Findings Of Fact Respondent has been a registered salesman with the Commission since November 2, 1972. On or about June 14, 1979, Respondent submitted to the Commission an application for registration as a salesman which contained the following questions: 17. (a) Has any license, registration or permit to practice any regulated profession, occupation or vocation been denied, revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law; or is any proceeding now pending? (b) Have you ever resigned or withdrawn from, or surrendered, any license, registration or permit to practice any regulated profession, occupation or vocation, while such charges were pending? Respondent responded negatively to both the above quoted questions on his application form. In reliance on these statements, the Commission registered the Respondent as a real estate salesman on November 22, 1972. Prior to his submission of an application for registration as a Florida real estate salesman, Respondent had been a practicing attorney in the State of New York. In the course of his practice of law, Respondent had been investigated by the Brooklyn Bar Association and charged with defrauding clients of proper shares of settlements; failing to maintain a special escrow account, and commingling personal funds with those of his clients; giving false testimony before a Grievance Committee of the Brooklyn Bar Association; failing to obtain court approval of infants' settlements; filing numerous retainer and closing statements which he knew to contain false information; failing to file retainer and closing statements with the Judicial Conference; grossly neglecting the prosecution of clients' cases; concealing the infancy of clients and failing to have guardians appear for infants in court action; representing conflicting interests; and engaging in systematic solicitation of negligence cases. While the above-mentioned charges were pending, Respondent submitted his resignation as a member of the Bar of the State of New York, effective February 1, 1971. Respondent's resignation was accepted by the Appellate Division of the Supreme Court of the State of New York by Opinion issued March 1, 1971. On February 24, 1970, Respondent applied for membership in the Florida Bar. In his application for membership in the Florida Bar, Respondent answered falsely to an inquiry concerning whether any charges or complaints, formal or informal, had ever been made or filed, or proceedings instituted against him while practicing law in any other jurisdiction. Subsequently, Respondent's license to practice law in Florida was revoked by Opinion of the Florida Supreme Court dated July 21, 1971.
Findings Of Fact At all times material hereto, Respondent was a licensed real estate salesman having been issued license number 0413725. On November 8, 1983 Respondent submitted a Request for Active Salesman's License indicating the name of the firm at which he would be employed as Corporate Investments of Florida, Inc., d/b/a Corporate Investment Business Brokers and his broker as Lynne Levy. Respondent worked as a salesman with Lynne Levy as his broker until he was terminated by her on or about May 22, 1984. Respondent testified he was not told of his termination until 4:00 p.m. on May 25, 1984 at which time Lynne Levy also resigned as broker with Corporate Investments of Florida, Inc. Respondent's license was cancelled on May 29, 1984 due to the fact that his license was no longer placed with a broker. From May 29 until July 9, 1984 Respondent's license was not placed with a broker and was therefore in a "cancelled" status. On July 9, 1984 Respondent's license was reactivated since he had been employed by another real estate broker. On or about June 1, 1984 Respondent attempted to have Mr. Bert Malone register as broker for Corporate Investments of Florida, Inc., d/b/a Corporate Investment Business Brokers, but that application was never accepted by the Florida Real Estate Commission due to Respondent's failure to submit information requested by the Commission, including a copy of the corporation's minutes when Lynne Levy's resignation was accepted and Respondent was elected an officer or director. Respondent was co-owner with Robert L. Levy, Lynne Levy's husband, of Corporate Investments of Florida, Inc., d/b/a Corporate Investment Business Brokers. Lynne Levy was President, Vice President, Secretary and Treasurer of the Corporation, as well as its broker. Robert L. Levy and Respondent each owned 50% of the corporation, but Respondent held a 51% voting interest to Levy's 49%. Respondent obtained his franchise on June 17, 1983 to open an office in Florida from Corporate Investment Business Brokers, Inc., a franchisor. Respondent contributed the franchise to the corporation he formed with Levy and agreed to keep the franchise current. The franchisor terminated its franchise agreement with Respondent on May 17, 1984 due to Respondent's failure to make payments due thereunder. On June 12, 1984 the franchisor notified Respondent that it would not reconsider the termination of the franchise. On or about May 30, 1984 Respondent attended the closing of a real estate transaction between Fred Hage, seller, and Frank De Santo, buyer. This was while Respondent's license was cancelled and inoperative. The property had been listed by Respondent and he received a check for $9000 made out to Corporate Investments of Florida, Inc., which represented the broker's commission. On the same day Respondent opened a checking account at Barnett Bank of Central Florida, Longwood Office, and deposited the $9000 commission check in that account without the knowledge or consent of Lynne Levy, his former registered employing broker. On August 16, 1984 Respondent disbursed $3750 to Robert L. Levy, Lynne Levy's husband, from this checking account as the co-partner's share of the $9000 commission. Respondent had obtained the listing agreement from Fred Hage on this property on March 14, 1984 at which time Respondent and Hage agreed to a $6000 commission, or 12% of the total price upon consummation of a sale. Or or about April 4, 1984 Hage signed another listing agreement which reflected a $9000 commission. When the transaction closed on or about May 30, Respondent collected the $9000 commission. Hage signed the closing statement and the purchase contract for this transaction, both of which disclosed the $9000 commission. Hage did not question the commission amount at the closing but waited until June 6, 1984 to raise his objection in a letter to Lynne Levy. On or about May 21, 1984 Respondent discussed with Paul Russell, II, the acquisition of a 50% partnership interest in his real estate franchise in the central Florida area for $50,000. Respondent admits that he was informed on May 17, 1984 that his franchise had been terminated and this termination was reconfirmed on June 12, 1984. Respondent did not inform Russell during their discussions that his franchise had already been terminated, but Russell decided not to go through with the deal. On or about June 2, 1984 while his license was cancelled and inoperative, Respondent received a check for $400 from Kenneth L. and Mary Lou Welker which represented one- half of the appraisal cost on certain property they were selling through Respondent as the selling agent. Respondent represented that he immediately ordered the appraisal as the Welkers requested, but Mrs. Welker learned that it had not been ordered by June 5 and stopped payment on the check.
Conclusions The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), Florida Statutes. In pertinent part Petitioner contends that Respondent is subject to disciplinary action for having been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing or breach of trust in a business transaction in violation of Section 475.25(1)(b) having failed to account for or deliver a share of a real estate commission to a person entitled thereto or to notify the Florida Real Estate Commission concerning doubts or conflicting demands being placed upon such funds as required by Section 475.25(1)(d): and having failed to immediately place with his registered broker money entrusted to him by persons dealing with him as a real estate salesman in violation of Section 475.25(1)(k), F.S. Petitioner also urges that Respondent violated Sections 475.42(1)(a) and (b), F.S., by operating as a broker or real estate salesman without a valid and current license, or for a person not registered as his employer. Finally, it is alleged that Respondent violated Section 475.42(1)(d), F.S. which states, in part: No salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer: . . . The evidence clearly and convincingly establishes that between May 29 and July 9, 1984, Respondent did not have a current active salesman's license due to his termination by his broker, Lynne Levy. Yet during this time when his license was inoperative and cancelled, Respondent engaged in real estate transactions with Fred Hage on May 30, and with Kenneth L. and Mary Lou Welker on June 2. In each transaction Respondent collected money from these persons without the express consent of an employing broker since Respondent's license had been cancelled and was not placed with an employing broker at the time. Respondent did not immediately place these moneys which he received while acting as a salesman with a registered broker. Thus, Respondent violated Sections 475.42(1)(d) and 475.25(1)(k) on these two occasions. His actions on these occasions also constituted violations of Sections 475.42(1)(a) and (b) since he was operating during these real estate transactions as a salesman without a current valid license and without a registered employing broker. Respondent also violated Section 475.25(1)(d) by improperly placing the $9000 commission he received from Fred Hage in a checking account he opened on the same day he received the commission check. At the time he was not properly licensed to engage in real estate transactions and receive commissions, and he should reasonably have foreseen that doubts would arise and conflicting claims would be made for these funds, as in fact they were. Under these circumstances, Respondent was required to notify the Florida Real Estate Commission of such doubts or conflicting demands, which he never formally did. Respondent did subsequently resolve the conflicting demand on these funds with the disbursement $3750 to Robert L. Levy on August 16, 1984, but his technical violation of Section 475.25(1)(d) by failing to formally notify the Commission remains. The evidence presented at the hearing does not establish clearly or convincingly that Respondent violated Sections 475.25(1)(b), F.S. It cannot be concluded that Respondent dealt fraudulently or dishonestly with Fred Hage when he collected a $9000 commission from the transaction on May 30. Although Hage had previously signed a listing agreement with Respondent that provided for a lesser commission, Hage did sign a second listing agreement on April 4 which called for the $9000 commission. There is no evidence of fraud or misrepresentation in the execution of this second agreement. In fact, Hage specifically acknowledged the $9000 commission at closing by signing the closing statement and the purchase contract, both of which disclosed the commission amount. Hage did not object to the commission until June 6, one week after the closing and two months after he signed the second listing agreement with Respondent which provided for this commission. Respondent's discussions with Paul Russell, II, about acquiring an interest in his franchise do not constitute a violation of Chapter 475. Although at the time of these discussions on May 21 Respondent had been notified by his franchisor of the termination of his franchise, the franchisor did not reconfirm this termination until June 12. By this time Russell had already decided not to go through with the deal or pursue discussions with Respondent. Russell was not harmed by these discussions and the simple fact that these discussions took place prior to the reconfirmation of the franchise's termination does not constitute a violation of Section 475.25(1)(b). In summary, it has been clearly and convincingly established that Respondent violated Sections 475.42(1)(a)(b) and (d) and 475.25(1)(k) in his dealings with Fred Hage and the Welkers on May 30 and June 2, 1984, and also that he violated Section 475.25(1)(d) in his handling of the $9000 commission he received from Hage. However, no violation of Section 475.25(1)(b) has been established. The violations in this case arise from two transactions occurring within a three day period. There is no evidence that Respondent engaged in a recurring course of conduct which would justify the imposition of the penalty of revocation of his license under the circumstances as established herein. Pauline v. Borer, 274 So. 2d 1 (Fla. 1973) Kopf v. Florida Real Estate Commission, 379 So. 2d 1327 (Fla. 3rd DCA 1980). Therefore, a reasonable suspension of Respondent's license is appropriate in this case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued suspending Respondent's license for a period of ninety (90) days. DONE and ENTERED this 17th day of July, 1985 at Tallahassee, Florida. DONALD D. CONN 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 17th day of July, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Wallace E. Hunter 214 East Hornbeam Drive Longwood, Florida 32779 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 Whether James F. Robertson signed a false affidavit in violation of Section 475.25(1)(a), Florida Statutes.
Recommendation In making a recommendation in this matter, the Hearing Officer considers the following factors relating to James F. Robertson's fitness to be a registrant of the Florida Real Estate Commission. Robertson admitted that he realizes that he executed a false affidavit. Robertson did not falsify the affidavit with the intent to defraud anyone because he intended to pay all the subcontractors and materialmen and thought that he had the ability to pay them. Robertson pledged his personal assets to the payment of the L & M account print to the lien which indicates his intent to make good the account. Robertson is apparently concerned about the Smith's problem but has not been able to settle the account with L & M. Based on the foregoing findings of fact, conclusions of law, and facts in mitigation, the Hearing Officer would recommend that the registration as real estate broker of James F. Robertson be suspended two years; and further, that this suspension be suspended as long as Robertson makes regular payments on the debt to L & M Builder Supplies, Inc., such that the debt will be liquidated at the end of the two year period and the lien against the Smith's home satisfied. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32303 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Robertson c/o Gernada Realty, Inc. 2007 Parsons Avenue, North Seffner, Florida 33584
Recommendation The Hearing Officer having found factually that the Respondents did not violate the provisions of Chapter 475 Florida Statutes, as charged, recommends that no action be taken against the registration of any of the Respondents. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Spencer Fox, Esquire Suite 107, 9065 Galloway Road Miami, Florida 33176
Findings Of Fact Respondent Shankar S. Agarwal is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0312860. The last license issued was as a broker. Respondent Super Realty, Inc., is now and was at all times material hereto a licensed real estate corporation in the State of Florida having been issued license number 0231630. The last license issued was as a broker located in Hollywood, Florida. At all times material hereto, Respondent Shankar S. Agarwal was licensed and operating as a qualifying broker and officer for Respondent Super Realty, Inc. Respondents advertised for sale by newspaper advertisement a VA repossessed property being a four unit apartment building in Fort Lauderdale, Florida. In April, 1985, Warren and Judith Fieldhouse responded to Respondents' ad, and Respondent Agarwal arranged to meet the Fieldhouses at the property. At the property, the Fieldhouses informed Respondents that they wished to purchase a property as an investment and required that any property purchased by them result in income to them as opposed to resulting in a loss for them. Respondent Agarwal specifically represented to the Fieldhouses that the rental character of the neighborhood had been assessed by the Respondents, that Respondents were qualified to appraise the rental character, and that each unit could be rented for $300 or more per month. Respondent Agarwal further represented that the rent for the property would therefore exceed its expenses. The Fieldhouses decided that they wished to purchase the property based upon Respondents' representations. Respondent Agarwal required the Fieldhouses to give him a check for $1,000 a while still at the property before he would return with them to the office of Super Realty, Inc., to draft a purchase contract. Respondent Agarwal and the Fieldhouses went to Super Realty, Inc., where a purchase contract was drafted by Respondent Agarwal and signed by the Fieldhouses. Respondent Agarwal refused to give to the Fieldhouses a copy of that contract. Respondent Agarwal further advised the Fieldhouses that they were to obtain the required liability insurance on the property from his insurance agency and that they were not to use their own insurance agency. The Fieldhouses refused to comply with Agarwal's direction to them. Changes were subsequently made by Respondents to the Fieldhouses' purchase contract. Although those changes were approved telephonically by the Fieldhouses, Respondents never obtained the Fieldhouses signatures approving the changes in the contract. A closing was scheduled by Respondents at the office of Super Realty, Inc., on May 22, 1985. The Fieldhouses inspected the property just before the closing and found that the property's "as is" condition on the day of closing was worse than its "as is" condition on the day that they first saw it and entered into the contract for the purchase and sale of the property. Appliances were missing, and damage was done to the structure. The Fieldhouses objected to the condition of the property on the date of closing. Yet, the closing began. Respondent Agarwal began handing the Fieldhouses individual documents to sign. When he handed them a required financial disclosure statement, the Fieldhouses realized that the mortgage plus insurance and taxes payments would exceed the rental income which Respondents had represented could be projected from the units, that the amount of payments and other representations initially made by the Respondents were not incorporated into the closing documents, and the rental income for the property would not exceed the property's monthly expenses. The Fieldhouses refused to continue with the closing. They demanded copies of the documents that they had signed, but Respondents refused to give them copies of those documents. They demanded a refund from Respondents of their $1,000 deposit, but Respondents refused to refund their money to them. Although the Fieldhouses had signed a note and mortgage on the property before they refused to continue forward with the closing, they gave Respondents no monies toward the purchase of the property to increase the $1,000 earnest money deposit to the required down payment for the property. Respondents knew that the Fieldhouses did not pay the required cash to close on the property, the additional consideration required under the contracts. After the closing, the Fieldhouses made additional demands on Respondent for the return of their $1,000. Respondents refused to return that money to them and further refused to discuss the matter with them further. Respondents submitted the Fieldhouse closing documents to the Veterans Administration claiming a sales commission due to the Respondents in the amount of $5,740, even though Respondents knew that the sales transaction had never closed. Since the Veterans Administration had experienced difficulties with Respondents' complying with their rules and regulations on previous occasions, the VA took the position that the Respondents were not entitled to a commission since no sale had taken place and that the Respondents should refund to the Fieldhouses their $1,000. Respondents sued the Veterans Administration for a sales commission. At the time that Respondents sued for a commission, they knew that they were entitled to no commission since there was no sale. When the Veterans Administration filed an Answer to Respondents' Complaint indicating that it intended to fully defend Respondents' false claim, Respondents voluntarily dismissed their litigation against the Veterans Administration. The VA now has possession of the Fieldhouses' $1,000 deposit which it intends to return to the Fieldhouses. Although Mr. Fieldhouse was a licensed real estate salesman during the time period material hereto, he had not actively worked as a real estate salesman. Therefore, the Fieldhouses relied upon the Respondents as licensees to responsively perform the sales transaction and further relied upon Respondents' representations regarding the property's income and expenses. Respondents never advised the Florida Real Estate Commission that demands had been made for the return of the $1,000 which Respondents held in escrow until such time as they voluntarily forwarded the money to the Veterans Administration despite the Fieldhouses' demands for its return to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing Counts V and VI of the Administrative Complaint, finding Respondents guilty of the remaining allegations in the Administrative Complaint, and revoking Respondents' real estate broker licenses. DONE and RECOMMENDED this 21st day of April 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Super Realty, Inc. c/o Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to these proceedings, respondents Barry P. Rifkin and Flag Realty, Inc. were registered with the Florida Real Estate Commission as brokers, and respondent Sandra Mae Rifkin was registered as a broker-salesman. Respondents caused to be placed in the yellow pages of a Southern Bell Telephone and Telegraph Company telephone directory for Hollywood a full page advertisement containing the words "Free Appraisals by Licensed Real Estate Appraiser". As noted above, all the respondents were registered with the Florida Real Estate Commission, but none were specifically licensed as appraisers by any governmental or regulatory agency regulating only appraisers. Bobby Glenn Johnson, who was a broker for Flag Realty, Inc. at the time the ad was placed, had received on December 1, 1971, a certificate from an instructor of the Broward County Public Schools, Division of Vocational, Technical and Adult Education, certifying that ,he had met the requirements of a 36-hour course of training in real estate appraising. Prior to November or December of 1974, respondent Barry Rifkin and one Arnold Savader each held a fifty percent interest in Broward Investment Company. The purpose of this company was to purchase from the owner derelict houses needing repair or houses going into foreclosure, fix them up and then resell them. It appears from the testimony that at the time houses were originally purchased by Broward Investment, respondent Rifkin was nothing more than a silent partner an investor who at times gave advice to Savader regarding the value of the property to be purchased. After the houses were repaired or restored by Savader, they were listed with Flag Realty, Inc. for resale. The homes purchased were put in Savader's name, and only Savader's name appeared on the Company's business card. It appears that prior to purchasing the homes and listing them with Flag Realty, all contact with prospective clients was done by Savader. A form of advertising used by Broward Investment Company was a door- hanger advertisement stating in part "No Brokers Involved (No Commissions)". There was no evidence that brokers' commissions were ever charged to the sellers.
Recommendation In consideration of the findings of fact and conclusions of law recited above, it is recommended that the charges contained in the information based upon the offenses of misleading advertising be dismissed. Respectfully submitted and entered this 17th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Dorothy M. Azar answered Question 6 on her application incorrectly with the intent to obtain her license by fraud, misrepresentation or concealment.
Findings Of Fact Dorothy M. Azar is a registered real estate saleswoman holding License No. 0164341 issued by the Florida Real Estate Commission. Azar applied for licensure initially on June 7, 1976. See Exhibit 1, pages 1 and 2. Azar subsequently reapplied on August 24, 1976. This application was stamped received by the Florida Real Estate Commission on August 27, 1976. Azar was arrested on June 9, 1976 pursuant to the Information filed by Robert Eagan, State Attorney, Ninth Judicial Circuit, State of Florida, which charged Azar with a violation of Florida Statute 812.021 and alleged that she took, sold or carried away property; to wit: clothing, the property of Robert Kleinmann as custodian and of a value of more than One Hundred Dollars ($100.00) with the intent to permanently deprive Kleinmann of the clothing. This criminal information was received as Exhibit 2. When Azar completed her second application on August 25, 1976, no action had been taken on the criminal charges pending against her. On or about this date, according to her testimony, she went from Lehigh Acres, Florida, to the Florida Real Estate Commission Offices in Winter Park, Florida, to review the examination which she had taken and failed in July. While there, she filled out her second application, pages 3 and 4 of Exhibit 1. According to her testimony, Azar was very rushed because her review appointment was for only one hour and she had arrived late. She stated that prior to her review she was given an application to fill out and that she did not even read the questions but copied her answers from her first application. She further testified that she had at first copied her old address in Orlando on the second application, correcting it to her new address in Lehigh Acres in the margin of the application. See page 3, Exhibit 1. On September 8, 1976, the Florida Real Estate Commission made a check of any arrests of Azar as indicated by the annotation on the second application under Question 6. On November 30, 1976, Azar entered a plea of no contest to the charge of attempted grand larceny and adjudication was withheld. See the Court Minutes, Exhibit 3, and the testimony of Azar. On November 15, 1976, the Florida Real Estate Commission issued Azar her license as a registered real estate saleswoman. The answers to Questions 4 and 5 on the second application filed by Azar differ slightly from the answers given to those questions on her first application. Although Azar testified that she did not read the questions on the second application but recopied her answers from her first application, the fact that the entries on the second application to Questions 4 and 5 differ from those on the first application indicates that Azar at least read the two questions preceding Question 6. This fact and the content of Question 6 lead to the conclusion that Azar did read Question 6. Further, an arrest on a charge of Grand Larceny within the preceding ninety days would be sufficiently memorable for Azar to recall when prompted by reading Question 6. Having determined, that Azar did in fact read Question 6 and would have remembered her arrest, one must conclude that Azar knowingly did not correctly answer Question 6 and therefore intended to conceal her arrest.
Recommendation The Hearing Officer, based upon the foregoing Findings of Fact and Conclusions of Law, recommends that the Florida Real Estate Commission revoke the registration of Dorothy N. Azar as a registered real estate salesman with leave for Azar to immediately refile her application. DONE and ORDERED this 12th day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 E. G. Couse, Esquire 2069 First Street, Suite 202 Post Office Drawer 1686 Fort Myers, Florida 33902
The Issue The Administrative Complaint alleges that the Respondents are guilty of fraudulently withholding a commission and failing to account for said commission. The Respondents contend that there was no commission owed to the salesperson because the salesperson did not obtain the listing contract upon which the transaction closed and had been discharged for cause before a contract for purchase was obtained. The factual issues upon which the case is determined is whether the listing contract upon which the transaction closed was obtained by the salesperson who claimed the commission, and whether the contract for purchase was received before the salesperson was discharged for good cause. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaint and at the time of hearing, the Respondent, Jacqueline B. Ousley, held real estate broker's license number 0333339 and operated the Respondent corporation, Touch of Class Realty, Inc., which held corporate real estate broker's license number 0218522. Both licenses were issued by the Florida Real Estate Commission. (See Petitioner's Exhibit 1.) Diane Carroll was employed by the Respondents as a real estate salesperson from February to June l2, 1982. On June 13, 1982, Ms. Carroll was discharged for good cause by the Respondents. On May 25, 1982, Ms. Carroll obtained an open listing on the Breezeway Motel, 2001 North Dixie Highway, Lake Worth, Florida, from Carl C. Summerson. This listing was good through June 25, 1982. (See Petitioner's Exhibit 2.) Based upon this contract, the Respondents showed the property to prospective buyers, to include Anthony and Deborah Hedley, the ultimate purchasers of the property. However, after the Hedleys had become interested in the property, the Respondents became aware that Summerson was not the sole owner of the Breezeway Motel. Because of the interest of the Hedleys and the prospects of selling the property, the Respondents sought and obtained an exclusive listing agreement from both owners of the motel, Carl Summerson and Roy Chapin, which was signed on June 14, 1982. As an exclusive listing, this contract supplanted the open listing obtained by Ms. Carroll on May 25, 1982. The Respondents obtained an offer to purchase the Breezeway Motel from the Hedleys on June 16, 1982, which offer was accepted by Summerson and Chapin. This transaction closed, and the Respondents received one-half of the ten percent commission, $33,800. The custom of the profession is that salespersons earn a listing commission on a listing contract obtained by them while they were employed if a contract for the purchase of the property is obtained before the salesperson leaves the broker's employment. The Respondents tendered a "referral fee" of $845 to Ms. Carroll, as opposed to a salesperson's share of the commission which was $5,070. Ms. Carroll has a civil action pending, seeking to obtain payment of the commission.
Recommendation Having found the Respondents not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Florida Real Estate Commission dismiss the Administrative Complaint against the Respondents, Jacqueline B. Ousley and Toch of Class Realty, Inc. DONE and RECOMMENDED this 3rd day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 3rd day of October, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Randy Schwartz, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32801 =================================================================
Findings Of Fact Upon the consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate salesman in the State of Florida, having been issued license number 0118115. At all times relevant to this proceeding, Respondent's license as a real estate salesman was in an inactive status. Respondent was not employed by Kenneth Ray Wagner (Wagner), Ken Wagner Realty or Computer Real Estate Sales, Inc. at any time relevant to this proceeding. At all times relevant to this proceeding, Respondent was employed by the Hernando County Board of Relators. On about July 8, 1985, Elizabeth L. Tucker (Tucker), a licensed real estate salesman in the employ of Ken Wagner Realty, with Kenneth Ray Wagner (Wagner) acting as qualifying broker, obtained a listing agreement from Horace and Sibyl Gordey (Gordeys) as owners to sell certain residential property at an asking price of $48,000.00 in cash, or terms of $5,000.00 down with balance in wrap-around mortgages. After the Gordeys listed the property for sale, Respondent made an offer to purchase the property for $44,000.00. Terms to be: $5,000.00 down, $3,000.00 of which would be in the form of a promissory note with the balance of the down payment in cash, and with Respondent assuming two (2) existing mortgages in the total sum of approximately $39,000.00, with closing to be on October 22, 1985. After receiving the Respondent's offer, the Gordeys requested that Tucker offer the subject property to Ed and Joy Kimball (Kimballs), the tenants in possession, for the purchase price of $44,000.00, consisting of $5,000.00 down plus the Kimballs assuming the payment of the existing mortgages of approximately $39,000.00. Tucker advised the Gordeys not to make this offer to the Kimballs but to make the original offer of $48,000.00 and let the Kimballs make a counteroffer. The Gordeys rejected this advice. Tucker did not make the offer as instructed by the Gordeys but, as instructed by Wagner, made the $48,000.00 offer which was rejected by the Kimballs. Upon being advised by Tucker that the Kimballs had rejected their offer (thinking that it was the $44,000.00 offer that had been rejected), the Gordeys entered into a contract for the sale of the property with the Respondent. The contract entered into between the Gordeys and the Respondent was an amended version of the Respondent's original offer. The contract was a six (6) months lease with option to purchase, providing for lease payments of $300.00 per month that were not to apply toward the purchase price. The purchase price being $44,000.00, with a $5,000.00 down payment and Respondent assuming the payment of the two (2) existing mortgages in the approximate amount of $39,000.00. The down payment was represented by two (2) promissory notes made payable to the Gordeys for the total amount of $5,000.00, due and payable on March 22, 1986, at closing. Respondent was neither involved in obtaining the listing agreement from the Gordey's nor had any knowledge of any conversations between Tucker and the Gordeys or Tucker and Wagner concerning the listing agreement or the offer to be made to the Kimballs by Tucker, prior to entering into the contract for lease and purchase of the Gordeys' property. The contract for the sale of the property did not close on March 22, 1986 as anticipated, or at any time subsequent to that date. The failure of the contract to close was due to a misunderstanding of a poorly drafted contract by both parties. The misunderstanding of the contract by the parties, Respondent's failure to timely pay rent, the return of the two (2) checks by the bank for insufficient funds given to the Gordeys by Respondent, and Respondent's refusal to vacate the premises after notice to vacate was served on December 24, 1985 by the Gordeys resulted in civil litigation being filed and a judgment being entered against Respondent to vacate the premises, and later a monetary award of $4,800.45 plus costs of $322.50 which the parties had agreed upon prior to the entry of the final judgment. The final judgment merged all claims, including both the Gordeys' and the Respondent's. Before the final judgment was entered, the Respondent had paid into the registry of the court the sum of $1,800.45 which was applied against the judgment. This final judgment has not been satisfied by the Respondent. Although Wagner visited the premises from time to time, only the Respondent and her son resided in the premises. There is no evidence that Respondent entered into the transaction with any dishonest or illicit intent, or with the desire to misrepresent any material fact to the Gordeys. There is no evidence that Respondent intended to defraud the Gordeys when she gave them the checks on insufficient funds, or when she failed to timely pay the rent. There was a legitimate disagreement under the contract.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the demeanor and candor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein as it pertains to the Respondent, Vicki Lynne Burke. Respectfully submitted and entered this 17th day of June, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5435 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as being a conclusion of law. Adopted in Finding of Fact 1 and 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5 with the exception of the date of August, 1985 which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 7 with the exception of the amount of $41,808.88 which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 7 but clarified. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7 but clarified. Adopted in Finding of Fact 8. 10.. Adopted in Finding of Fact 8 with the exception of the closing date which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 12. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 12 but clarified to show Respondent rather than Respondents. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12 but clarified to show that only Respondent, Vicki Lynne Burke refused to vacate since Wagner was not residing on the premises. 18-19. Adopted in Finding of Fact 12 but clarified. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not have a paragraph numbered 1. Adopted in Finding of Fact 1 and 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9. 7-8. Rejected as not being a Finding of Fact 9. Adopted in Finding of Fact 6 but clarified. 10-11. Adopted in Finding of Fact 8. Rejected as being immaterial and irrelevant. Rejected as not being supported by substantial competent in the record. Adopted in Finding of Fact 11 but clarified. Adopted in Finding of Fact 13. 16-19. Adopted in Finding of Fact 12. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Vicki Lynne Burke, Pro Se 9039 Selph Road Lakeland, Florida 33809 Darlene F. Keller, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
