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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. 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 19th day of May, 1982.
The Issue Whether Respondent's real estate broker's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Fred J. Will was a licensed real estate broker in the state of Florida having been issued license number 0142418, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida 32014. At all times material to this proceeding, Richard P. Pollock was a licensed real estate salesman in the state of Florida having been issued license number 0139861, c/o Fred J. Will, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida, with a last listed home address of Post Office Box 2085, Flagler Beach, Florida 32036. Either in late December 1987 or early January 1988, Pollock approached Will with the idea of opening a real estate office using Will's real estate broker's license wherein Pollock would run the office since Will was currently employed managing the self storage facility of Regency Health Care Centers, Inc. In late January 1988, Will filed a Request For License or Change of Status Form using license number 0142418 wherein he advised the Petitioner that he would be operating under Will Realty located at 326 1/2 South Beach Street, Daytona Beach, Florida. Upon opening the offices at 326 1/2 South Beach Street, Will opened an operating or business bank account and an escrow bank account for the Will Realty at the Commercial National Bank (Commercial) Only Will was authorized to write checks on the excrow account. There was insufficient evidence to show whether any funds were ever deposited in the business or escrow account at Commercial. Once the office and bank accounts were opened, Will left the daily operation of the office to Pollock and was at the office only a couple of times between the time it was opened in late January 1988 and when it was closed around April 23, 1988. The "agreement", as such, between Will and Pollock was a 50/50 "split" once the business "got going". Will did not receive any compensation from Pollock for the "use of his license". Will did not receive any money from Pollock in regard to Will Realty, personally or for deposit in either bank account at Commercial. The "agreement" was that Will would allow Pollock to "work under" his real estate broker's license. Will did not have any knowledge of the advertising being used by Pollock for Will Realty such as newspaper ads or business cards until just before the office closed in April 1988. Will did not have any knowledge of the forms being used by Pollock for Will Realty such as contracts or agreements for advance fee arrangements or receipts evidencing payment of such fee until just before the office closed in April 1988. Additionally, Will did not have any knowledge of the advance fee arrangement which Pollock may have had with prospective tenants as payment for securing rentals until just before the office closed in April 1988. Will did not have any knowledge of Pollock opening the bank accounts at Coast Federal Savings and Loan Association (Coast) in the name of Will Realty until just before the office closed in April 1988. None of the funds received by Pollock from prospective tenants while with Will Realty were deposited in the accounts at Commercial. Nor did any of the funds collected by Pollock from prospective tenants while he was with Will Realty go to Will personally. During the latter part of March 1988, Donna Elliott approached Pollock through Will Realty for the purpose of finding a home to rent. Pollock arranged for Edward R. Brown to show Elliott a home he had for rent. Elliott eventually rented this home and gave Pollock a check in the amount of $100.00 dated March 26, 1988 as a deposit on the home. On March 31, 1988 Elliott mailed Pollock another check in the amount of $1,000.00 as rent for the Brown home. The funds from these two checks were deposited in the account at Coast. Brown experienced some difficulty in getting Pollock to pay the deposit and rent collected from Elliott. However, once Will became aware of the situation he demanded that Pollock pay over the deposit and rent and, as a result of Will's effort Brown received $575.00 from Pollock. After paying Brown the $575.00 Pollock disappeared and Brown demanded the balance from Will since Pollock was working under Will's real estate broker's license. At first, Will agreed but later on advice of counsel declined to pay on the basis that it was not his responsibility. Brown filed suit and was awarded a judgment for the balance which Will paid. Around the middle of April 1988 Diane Smith approached Pollock for the purposes of renting a home. Smith paid Pollock an advance fee of $75.00 for service to be rendered by Pollock in securing her a rental home. However, before Pollock found a rental home for Smith he disappeared without returning Smith's fee. Within a short period after Smith paid the advance fee she went to the office of Will Realty only to find it closed and Pollock gone. There was no evidence that Smith made a demand on Will for the return of the advance fee paid to Pollock. After Will became aware of the situation he called Petitioner's Orlando office and was informed by Judy Smith that he should close the office immediately. Will followed this advice and closed the office sometime around April 23, 1988. As soon as Will began to receive complaints from Pollock's clients he got involved with Pollock and attempted to correct the problems but Pollock disappeared before Will could correct the situation. There was insufficient evidence to show that while Pollock was at Will Realty, any of his prospective tenants, other than Smith, specifically Catherine Vick, failed to receive reimbursement for any advance fee paid to Pollock where rentals were not obtained for the prospective tenant. Will was not directly involved with any of the transactions between Pollock and the prospective tenants and did not have any knowledge of these transactions until shortly before Pollock disappeared and Will Realty was closed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Fred J. Will guilty of violating Section 475.25(1) (d) and (e), Florida Statutes, and for such violation impose an administrative fine of $500.00 and issue a reprimand. In recommending the reprimand I have taken into consideration the harshness of a suspension or revocation and feel that under the circumstances of this case that a reprimand and a fine is more appropriate. See: Webb v. Florida Real Estate Commission, 351 So.2d 71 (2 DCA Fla. 1977). It is further RECOMMENDED that Counts VI, IX and XIV of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 22nd day of February, 1990. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert W. Elton, Esquire 648 S. Ridgewood Avenue Daytona Beach, Florida 32014 Fred J. Will 2281 Carmen Daytona Beach, Florida 32119
The Issue Whether Petitioner's application for a real estate salesman's license should be approved.
Findings Of Fact Petitioner is Victor Kevin Koellner. By application, he sought licensure as a real estate salesman. Petitioner was a unsuccessful candidate for the December 1988 real estate salesman's licensure examination. Petitioner received a score of 74. A score of 75 is required for licensure. Each correct answer has a grade value of one (1) point. Candidates are instructed to choose the most correct answer from among the multiple choice answers given. Petitioner challenges the answers selected by the Florida Real Estate Commission as correct as to questions numbered 15 and 52, on the test administered on December 5, 1988. Question 15 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1. The commission holds that the correct answer to question 15 is D. (Do any of the above). The Petitioner alleges that the better answer is A. (Request an Escrow disbursement order from the Florida Real Estate Commission). Section 475.25(1)(d), Florida Statutes, supports the Respondent's conclusion. Seventy-three (73%) percent of the candidates taking the examination on December 5, 1988 answered the question correctly. Question 52 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1 (page 2). The commission holds that the correct answer is C. (Pay it at the closing). The Petitioner alleges that the correct answer is D. (Not pay it). The question asked what should the seller do concerning the sales commission at the closing. Based on the facts given in the Florida Real Estate Handbook, 1987 Edition, page 272, the seller would have no option but to pay the commission at closing. Sixty and 3/10 (60.3%) percent of the candidates taking the examination on December 5, 1988 answered question 52 correctly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of September, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Respondent's Proposed Findings: 1-8. Adopted in substance. Petitioner's Proposed Findings: Paragraphs 1,2,3,4,5 (in substance), 7, and 10 are accepted. Paragraphs 6,8 and 9 are rejected as not relevant. COPIES FURNISHED: Victor Kevin Koellner, pro se 1385 Taurus Court, Merritt Island, Florida 32953 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Did the Respondent, Howard Klahr, fail to deliver or communicate appraisals of properties located at 5821 Southwest 20th Street, Miami, Florida and 2761-63 Southwest 31 Place, Miami, Florida 33133? Did Respondent, Howard Klahr, commit or make fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in his business relationship with Jane Asorey. What is the proper discipline, if any, to be imposed on Respondent, Howard Klahr (Mr. Klahr)?
Findings Of Fact Respondent, Howard Klahr, is a Florida state certified general real estate appraiser trading as Easthill Valuation and Consulting. He holds license number RZ-2678 and has since August 2003. On January 7, 2007, Jane Asorey, now Jane Zuleta, met with Mr. Klahr and engaged him to provide appraisal evaluations of two properties and to provide expert witness and consulting services for Ms. Asorey’s dissolution of marriage case. One property was the marital home, a single family residence located at 5821 Southwest 20th Street, Miami, Florida. The other property was a duplex located at 2761-2763 Southwest 31st Place, Miami, Florida. The duplex appraisal evaluation was to be “retrospective” and evaluate the worth of the duplex in 1991, 1999, and 2005. The appraisal evaluation of the single family residence was to be for the value in 2005. The evaluations were also to include a review of appraisals prepared by others. Ms. Asorey paid Mr. Klahr a retainer of $1,000.00 for the appraisal evaluation and services on November 7, 2007, including a $500.00 charge for the appraisal evaluation. Ms. Asorey made the check out to Mr. Klahr’s company, Easthill Valuation and Consulting. Mr. Klahr accepted the payment and cashed Ms. Asorey’s check. In a November 5, 2007, e-mail, Ms. Asorey provided Mr. Klahr the telephone number and e-mail address for her attorney. That November 5, 2007, e-mail explained that the work was for dissolution of marriage trial scheduled for December 14, 2007. Mr. Klahr and Ms. Asorey did not enter into a written engagement agreement. Despite repeated efforts by Ms. Asorey to obtain the evaluations, Mr. Klahr never provided her or her attorney the appraisal evaluation he agreed to provide and for which he had been paid. Mr. Klahr attended the deposition of an appraiser in the legal proceeding. Ms. Asorey paid him an additional $750.00 for that service. Ms. Asorey spoke to Mr. Klahr on December 20, 2007, and reminded him of the need for his report and a December 28, 2007, deadline for filing the evaluation in her case. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey missed exhibit deadlines in her case and had to continue the trial. On January 2, 2008, Ms. Asorey sent Mr. Klahr an e- mail importuning him to call her, advising him of her repeated efforts to reach him by telephone since December 20, 2007, and emphasizing the urgent need for the report which was overdue. There is no evidence that Mr. Klahr responded to that e-mail. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey had to engage and pay another appraiser to provide the evaluations. On July 26, 2008, the Department advised Mr. Klahr of its investigation and provided him a copy of the complaint. The complaint specified that Mr. Klahr had not provided the appraisal reports and described Ms. Asorey’s efforts to communicate with him. Bernardo Yepes, the Department Investigator, spoke to Mr. Klahr October 15, 2008. Mr. Klahr stated that he had sent the DBPR documents responding to the complaint. Mr. Yepes advised Mr. Klahr that the Department had not received the documents. He asked Mr. Klahr to send them by facsimile transmission. Mr. Klahr did not send the responsive documents to the DBPR by facsimile transmission or any other means. The first time that Mr. Klahr provided any person copies of the appraisal reports that he maintains he prepared was on December 15, 2009; that was the night before the final hearing when Mr. Klahr submitted them to the Clerk of the Division of Administrative Hearings and to the DBPR attorney. Mr. Klahr held a real estate license in 2002 and 2003. He was disciplined for violations of real estate licensing laws in 2002 or 2003. Mr. Klahr had a previous complaint, similar to the complaint in this matter, filed against him. It was dismissed after an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Business and Professional Regulation, Division of Real Estate enter a final order that: Dismisses Count III; Finds that Mr. Klahr violated 475.624(2), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Finds that Mr. Klahr violated Section 475.624 (16), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Makes the terms of probation and periods of suspension concurrent with the probation beginning after the period of suspension concludes; and Requires Mr. Klahr to pay Jane Zuleta $1,000.00 within 30 days of the date of the final order. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2010.
Findings Of Fact At all material times, the Respondent Tremone Rudman was an active real estate salesman having been issued license number, 0201202. The Respondent Rudman was employed by Fantastic Properties, Inc., as a salesman from February 6, 1979 until September 6, 1979. The broker and owner of Fantastic Properties, Inc., from February 6, 1979 through September 6, 1979, was Elaine Mueller. In July 1979, the Respondent Rudman negotiated a contract between Barbara Medema, seller, and Eugene and LaLita Mascarenhas, buyers, for two separate parcels of property described as Lot 14, Block Y, Coral Springs Subdivision Number 1 (parcel number 1) and Lot 13, Block Y, Coral Springs Subdivision Number 1 (parcel number 2). The transaction involving the properties was scheduled to close on November 12, 1979, at Taylor Title and Abstract in Sunrise, Florida. At the time of the closing, the Respondent Rudman and Elaine Mueller had terminated their business relationship due to personal differences. The Respondent was concerned that he would not receive his share of the Mascarenhas commission because of difficulties he was having collecting his share of other commissions from Mueller. In response to his actual or perceived difficulties in obtaining pending commissions, the Respondent Rudman made demands upon Mueller, his broker, and Pat Taylor, the title agent handling the closing, to disburse the Respondent's portion of the Mascarenhas commission directly to him rather than through the broker at closing. The closing, which occurred on November 12, 1979, was difficult and lasted long into the afternoon. During the course of the closing the Respondent placed calls to Taylor Title Company to ascertain when he could pick up his commission check. Elaine Mueller indicated to Taylor that the proper procedure should be that the check would be made payable to Fantastic Properties, Inc., as the broker, and that Fantastic Properties would then write a check to the Respondent, as the salesman. The procedure suggested to Taylor was not acceptable to the Respondent due to his belief that Mueller might delay his check. The Respondent contacted his attorney, David Hoines, and instructed him to demand that the commission check be issued directly to the Respondent. On November 12, 1979, at approximately 5:30 p.m., Hoines called Taylor Title Company, and in conversation with Mueller and Taylor, demanded that the commission check in question be paid directly to the Respondent per his client's request. Both Mueller and Taylor expressed apprehension concerning such a procedure and advised Hoines that in their opinion, they could not legally issue a commission check directly to the Respondent, a salesman. Hoines reiterated his demand on behalf of his client and threatened to institute legal proceedings which could stop the closing and/or create problems for both the buyer and the seller. Hoines indicated to Taylor that he had the means at his disposal to bring the closing to a halt if the commission check was not distributed to his client as he demanded. When Taylor inquired concerning what those means were, Hoines refused to elaborate. Hoines acknowledged that he had specifically made reference to a declaratory judgment action and in that sense, threatened legal action. He also stated that he ignored the statements made to him by Mueller and Taylor that the procedure he demanded that they follow was illegal. As a consequence of the actions taken by the Respondent Rudman and his attorney at his initiation, Mueller was placed in an untenable position. On one hand, Mueller was threatened with legal action if she did not pay the commission to the Respondent and on the other, she knew that if the closing did not take place that day, it would probably never occur since the outstanding mortgages on the two parcels were months in arrears. Mueller's problems with the mortgages on the property were also known to the Respondent when he and his attorney demanded the commission check. Mueller objected to issuing a check to the Respondent but was concerned that withholding the check could result in stopping the closing as a result of the threatened legal proceedings. Under such circumstances, Mueller did not voluntarily consent to the issuance of the check to the Respondent. As characterized by counsel for Petitioner, Mueller "acquiesced" rather than risk the possibility that the Respondent or his attorney would initiate action which could have affected the sale. Thus, the "consent" given by Mueller was under protest, the result of coercion and was not free and voluntary. As a result of Respondent's demands, Pat Taylor contacted her attorney, Mr. Finn, who instructed her to type the document dated November 13, 1979, Petitioner's Exhibit 10. Mueller did not see this document nor did she assist in its preparation. On November 13, 1979, Taylor presented the document, together with a check for the Respondent's share of the commission to Respondent at his office. The Respondent accepted the check which was made payable to "Tremone Rudman". The Respondent then signed the document and added, "I do not agree to the foregoing." The Respondent subsequently negotiated the check. The Respondent Rudman acknowledged that he was not collecting on behalf of the broker with whom he was employed when he received this commission, nor did he collect the funds on behalf of Fantastic Properties, Inc., for whom he was no longer employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order finding the Respondent Rudman guilty of violating Sections 475.25(1)(b) and 475.42(1)(b) and (d), Florida Statutes (1979), and suspending his real estate salesman's license for ninety (90) days. DONE and ORDERED this 2nd day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of March, 1983. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Richard H. Adams, Jr., Esquire Carlos B. Stafford, Executive PLEUS ADAMS FASSETT & DIVINE Director 220 North Palmetto Avenue Florida Real Estate Commission Post Office Box 2747 Post Office Box 1900 Orlando, Florida 32802 Orlando, Florida 32802 William M. Furlow, Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation - Legal Section Regulation 400 West Robinson Street 130 North Monroe Street Orlando, Florida 32801 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 0000925 DOAH NO. 81-2152 TREMONE RUDMAN, Respondent. /
