The Issue The issue to be determined in this proceeding is whether Respondent violated section 475.125(1)(b), Florida Statutes (2008), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of real estate professionals pursuant to section 20.125 and chapters 455 and 475, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was a real estate associate licensed with All Pro Realty Co., Volusia County, Inc., d/b/a RE/MAX All Pro Realty, a real estate corporation (All Pro). Respondent's license number is 3051505. Respondent's broker at All Pro was Robert Millward. Respondent was the listing agent for a property located at 3301 Tropical Terrace, Deland, Florida (the Tropical Terrace property). Respondent specialized in handling the sale of foreclosure properties. The Tropical Terrace property was a foreclosure property, and was owned by Premier Asset Services (Premier). Sales for bank-owned properties such as the Tropical Terrace property that Respondent handled were different from most real estate transactions. For example, offers were communicated to Respondent, whether verbally with written follow-up, by fax or e-mail, or by a conventional real estate sales contract. If no offer was currently pending for a piece of property, the data related to the offer would be entered into a dedicated electronic communication system, referred to as the portal, for consideration by the seller. If the property was already under contract, the listing agent could not communicate any further offers on the property. It was not unusual for the potential buyer to receive no response if this was the case. If there were no pending offers on a property, the Seller, through use of the portal, would accept the offer, provide a counter-offer, or send the offer back for a "highest and best" offer. However, all transactions generated a generic counter-offer form with the final terms, even if the original offer was accepted. Any counter-offer would be sent to the buyer's agent for approval. If acceptable, the counter-offer would be initialed, and returned for submission to Premier. The documents required for submission were the FLA/BAR form, the counter-offer, an escrow check and a pre-qualification letter for financing purposes. Premier would not sign off on the purchase until the complete package was submitted. Once the complete package was reviewed, the asset manager for Premier would sign the contract and the entire packet would be returned to the seller's agent, either by fax or through the portal. Anthony Conklin wanted to purchase the Tropical Terrace property for investment purposes. He submitted an offer, through his realtor, Debbie Artzner, for $100,000, which was below the listed price for the property. Neither he nor his agent received any response to this offer. On March 11, 2009, Conklin signed another offer on the property for $105,000. Ms. Artzner faxed him the forms to sign and he faxed them back to her to submit to Respondent. Anthony Conklin did not sign the forms in her presence. There is some dispute as to whether the offer was actually forwarded to Respondent on March 11: Ms. Artzner says that she sent it by email but did not confirm that Respondent had received it. Ms. Artzner also stated that she would not have submitted an offer if there was an existing offer on the property. Respondent insists that there was in fact an existing offer on March 11 and denies receiving the Conklin offer. There is also no certainty that the exhibit identified as the March 11, 2009, offer and admitted as Petitioner's 2 is, in its entirety, the document that was actually signed by Mr. Conklin on that date. For example, the first page of the contract lists a price of $105,000, and has a deadline for acceptance of March 26, 2009. Pages one, four and five of the exhibit have no fax header on the bottom or top of the document, while pages two and three have two or three fax headers dated March 11, 2009, at the bottom of the document. The signature page, dated March 11, 2009, is page three. What remains unclear is whether the offer forwarded to Respondent for input in the portal resulting in a counter-offer that was accepted was the offer dated March 11, 2009, for $105,000, or was yet another offer for $108,000. In any event, on March 25, 2009, Premier issued a counter-offer for $108,000, and on March 26, 2009, the counter- offer was accepted. On March 31, 2009, Mr. Conklin wrote an escrow check for the purchase, and the documents necessary for Premier's asset manager's signature were uploaded to the portal. On April 6, 2009, the asset manager signed the contract and the entire package, including the FLA/BAR form, was returned for transmission to the Buyer, via the portal. The agreed-upon purchase price for the property was $108,000. At this point, the road to closing on the property became problematic. While Respondent claims there would have been no reason for her to not provide the entire package to the buyer's broker, Ms. Artzner claims that she did not receive it, and her testimony is credited. Multiple requests were made for a copy of the FLA/BAR form, which were not honored. When Ms. Artzner was unsuccessful in getting a copy of the form, which was needed for financing purposes, Mr. Conklin began calling Respondent directly. Respondent did not provide the form, but instead called Ms. Artzner's licensure into question. (Ms. Artzner, who testified on behalf of the Department, indicated that she has been licensed for 20 years.) No real basis for doubting her licensure was presented to justify such an accusation. This refusal to send the FLA/BAR form became a hurdle for completing the financing. After several attempts by both Mr. Conklin and Ms. Artzner, after approximately two weeks, a telephone conference call was arranged involving Mr. Conklin, Ms. Artzner, Respondent, and Andy Walker, who was assisting with the processing of Mr. Conklin's loan. According to Mr. Walker, Respondent remained unhelpful in providing documents when requested. Mr. Conklin and Respondent are like oil and water. Some evidence was presented to indicate the lack of the FLA/BAR form was not the only barrier to closing, but it certainly contributed to the delay. While Mr. Conklin should have worked through his realtor instead of calling Respondent directly, Respondent could have solved the document problem by simply forwarding a copy of the FLA/BAR form. Instead, she took the position that she had already provided it and did not need to do so again. At hearing, Respondent stated, "I don't want to sound arrogant or anything, but I really don't want to do anybody else's paperwork." Her testimony is consistent with the claims by others that she was uncooperative in getting the transaction ready to close, and it is so found. On April 30, 2009, Andy Walker received a fax that included a cover page and a copy of what purports to be the FLA/BAR contract (Petitioner's Exhibit 4). The document contains an offer price of $108,000, which while the ultimate price, is not the price Mr. Conklin claims was on the offer that was forwarded to Respondent. In addition, Mr. Conklin claims that the document contains a signature that purports to be his but is not. Mr. Conklin and the Department contend that Respondent forwarded this copy of the contract and that she knew or should have known that the signature on the document is not Mr. Conklin's. The fax sheet accompanying the document is from an establishment in Jacksonville called "The Retreat at St. Johns." The cover sheet indicates that it is addressed to "Conklin" at fax number 407-389-5111. However, there is no indication as to who sent the fax, and Respondent denies doing so. No persuasive evidence was submitted to demonstrate that Respondent was responsible for sending the fax or that she reviewed the signatures contained in the fax. While it is somewhat different from other examples of Mr. Conklin's signature in the documents, the differences are not so great that that they could not be attributed to the natural variances in a person's handwriting. Further, while the first five pages of Exhibit 4 have a fax header at the top indicating they were sent on April 30, 2009, the page with the disputed signature and the signature of the asset manager, Donna West, has no fax header. In short, no clear and convincing evidence was presented to demonstrate that Respondent was responsible for sending the fax. Further, no clear and convincing was presented to indicate that Mr. Conklin's signature contained in Petitioner's Exhibit 4 was forged or that Respondent had any involvement in crafting, reviewing, or transmitting Petitioner's Exhibit 4. Eventually, Mr. Conklin directed Ms. Artzner to prepare a new FLA/BAR contract with the agreed-upon purchase price in order to get the financing processed and approved. The transaction eventually closed and Mr. Conklin successfully purchased the property for the agreed-upon $108,000.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of May, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 25th day of May, 2011. COPIES FURNISHED: Robert J. Riggio, Esquire Law Offices of Robert J. Riggio, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114-4922 Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner, a licensed Florida real estate sales associate, violated provisions of Subsections 475.25(1)(b), 475.25(1)(d)1., 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the Department), is the state agency responsible for licensing and monitoring real estate sales associates within the state. It is charged also with the duty to prosecute administrative complaints for violations of the law by real estate sales associates. Respondent, Caroline Mohan (Ms. Mohan), is a licensed real estate sales associate who holds License No. 3087231. She was registered as a sales associate with Coral Shores Realty (Coral Shores) in Fort Lauderdale, Florida, from September 12, 2005, to March 28, 2008. At all times relevant to the charges against her, Ms. Mohan was the Coral Shores sales associate who was the listing agent for Anthony Mannarino, the seller of property located at 10530 Versailles Boulevard, Wellington, Florida (the "subject property"). At closing, Coral Shores was to have received at 2.5 percent commission and pay a portion of the commission to Ms. Mohan. Dawn Campbell and Garth Smith (the buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the subject property from Mr. Mannarino. Pursuant to the contract, the buyers were to deposit $10,000 in an escrow account in two $5,000 installments. The Contract was signed on or about March 12, 2007. The transactions took place electronically and Mr. Smith sent Ms. Mohan a photocopy of a $5,000 check that he was supposed to have deposited, under the terms of the contract, in the account of Closings Unlimited Title Company (Closings Unlimited), but he never sent the check to Closings Unlimited. The seller asked Ms. Mohan to have the buyer use a different escrow agent, Southeast Land Title (Southeast), and so the buyer wired $5,000.00 to Southeast, but the Contract was not amended to reflect the name of the new escrow agent. A $5,000 deposit was sent to Southeast by the buyers, but they never paid the $5,000 balance due on the deposit. Mr. Smith testified the he could not make the second payment because he gave $5,000 in cash to an employee to deposit in his account so that he could make a wire transfer, but the employee took the money. On April 3, 2007, Southeast faxed a notice to Coral Shores, with an attached letter to the buyers, informing them of its intention to respond to a demand (presumably by the seller) to release the $5,000 held in escrow related to the subject property. As a result of a complaint filed by Dorothy Hoyt, a representative of Southeast, the matter was investigated and an Administrative Complaint filed against Respondent. The Administrative Complaint alleges that Ms. Mohan personally received funds, fraudulently failed to account for those funds, and acted, without the proper license, as a broker by accepting the deposit. The Department's investigator testified that he was never able to determine if the escrow deposit was deposited at any bank, lending institution or with Dorothy Hoyt of Southeast Land Title of Boca Raton. He "believe[s] there was a wire for one deposit made, but [he] did not receive confirmation of that." Regarding his conversations with Ms. Hoyt, the investigator reported "she did state that . . . she had received - eventually received $5,000.00 and was still waiting [for] another $5,000.00 in order to have the full $10,000.00 deposit." In his report, the Department's investigator claimed that Respondent was terminated from employment by her Coral Shores broker, Ronald Cika, as a result of her misconduct in handling transactions related to the subject property. That claim was contradicted by Mr. Cika and by Ms. Mohan. Their testimony was supported by the contents of e-mails between his office and Respondent that show that she became inactive as a realtor while traveling overseas with an offer to reactivate with the same broker upon her return. Mr. Cika testified that he is aware of a lawsuit filed by Dawn Campbell related to a different address on the same street, 10526 Versailles Boulevard, but that he is not aware of any issues related to 10530 Versailles Boulevard, the subject property. Jannet Rodriguez, owner of Closings Unlimited, testified that she was never contacted and never opened a file to serve as either an escrow or closing agent for the subject property at 10530 Versailles Boulevard. She, too, is involved only in issues related to 10526 Versailles Boulevard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Caroline Mohan. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 12th day of June, 2009.
Findings Of Fact Robert & Gilman, Inc. at all times herein involved was registered as a real estate broker by the State of Florida. Delair A. Clark at all times herein involved was registered as a real estate salesman by the State of Florida. Residential property owned by William L. and Frances Crummett was listed with J.B. Steelman, Jr. real estate broker and put on Multiple Listing Service. On June 17, 1972, immediately after the For Sale sign was erected, Respondent, Delair A. Clark, presented an offer to the sellers on this property which was accepted by sellers on the same date presented (Exhibit 9). This contract provided the purchase price of $28,500 with a $300 earnest money deposit, the usual clauses in a form contract for sale and purchase, and two special clauses to wit: "A. Subject to: Buyer being reassigned to central Florida prior to June 22, 1972. In the event the assignment does not materialize by June 23, 1972 deposit will, be returned in full and contract will be null and void. B. Subject to: Buyer obtaining a 90 percent conventional loan for a period of 25 years or an FHA loan for 30 years." By telegram dated 6/20/72 (Exhibit 8) buyer confirmed re-assignment to Orlando, thus satisfying condition A in the contract. Buyers thereafter asked for earlier occupancy than originally called for. Since special arrangements would have to be made by sellers, Mr. Crummett asked for an amendment to the contract to increase the earnest money deposit to $1,000 of which $500 would be non-refundable if contract was not consummated. This amendment was duly executed by the buyers on July 15, 1972 and by the sellers. A copy thereof was admitted into evidence as Exhibit 11 which provides: "SPECIAL CLAUSE" "C. An additional deposit of $700 will be made on July 17, 1972, of which $500 will be non-refundable in the event the referenced contract is not consumated (sic)." This amendment was forwarded to the sellers by Respondent's Roberts & Gilman letter of July 17, 1972 which amendment was executed by the sellers upon receipt and mailed back to Roberts & Gilman. The July 17, 1972 letter was signed by Judy L. Rostatter of the sales processing department. A copy of the check received from the buyers was not enclosed although the letter stated it was enclosed. Prior to receipt of this amendment Crummett was advised by Richter, the buyer, that he had mailed a $700 check to Roberts & Gilman made payable to Crummett. Crummett was also advised by Respondent Clark that the check had been received. Since closing was scheduled to be held within a couple of days Crummett requested Clark to hold the check and he would endorse same at closing. Crummett never saw the original check for $700. On the day originally scheduled for the closing (circa July 18, 1972) Crummett received a telephone call from Respondent Clark to the effect that the appraisal on the property had come in some $3,000 below the asking price and inquiring if Crummett would accept $26,000 for his property. The latter advised he would not and, after some heated words, Crummett hung up. At this time it was evident to Respondent Clark and the sellers that the sale would not be consummated. Clark put a memo in the file dated July 28, 1972 saying: "Return checks of $700 + $300 in estrow (sic) to Richter. Seller advised we had no contract." A few weeks later, on August 3, 1972, after making several phone calls to Roberts & Gilman without success, Crummett had the listing broker, J.B. Steelman, write a letter (Exhibit 7) to Gilman making demand for the $500 deposit refund. By letter dated August 11, 1972 (Exhibit 6) Roberts and Gilman replied that they considered the contract had been terminated by the seller and saw no "justification by the seller to claim any escrow that has been returned to the buyer". This letter was signed "Dan T. Gilman /b.c." Several months later, in the spring of 1973, Crummett went to the office of Roberts and Gilman and obtained a photostatic copy of the check dated 7/15/72 that had been made by J.A. Richter in the amount of $700. This was admitted into evidence as Exhibit 12. At the hearing Dan G. Gilman, President of Roberts & Gilman, Inc. denied any recollection of any part of this transaction or ever having heard of the incident prior to the investigator from the FREC coming to inquire about the incident. At the time of this transaction the realtor's office was very busy with several branch offices and some 120 salesmen handling transactions in eight or ten counties in central Florida. He has no recollection of dictating Exhibit 12 or anything about the incident but his secretary at that time was Beverly Cass. It was standard practice for a broker to review every contract before trust account money was disbursed or refunded. His initial testimony that numerous people in the office had authority to sign his name to letters going out of the office was recanted when he was recalled as a witness after the close of the Commission's case. He then stated he never authorized anyone to sign his name to a document having legal implication. Clark testified that the first time he ever saw Exhibit 11, the amendment to the contract, was when shown to him by the investigator for the FREC. Likewise he claims never to have seen or received the $700 check signed by Richter. With respect to the return of the deposit to Richter, (after being shown Exhibit 13) his recollection of the cancellation of the contract was that Richter was not re-assigned to the Orlando area. This was the only contract ever handled by Clark which involved the return of an escrow deposit. He has no recollection of talking to any member of the realty firm regarding clearing the return of the escrow deposit to Richter. Exhibit 5 is a photocopy of the check by which the $300 earnest money deposit was returned to Richter. It is obvious that the contract for the sale of the residential property herein involved was amended to provide for an additional deposit from the buyers and a clause which required the buyer to forfeit one half of his deposit in the event the transaction was not consummated. It is incomprehensible that such an amendment to the contract could be made without the knowledge of the salesman or the broker. It therefore appears that the Defendants either: (1) are not telling the truth; (2) have faulty memories; (3) allowed the duties normally performed by brokers to be carried out by secretaries; or (4) operated a realty company in a slipshod manner without due regard to the duties and responsibilities imposed upon brokers and salesman by the real estate license law.
The Issue At issue is whether Respondent committed the violations set forth in the Administrative Complaint dated October 17, 2002, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for the regulation and discipline of real estate licensees in Florida pursuant to Section 20.125, Florida Statutes (2000). At all times material to this case, Respondent is a licensed real estate broker and holds license number 0349967. In the summer of 2001, Jose Diaz (Diaz) met Saldana at a seminar. The seminar was aimed at persons seeking to participate in federally financed programs designed to assist them in financing home purchases. At the seminar, Diaz was referred to Saldana and described as a person who could assist Diaz in finding a home which could be financed with government funds. Diaz sought Saldana's help in good faith, but Saldana abused Diaz' trust and took advantage of his lack of sophistication in the field of real estate. Specifically, Saldana told Diaz that in order to be eligible for a government financed loan, it would be necessary to pay off certain of Diaz' debts. Saldana instructed Diaz to provide him with blank money orders and represented to Diaz that the money orders would be used by Saldana to pay off the debts so as to facilitate Diaz' receiving a government loan. Saldana failed to deposit the funds with his broker or in an escrow account, and failed to use them for the purposes for which they were intended, that is, to pay off Diaz' debts in order to satisfy government requirements for loaning Diaz funds toward a home purchase. Instead, Saldana converted the funds to his own use. Diaz sued Saldana for civil theft in Palm Beach County Court. On June 19, 2002, a final judgment was entered in Diaz' favor for the full amount of the funds converted, plus interest. As of the date of the final hearing, Saldana had failed to satisfy Diaz' judgment, and had no plans to do so. In early 2001, Rafael Alcocer (Alcocer) met Saldana in a social club and asked him to assist him and his wife in purchasing a home. Saldana agreed, but did little on Alcocer's behalf. Eventually, Alcocer found a home he liked and asked Saldana to present an offer to the homeowner, Diane Dorish (Dorish). Dorish accepted the offer, which included a $500 deposit. However, Saldana falsely told Alcocer that Dorish required a $2,500 deposit, and obtained funds in that amount which Alcocer thought would be used for a deposit required by the homeowner. In fact, Saldana converted those funds to his personal use, although Alcocer was eventually able to recoup $1,500. In addition, Saldana forged Alcocer's signature on a contract which provided for additional terms which had not been authorized by either Alcocer or Dorish. The Division also charged Saldana with collecting a $320 mortgage application fee, plus a $1,000 earnest money deposit from a third client. The Administrative Complaint alleges that Saldana failed to deposit these funds into a trust or escrow account, but instead converted the funds to his own use. However, no evidence was presented in connection with this transaction, and it has not been considered in the disposition of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order revoking Respondent’s real estate license. DONE AND ENTERED this 24th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2003. COPIES FURNISHED: Lorenzo Level, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1900 Enrique Saldana 7560 Gilmour Court Lake Worth, Florida 33467 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether respondents' licenses as real estate brokers and salespersons should be disciplined for alleged misrepresentation, fraud, breach of trust, culpable negligence, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, violation of a duty imposed by statute and contract, and aiding and conspiring with other persons engaged in misconduct-- all in violation of Section 475.25(1)(b), Florida Statutes (1981).
Findings Of Fact On March 25, 1981, Elaine P. Stein, a licensed real estate salesperson, showed Mordechai and Nuti Antebi a house for sale at 1704 North 44th Avenue, Hollywood, Florida. The house was owned by Wayne L. and Gladys E. Hunter and listed with Murray Realty. The listing broker for Murray Realty was Warren Stein, and the salesperson directly involved in the listing was Alex Olson. Elaine Stein was a salesperson in the Emerald Hills office of Chinelly Real Estate, Inc.; the manager for that office was Frederick A. Lewis, a licensed real estate salesperson. (Testimony of Stein, Antebi, Olson, Lewis.) The Antebis, who were in the process of selling their present Pembroke Pines house through the Hollywood Hills office of Chinelly Real Estate, Inc., liked the house and expressed a desire to purchase it. They were told that if they assumed the existing mortgage on the Hunters' house, the interest rate would escalate on the day of closing. (Testimony of Olson, Stein.) The Antebis and Ms. Stein then returned to the Emerald Hills office where a written offer was prepared by Ms. Stein, Vilma Sardiello--a licensed real estate salesperson who frequently worked with her--and Alex Olson, the listing Murray Realty salesperson. Ms. Antebi told Ms. Stein and Ms. Sardiello that she had only $500 to place as an earnest money deposit. The purchase price was $106,000. Ms. Stein then spoke with Mr. Lewis, who advised her that the problem could be handled by executing an assignment of funds. Such an assignment would allow proceeds from the scheduled sale of the Antebis' Pembroke Pines house to be used in the Hunter-Antebi transaction. Ms. Stein, who was unfamiliar with assignments, then procured a written assignment of funds from Ms. Antebi for the sum of $19,500 and prepared a written offer. Ms. Antebi signed the offer and provided a $500 earnest money deposit. (Testimony of Stein, Olson, Sardiello, Antebi; P-1, R-1.) Immediately thereafter, Alex Olson, Murray Realty's listing agent, telephoned the offer to the Hunters in Ocala, Florida. He informed them that the Antebis were offering to purchase their house for $106,000, consisting of a $20,00 deposit, $15,000 at closing, and assumption of the current mortgage of approximately $43,000 at the prevailing interest rate. In addition, the Hunters were to take back a $28,000 purchase money mortgage at 12 percent for five years, with only interest payable monthly (He did not inform them that $19,500 of the $20,000 deposit was in the form of, an assignment of funds from the sale of the Antebis' Pembroke Pines house. He was unaware of the assignment, which Ms. Stein had inadvertently failed to disclose in the written offer.). The Hunters telegraphed their acceptance of the offer pursuant to Mr. Olson's instructions. (Testimony of Olson, W. Hunter, G. Hunter, Antebi, Stein; P-1, P- 4.) After receiving the Hunters' telegram, Ms. Stein realized that the phrase, "assignment of funds," had been mistakenly omitted from the written offer. She alerted Mr. Lewis, who, in turn, contacted Mr. Olson on March 26, 1981, and advised him that $19,500 of the deposit would come from an assignment of the proceeds from the sale of Antebis' Pembroke Pines house. Mr. Olson responded that he would not transmit another offer to the Hunters without a written letter from Chinelly Real Estate, Inc., verifying the amount of deposit held in escrow on the Hunter-Antebi transaction. (Testimony of Olson, Lewis, Stein.) Consequently, on March 26, 1981, Mr. Lewis telephoned Ann Shetter, bookkeeper and accounts supervisor at Chinelly Real Estate, Inc.`s main office. He asked her for the amount of money on deposit in the escrow account for the Antebi transaction. She replied that there was $8,000 held in escrow on the Antebi transaction; but she failed to indicate whether she was referring to the Hunter-Antebi transaction or the Antebi sale of their Pembroke Pine house which was being handled by another Chinelly Real Estate, Inc., office at that time. Mr. Lewis reasonably (although mistakenly) assumed that she was referring to the Hunter-Antebi transaction, the only Antebi transaction being handled by his office (He was unaware that the Antebis' Pembroke Pines house was being sold by another office of Chinelly Real Estate, Inc.). Instead, Ms. Shetter was referring to $8,000, which was being held in escrow, on the Antebis' sale of their Pembroke Pines house. (Testimony of Lewis, Shetter.) Mr. Lewis then in response to Mr. Olson's request, signed and delivered an escrow letter to Mr. Olson on March 26, 1981, verifying that Chinelly Real Estate, Inc., was holding $8,000 in escrow on the Hunter-Antebi transaction. (Testimony of Lewis; P-6.) Mr. Olson then telephoned the Hunters in Ocala on March 26, 1981, and told them that the deposit would be $8,000 instead of $20,000, and that $27,000 would be paid at closing instead of the agreed upon $15,000 (These changes did not affect the total purchase price.). He also told them that be felt an $8,000 deposit would be sufficient. The Hunters agreed to the changes and at Mr. Olson's request, sent a confirming telegram to the Emerald Hills office of Chinelly Real Estate, Inc. (Testimony of Olson, Hunter, Stein; P-5.) Shortly thereafter, Mr. Olson picked up the revised contract which had been prepared by Ms. Stein and signed by the Antebis; without reading it, he sent it to the Hunters for execution. This contract, fully executed by buyers and sellers, provided for a purchase price of $106,000, an initial $500 deposit, an additional deposit paid to Chinelly Real Estate, Inc.`s trust account on or before March 26, 1981, in the amount of $7,500, an assumption by buyers of an existing first mortgage held by American Savings and Loan at prevailing interest rate in the principle amount of $43,000, a $28,000 purchase money mortgage bearing interest at 12 percent for five years, interest only, payable monthly, balloon in five years, and approximately $27,000 due at closing, including $12,000 provided by assignment of funds from the sale of the Antebis' current house. (Testimony of Stein, Olson, W. Hunter, G. Hunter; P-2.) On April 9, 1981, Nancy Gooch, vice-president in charge of processing transactions for Chinelly Real Estate, Inc., discovered the discrepancy in the Hunter-Antebi transaction, that the contract indicated that $8,000 would be deposited in the firm's escrow account while, in fact, only $500 had been deposited. She alerted her boss, John Chinelly, Jr., a licensed real estate broker, who, upon further investigation, found the Lewis letter which mistakenly represented that $8,000 was held in escrow on the Hunter-Antebi transaction. (Testimony of Chinelly; P-9.) Mr. Chinelly, who was about to depart on a four-day religious retreat, called in Reginald D. Lucas, general sales manager and a licensed real estate broker, and instructed him to find out the facts surrounding the discrepancy and solve the problem. On April 9-10, 1981, Mr. Lucas called Mr. Lewis and obtained his explanation of the escrow discrepancy; after discussing alternative courses of action, Mr. Lucas told him to meet with Ms. Stein and Ms. Sardiello and decide how they would solve the problem. Various options discussed included: (1) canceling the transaction, (2) persuading the Antebis to place an additional $7,500 into escrow, and (3) depositing the personal funds of Mr. Lewis, Ms. Stein, and Ms. Sardiello to cover the escrow shortage. On Friday, April 10, 1981, and during the ensuing weekend, they discussed among themselves possible penalties, such as loss of their jobs and licenses, and what course of action would be ethical and proper. After Ms. Stein failed to persuade Ms. Antebi to place an additional $7,500 into escrow, the three real estate salespersons--Mr. Lewis, Ms. Stein, and Ms. Sardiello--reluctantly agreed to each loan the Antebis $2,500 to make up for the Hunter-Antebi escrow shortage (They obtained a promissory note dated April 10, 1981, from the Antebis requiring repayment when the Pembroke Pines house was sold.). (Testimony of Lucas, Stein, Lewis; R-5.) Mr. Lewis, Ms. Stein, and Ms. Sardiello acted on their belief that Murray Realty and the Hunters had been told of the escrow discrepancy and consented to their loaning money to the Antebis to make up for the difference. Mr. Lucas led them to believe that such was the case. Between April 10 and 13, 1981, he had telephoned Mr. Olson to tell him about the escrow shortage. Because Mr. Olson was out of town, he spoke with Warren Stein (unrelated to Elaine Stein), the listing broker for Murray Realty. He and Mr. Stein agreed that they should promptly notify the Hunters of the situation. (Testimony of Lewis, Stein, Sardiello, Lucas.) Shortly thereafter, on April 13, 1981, Mr. Lucas went to Mr. Stein's Murray Realty office for the purpose of jointly notifying the Hunters. In the ensuing telephone call, the Hunters were told of a problem with the escrow account, that the three sales persons--Ms. Stein, Ms. Sardiello, and Mr. Lewis- -had agreed to make up for the shortage by depositing $7,500 of their own money into escrow, and that the closing would be unaffected. The Hunters knew of and consented to the three salespersons contributing $7,500 into escrow (There is conflicting testimony on whether the Hunters were told of this $7,500 contribution. The Hunters deny it while Mr. Lucas insists they were told of and consented to the arrangement. Mr. Lucas's testimony on this question is accepted as persuasive. The Hunters' testimony conflicts with the statements contained in their complaint filed with the Department.). (Testimony of Lucas; R-7.) When Mr. Olson returned to Murray Realty on April 14, 1981, and learned of the events which had transpired in his absence, he requested written verification from John C. Chinelly, Jr., that the three real estate salespersons had placed the $7,500 in escrow. Mr. Chinelly verified that the money had been placed into escrow and wrote a letter to Murray Realty confirming that fact. At that time, Mr. Chinelly--based on his conversations with Mr. Lucas and Mr. Stein--also believed that the Hunters had consented to the salespersons depositing the additional $7,500 into escrow. (Testimony of Chinelly, Olson, Lucas; P-7.) Closing of the Hunter-Antebi transaction was scheduled for April 28, 1981. At closing, the Antebis complained about the condition of the roof, pool, and air conditioner. The Antebis also did not have sufficient funds to close the transaction. The transaction failed to close. (Testimony of Stein, Antebis, Olson.) Subsequently, the Antebis closed on the scheduled sale of their Pembroke Pines house. As a condition to this closing, $7,500 was placed into escrow pending a court decision on a complaint for interpleader filed in Broward County Circuit Court by Chinelly Real Estate, Inc., concerning the Hunter-Antebi transaction. At all times material to the proceeding, respondents John C. Chinelly, Sr., Richard M. Chinelly, Paul James Fleck, Nancy J. Gooch, Mary E. Hulsey, James A. Chinelly, John C. Chinelly, Jr., Shana Munden, Joseph Tresser, Reginald D. Lucas, Harold E. Whitter, Asa F. Brand, Josephine B. Shanefelt, Brett A. Slabe, William F. Kuemerle, Jr., and Marshall Feinsilber were the qualifying brokers for Chinelly Real Estate, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED: That the two administrative complaints and all charges against respondents be dismissed, with prejudice. DONE AND RECOMMENDED this 14th day of June, 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 14th day of June, 1982. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36 Court Miami, Florida 33135 Howard Todd Jaffe, Esquire 1915 Harrison Street Hollywood, Florida 33020 Rodger L. Spink, Esquire 6600 Taft Street, Suite 404 Hollywood, Florida 33024 Michael J. Garavaglia, Esquire 3111 Cardinal Drive Vero Beach, Florida 32960 Vilma Sardiello 5207 Hayes Street Hollywood, Florida 33020 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue posed for decision herein is whether or not the Respondent failed to account for or deliver commission monies due to a sales associate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, Real Estate Merchandisers, Inc., was a licensed real estate corporate broker (License No. 0056693) with its principal business office located at 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida. During July, 1980, Respondent entered into an employment agreement with salesperson Patricia Rathgeb whereby Ms. Rathgeb would, while acting in her capacity as a real estate salesperson, receive a sixty-five percent (65%) share of commission fees paid when Ms. Rathgeb was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit No. 1). On August 27, 1980, Ms. Rathgeb discussed, negotiated and obtained a contract for purchase whereby Gil Mansito, or his assigns, agreed to purchase from Hurt Enterprises, a California corporation, a four-bedroom residence situated at 11500 Northwest Sixth Street, Plantation Acres, Broward County, Florida. (Petitioner's Exhibit No. 2). The transaction closed on November 19, 1980, with Respondent receiving a commission fee of $8,400.00 for said transaction. Pursuant to the employment agreement entered between the parties (Ms. Rathgeb and Respondent), Ms. Rathgeb demanded her pro-rata share of the commission fee or $5,460.00 based on a sixty-five percent (65%) split of the $8, 400.00 commission received by Respondent. Ms. Rathgeb has demanded and Respondent refuses to account for or otherwise deliver to Ms. Rathgeb any portion of the commission received from the Mansito transaction. On September 29, 1980, while acting in her capacity as salesperson with Respondent, Ms. Rathgeb negotiated and obtained two contracts whereby Bruce W. Hoch agreed to purchase from Evelyn B. Springer two vacant lots located at 11500 Northwest 27th Street, Plantation Acres, Broward County, Florida. On December 1, 1980, the transactions closed and Respondent received commission fees totaling $1,600.00 based on Ms. Rathgeb's efforts. Ms. Rathgeb demanded $1,040.00 as her portion of the commission received by Respondent. Respondent, through the person of its qualifying broker, George May, refuses to remit, deliver or otherwise account to Ms. Rathgeb for its failure to deliver or account for the commission monies demanded. Respondent's defense. The Respondent defended, through broker, George May, its failure to account for or deliver to Ms. Rathgeb commissions due from the aforementioned transactions on the theory that Ms. Rathgeb was negotiating and receiving outside commission monies from transactions which were being consummated through the good will, advertising and other efforts of Real Estate Merchandisers while she was employed to devote her full-time efforts to Real Estate Merchandisers. Respondent's assertion in this regard were considered and were rejected for lack of proof. In any event, the undersigned advised Respondent during the hearing that the proper procedure to seek redress from Ms. Rathgeb for those claims, which were not a part of the subject Administrative Complaint, was through the filing of a written complaint, properly executed, with the Board of Real Estate, and not as a set-off to the allegations herein. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent's corporate broker license be suspended for a period of two (2) years. DONE and ENTERED this 24th day of August, 1981 at Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of August, 1981.
Findings Of Fact At all times pertinent to the allegations contained in this case, Respondent was a Florida licensed real estate salesman, having been issued license numbered 0376339. Respondent had been employed by American Specialty Properties (ASP) for several years as an expediter prior to being assigned to Tampa, Florida. As an expediter, his duties were to take over stagnated operations of his employer and take whatever action was necessary to clear blockages and bring the operation to a successful conclusion. Respondent came to Tampa to resolve difficulties his employer, ASP, was encountering in regard to certain properties it had contracted to purchase at the Mission Bell Square shopping center being developed in Tampa by K-Mart Corporation. ASP wanted to build on the out-lots and lease the properties to various selected tenants. However, numerous legal and technical problems had come up that delayed the projects, and Respondent was to resolve those problems and get the structures erected and leased. It very soon became apparent to Respondent that his duties for ASP would not occupy all his time, so he secured the permission of Mark M. Mayers, president of ASP and Respondent's employer, to apply for a Florida real estate license and, once having secured it, to engage in outside employment to earn extra income. In furtherance of that plan, after becoming licensed as a real estate salesman, Respondent entered into an arrangement with Timothy Kerwin, president of Max Properties, Inc., in November, 1980, whereby Respondent's license would be registered with that firm, but no actual work would be done within that relationship by Respondent until some further date when Respondent was finished with his Mission Bell Square duties and room was available for him within the Max Properties organization. Kerwin says he does not recall knowing of Respondent's other employment with ASP until February, 1982, when he discovered that Respondent had been instrumental in the sale of the four out-lots at Mission Bell Square, which sale had not gone through Max Properties. He does admit, however, that Respondent may have discussed his work with ASP earlier than February, 1982, and in fact may have advised him that he, Respondent, still had work to do for ASP before he could do work for Kerwin. Kerwin did not, however, check with ASP to determine Respondent's status when he became aware of the possible conflict. When Kerwin found out about the closing of the sales on the Mission Bell Square out-lots, he questioned Respondent about them, and Respondent readily advised him that two lots had been closed and the remaining two were about to be closed. Respondent did bring about the sale of the four out-lots in question. At the time he did this, he was an employee of ASP and paid a regular salary of $2,000 per month plus expenses. A memorandum purportedly from Mr. Mayers dated March 25, 1982, to James W. Roberts, Jr., an independent real estate broker who-had done work on this property for ASP, indicates Respondent was to receive $1,250 commission for the sale of each of the four lots. However, Mr. Mayers indicated that he did not prepare the memorandum, did not sign it, and renounced it. In fact, Mr. Mayers' assistant, Tom Ferguson, in discussions with Mr. Roberts, indicated that notwithstanding the commissions mentioned in the memorandum, Respondent was paid only salary and expenses, and no commissions. I find, therefore, that Respondent did not receive any commission for these transactions nor, for that matter, at any time while he was an employee of ASP. The sale of the four lots was dictated by Respondent's employers at ASP, who, because of changed economic factors, made a business decision to dispose of the four properties rather than follow the prior plan of developing and leasing them. Respondent, in arranging the sales, was following the directions of his employers--not serving as a broker or salesman for commission. The sales were arranged through the offices of Mr. Roberts, and Respondent did not receive any commission out of these sales. He did, however, receive a bonus to his regular salary from ASP, his employer, as a reward for extricating his employer from a potentially unprofitable business arrangement. The negotiations for the sale, however, were conducted during the time Respondent's real estate license was registered with Max Properties.
Recommendation Based upon the foregoing, it is, hereby, RECOMMENDED: That the Administrative Complaint filed against the Respondent in this action be dismissed. RECOMMENDED this 10th day of June, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983 COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Stephen M. Crawford, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 Tampa, Florida 33601 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
