, was a condominium developer but he was not a licensed realtor. Sandra A. Hawley (Hawley) was a licensed salesperson for Ramsey Realty from April 1981 until she was terminated by respondent on January 6, 1982. She was employed by respondent pursuant to an oral agreement and was to receive a 3% commission on all closed sales. This description of Hawley's compensation arrangement was not contradicted by respondent. Drew Ramsey was then developing several condominium projects in Pinellas County, and Hawley's sales activities were focused on the sale of those condominiums through Ramsey Realty. Hawley was described by respondent as being the best salesperson in the firm. From April 1981 through December 1981, Hawley recalled that her W-2 statement reflected $76,000 in commissions actually received. By the time she was terminated, Hawley represented that she had either closed on units or had firm contracts on other units to earn an additional $279,000 in commissions. Although respondent did not agree she owed Hawley any money due to various setoffs, the $279,000 figure was not credibly contradicted, particularly since respondent's records relating to those sales were allegedly destroyed or lost by respondent at about the time certain civil litigation was begun by Hawley. On January 6, 1982, respondent was terminated by respondent for cause. According to respondent, Hawley was delinquent in making payments to her husband for several condominium units Hawley had bought for investment purposes, and on one occasion, Hawley had not turned over to Ramsey Realty a deposit on a resale of a unit. She was also accused of bouncing checks. After she left Ramsey Realty, Hawley made demand for commissions still owed. Between January and June 1982 she was paid approximately $40,000 by respondent but received nothing after that. She eventually sued respondent in circuit court for the unpaid commissions and obtained a final judgment against respondent on December 10, 1987 for $76,000 plus interest, or a total of $118,618.88. To date, Hawley has been unable to obtain payment of the judgment. At hearing respondent acknowledged that a judgment pertaining to Hawley's unpaid commissions was entered against her and that no appeal of that judgment was taken. According to Ramsey, she has refused to pay Hawley based upon her attorney's advice. Respondent's principal defense against paying the commissions is that Hawley allegedly owes her and her husband substantial amounts of money which offset the earned commissions. Testimony at hearing revealed that these matters have been the subject of extensive and lengthy civil litigation between Hawley and the Ramseys. Hawley represented that she has prevailed in all court actions, and this was not contradicted by respondent. However, none of the judgments and mandates (if an appeal was taken) were made a part of this record. The principal offset relates to a lease-purchase agreement entered into by Hawley and her son, James Monette, Jr., and Drew Ramsey in June 1981 whereby Hawley and her son agreed to lease, with an option to purchase, a restaurant/bar known as The End Zone located on Dale Mabry Avenue in Tampa, Florida. On June 18, 1981 Hawley and her son executed a promissory note in the amount of $170,000 payable to Drew Ramsey and to be secured "by an assignment of commissions of even date herewith". The note also provided that "certain commissions earned by Sandra A. Hawley as a real estate salesperson for Ramsey Realty ... shall be applied as prepayments on account hereof." This was confirmed in a letter sent by Hawley to respondent on June 18, 1981. The letter authorized Ramsey to "pay one-half of all commissions which I have earned or will earn from working as a real estate person for Ramsey Realty to Drew Ramsey on account of the indebtedness under the Note until it is paid in full." The letter further provided that if Drew felt "insecure" about the note, Yolanda was authorized to "assign such greater percentage of (her) commissions to Drew Ramsey on account of the indebtedness until it is paid in full." Hawley admitted signing the promissory note but pointed out that she had earned enough commissions to easily pay off the note. She contended that the transaction was a ploy to allow Ramsey to retain all of her commissions and thereby deprive her of adequate capital to successfully operate the restaurant. Hawley further asserted that the transaction was later declared null and void in one of the civil actions between the parties because of certain fraudulent representations made by Drew in inducing her to enter into the agreement. However, the final judgment, which is the best evidence of the outcome of the suit, is not of record. On October 1, 1981, an agreement and promissory note was executed by Hawley wherein she promised to pay Drew Ramsey and his partner, George Karpay, $58,162.90 plus 18% interest for monthly payments owed Ramsey and Karpay on five condominium units Hawley had previously purchased from them. The note was secured by Hawley's commissions earned at Ramsey Realty. Hawley acknowledged that the signature on the documents was her own but contended that the documents had been altered after she signed them. On October 1, 1981, Hawley also executed an assignment of commissions whereby she agreed to authorize Ramsey Realty to disburse all commissions earned to Drew Ramsey and Karpay until the promissory note described in finding of fact 9 was satisfied. Again, Hawley acknowledged that the signature appeared to be her own but she contended the document was altered after it was signed. According to respondent, the commissions earned by Hawley were not held in the firm's escrow account. Instead, while Hawley was still an employee, such moneys were disbursed by the title company at closing directly to Ramsey Realty, and then Ramsey wrote a check to Hawley as commission compensation. After Hawley was terminated, the manner in which Ramsey received Hawley's earned commissions and their subsequent disposition are not of record. However, respondent represented, without contradiction, that they were not held in the firm's escrow account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating subsection 475.25(1)(d) and that her broker's license be suspended for three years. The other charge should be dismissed. DONE AND ORDERED this 14th day of December, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of December, 1989.
Findings Of Fact At all times material hereto Respondents were licensed as alleged. In 1980 Respondent Allen conceived the idea of setting up a computer listing service for condo owners desiring to rent their Florida condos. He formed VCI to act as an interface between the owners and travel agents or brokers desiring rental for their customers. VCI was never licensed as a real estate broker nor was it ever held out to be so licensed. Respondent mailed out forms to condo owners to complete if they wanted to have their condos placed in the exchange bank to be established by VCI (Exhibit 6). He also prepared a Computerized Reservations Handbook (Exhibit 5) which was also sent to condo owners. Among those responding to this solicitation were Day and Forsgren, who sent VCI $60 each. Because the expenses of setting up VCI, mailing out material, renting computer, and renting office space far exceeded the income received from those owners accepting VCI's offer and the capital with which Respondent started VCI, the company ran out of funds before the catalog was published. The computer was repossessed in December of 1981 after having been rented for one year, thereby removing the tool which was to keep track of the condos available for lease. Some $4,128 was collected from condo owners before VCI had to be abandoned for lack of funds. Ms. Gertrude Naumann, broker at Daisy Realty, Inc., saw the VCI brochure and contacted Respondent. She had contacts with Canadian travel agencies to whom she had rented condominiums in the Orlando area in the past and was interested in expanding to the Clearwater-St. Petersburg area. After receiving an advance deposit from the Canadian travel agencies, Naumann met with Respondent in her office and drafted a contract, Exhibit 1, and gave Respondent a binder check in the amount of $5,000. Although Ms. Naumann testified that she understood, and specifically told Respondent, that the $5,000 deposit must be placed in escrow, the rough draft of the contract (Exhibit 4) that became Exhibit 1 when retyped, shows the words "non-interest bearing trust account" to have been deleted, and the sentence changed to read "said binder to be held in a bearing account and to be used only upon completion of rental arrangements and for telephone security, cleaning fees and not to be applied toward rents. By this contract Respondent agreed to block out and have available 20 one-bedroom units and 5 two-bedroom units from January 30, 1982, to March 30, 1982, and Daisy agreed that 30 days prior to January 30, 1982, Daisy would notify VCI the number of units actually required so units not required could be released for renting to others. By letter dated January 21, 1982 (Exhibit 3) Daisy Realty advised VCI, inter alia, that for the period January 30 to February 20 to release all units-- none would be required. Ms. Naumann testified that her office made frequent telephone calls to Respondent during December, 1981, and January, 1982, modifying the number of units desired for rental. Respondent denies receiving any such calls or that he received notice that none of the units blocked out from January 30 through February 20, 1982, would be released until he received Daisy's hand-delivered letter on January 21, 1982. After receiving Exhibit 3, Respondent considered Exhibit 1 void because of the breach by Daisy but leased units to clients produced by the Canadian travel agents. These leases were conducted through Condo Resorts Management, a real estate company. The evidence was not disputed that these rentals were paid to Respondent both by the Canadian travel agencies and by Daisy. In several instances, the rental for the units came to Condo Resorts Management from or through Daisy. On at least one occasion, Daisy deducted the commission from the rental received before forwarding it to Condo Resorts Management. When Naumann was unsuccessful in getting the $5,000 deposit returned, she filed a complaint with the Florida Real Estate Commission and, following an investigation, the Administrative Complaints here being considered were filed. Ms. Naumann has made no attempt to recover the deposit or commissions by instituting civil proceedings against Allen. The contract (Exhibit 1) provides that VCI would make available 20 one-bedroom units and 5 two-bedroom units for the period January 30 to March 20, 1982, at a total rental of $75,048. The total rent paid Respondent based on the units actually rented was slightly more than $7,000.
