The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times material hereto, Respondent A. Richard Perez was a licensed real estate broker in the State of Florida, having been issued license number 0246170. Richard Perez and Associates, Inc. was, at all times material hereto, a corporation registered as a real estate broker in the State of Florida, having been issued license number 0233722, and Respondent Perez was the qualifying broker, owner and President of said real estate corporation. From approximately April, 1984 to approximately September 24, 1984, Respondent Perez employed Beverly Givens as a real estate salesperson. This employment was through, and in association with Richard Perez and Associates, Inc. Givens' real estate salesperson's license number is 0403324. Givens was employed by Perez to engage primarily in the sale of condominium conversion units known as Oakbrook Village Condominiums in Clearwater, Florida. In accordance with her independent contractor and compensation agreements, commissions were earned only at such time as a sale was closed and the seller paid a commission on such sale. Further, in the event of the termination of the independent contractor agreement, the independent contractor was entitled to one-half of the regular commission for all units closed following such termination if there was a fully executed sales contract on the unit at the time of termination, and if the seller paid a commission on the sale. In addition, Givens was eligible for, and did in fact receive, a draw of $450 every two weeks from Perez beginning on April 15, 1984. Commissions earned by a salesperson were first applied against any outstanding draw balance, and after all draws were repaid, the salesperson then received excess commissions. At the time of her termination on or about September 24, 1984, Givens had several fully executed sales contracts for units at Oakbrook Village which had not yet closed. Five of these contracts subsequently closed, as follows: Hoffman on September 28, 1984; Vollbracht on September 28, 1984; Gasser on October 5, 1984; Hakel on October 5, 1984; and Cook on October 31, 1984. Respondent Perez did not pay Givens any commissions in connection with these five closings. However, Perez only received commissions from the seller for the Hoffman, Gasser and Hakel transactions, and did not received any commissions for the Vollbracht or Cook closings. Givens filed suit against Richard Perez and Associates, Inc., on January 14, 1985. On July 29, 1986, she received a Final Judgment against that corporation, in Case Number 85-3211-15, in the Circuit Court for Pinellas County, for unpaid commissions in the amount of $1522.29, plus $322 in interest, $216.45 for costs and $2500 for attorneys fees, for a total of $4,560.74. Respondent Perez, as qualifying broker at the time, did not attend the trial, and said corporation was unrepresented in the proceedings. To date, Respondents have not paid or otherwise satisfied this Final Judgment. On July 29, 1987 a Verified Motion for Relief From Final Judgment was filed in Case Number 85-3211-15 on behalf of Richard Perez and Associates, Inc., seeking to set aside the Final Judgment because of lack of notice concerning the trial date. Respondent Perez, as President of said corporation, verified this Motion. By stipulation of the parties in this case, the Verified Motion was denied. Givens received nine checks representing draw payments of $450.00 each for the period between April 15 and August 31, 1984. In addition, she received a check dated September 20, 1984 in the amount of $4,741.84 which states thereon, "Pay back draw and commissions to date." These checks were all signed by Respondent Perez from the account of Richard Perez and Associates, Inc. Total payments received by Givens amounted to $8,791.84. No records were produced by Petitioner or Givens to establish the commissions she was due for closings which occurred during her employment. She simply alleged that when she terminated her employment on September 24, 1984, she had paid back all draws and amounts advanced to her, and that she was therefore entitled to one-half of the normal commission on the five closings which occurred after her termination. Petitioner and Givens rely on the notation on the check she received from Respondent on September 20, 1984, and the Final Judgment in Case Number 85-3211-15 to support her allegation that when she terminated her employment, she did not owe Respondent Perez any amounts for draws and advances and that he has failed to pay her commissions to which she was entitled. Testimony offered by Petitioner of Clay Simpson and Jim Givens is given little weight due to their own expressed motivation to support Beverly Givens in her claim against Respondent, the fact they were not involved in the process of paying Respondent's salesmen, and their lack of knowledge or experience in keeping financial records. Respondent alleges that upon Givens' termination, she owed him certain amounts for draws which had been advanced to her, and that the subsequent closings were applied against that balance due. Therefore, he maintains that he owes her nothing as a result of these five closings. Based upon the clear and express terms of the independent contractor and compensation agreement, it is specifically found that Beverly Givens was not due any commission on the Vollbracht and Cook closings since the evidence clearly establishes that in both cases the seller did not pay Respondent any commissions in association with these sales. Respondent Perez and Givens agree that she should be credited with a $416.13 commission from the Hakel closing. Concerning the Gasser and Hoffman closings, Perez asserts Givens should be credited with $275.63 and $269.50, while Givens claims $321.56 and $404.25, respectively. It is therefore Perez' position that Givens' credits from these subsequent closings totalled $961.26, while Givens claims $1,141.94 from these three subsequent closings. The evidence adduced at hearing does not permit a finding to be made as to which credit amount is correct, because no testimony or documentary evidence was presented concerning the percentage of commission to be earned by the salesperson on these three transactions. Nevertheless, even if it is assumed that the lower credit amount was due Givens, it would still appear that Respondent Perez owed her almost $1000.00, and has improperly failed to pay her these commissions. Competent substantial evidence was offered by Petitioner in the form of the check dated September 20, 1984, in the amount of $4741.84 bearing the notation that it was for payment of "back draw and commissions to date" to establish that Givens had paid back all draws and advances through earned commissions while she was employed by Respondent Perez, and in addition thereto still had sufficient sales to receive this payment. Therefore, when she terminated on September 24, 1984, she was due commissions from Perez for the three sales which subsequently closed for which the seller had paid him a commission. While there may be a dispute as to the exact amount of commissions owed Givens, it is clear that it was between $961.26 and $1,141.94. The draw/commission account ledger presented at hearing by Respondent Perez allegedly showing that Givens owed him approximately $1450 is not persuasive because he testified that it was not prepared contemporaneously with the sales transactions depicted thereon, but rather was prepared after Givens' termination by a person who was not present to testify, and no records were produced to verify or substantiate the sales figures depicted on the ledger.
Recommendation Based upon the foregoing it is recommended that the Florida Real Estate Commission enter a Final Order imposing an administrative fine of $1500.00 against Respondent A. Richard Perez only, and suspending his real estate broker's license for a period of three months; it is further recommended that a Final Order be entered suspending the registration of Richard Perez and Associates, Inc., for a period of three months. DONE AND ENTERED this 16th day of December, 1987, in Tallahassee, Florida. DONALD D. CONN 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 16th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1990 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 3. 3-4. Adopted in Finding of Fact 4. 5-6. Adopted and Rejected in part in Finding of Fact 5. Rejected as unnecessary and irrelevant. Adopted and Rejected in part in Finding of Fact 6. Rejected as simply a summation of testimony and not a Finding of Fact; otherwise, Rejected as irrelevant, unnecessary and not based on competent, substantial evidence. Adopted in Findings of Fact 10-12. Adopted in Finding of Fact 14. Adopted and Rejected in part in Findings of Fact 5, 11, 12. Rejected as simply a summation of testimony. Adopted in Findings of Fact 6, 7, but otherwise Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 David S. TenBrook, Esquire 601 North Lois Avenue Tampa, Florida 33609 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent, Judith Ann Lukacs, be DISMISSED. DONE and ENTERED this 24th day of May, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings 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 May, 1982
Findings Of Fact Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in 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 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether respondent's license as a real estate broker should be disciplined for the reasons stated in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Yolanda Jean Ramsey, was a licensed real estate broker having been issued license number 0012364 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent operated a real estate firm under the name of Ramsey Realty located at 19940 Gulf Boulevard, Indian Shores, Florida. Her husband, Drew Ramsey, was a condominium developer but he was not a licensed realtor. Sandra A. Hawley (Hawley) was a licensed salesperson for Ramsey Realty from April 1981 until she was terminated by respondent on January 6, 1982. She was employed by respondent pursuant to an oral agreement and was to receive a 3% commission on all closed sales. This description of Hawley's compensation arrangement was not contradicted by respondent. Drew Ramsey was then developing several condominium projects in Pinellas County, and Hawley's sales activities were focused on the sale of those condominiums through Ramsey Realty. Hawley was described by respondent as being the best salesperson in the firm. From April 1981 through December 1981, Hawley recalled that her W-2 statement reflected $76,000 in commissions actually received. By the time she was terminated, Hawley represented that she had either closed on units or had firm contracts on other units to earn an additional $279,000 in commissions. Although respondent did not agree she owed Hawley any money due to various setoffs, the $279,000 figure was not credibly contradicted, particularly since respondent's records relating to those sales were allegedly destroyed or lost by respondent at about the time certain civil litigation was begun by Hawley. On January 6, 1982, respondent was terminated by respondent for cause. According to respondent, Hawley was delinquent in making payments to her husband for several condominium units Hawley had bought for investment purposes, and on one occasion, Hawley had not turned over to Ramsey Realty a deposit on a resale of a unit. She was also accused of bouncing checks. After she left Ramsey Realty, Hawley made demand for commissions still owed. Between January and June 1982 she was paid approximately $40,000 by respondent but received nothing after that. She eventually sued respondent in circuit court for the unpaid commissions and obtained a final judgment against respondent on December 10, 1987 for $76,000 plus interest, or a total of $118,618.88. To date, Hawley has been unable to obtain payment of the judgment. At hearing respondent acknowledged that a judgment pertaining to Hawley's unpaid commissions was entered against her and that no appeal of that judgment was taken. According to Ramsey, she has refused to pay Hawley based upon her attorney's advice. Respondent's principal defense against paying the commissions is that Hawley allegedly owes her and her husband substantial amounts of money which offset the earned commissions. Testimony at hearing revealed that these matters have been the subject of extensive and lengthy civil litigation between Hawley and the Ramseys. Hawley represented that she has prevailed in all court actions, and this was not contradicted by respondent. However, none of the judgments and mandates (if an appeal was taken) were made a part of this record. The principal offset relates to a lease-purchase agreement entered into by Hawley and her son, James Monette, Jr., and Drew Ramsey in June 1981 whereby Hawley and her son agreed to lease, with an option to purchase, a restaurant/bar known as The End Zone located on Dale Mabry Avenue in Tampa, Florida. On June 18, 1981 Hawley and her son executed a promissory note in the amount of $170,000 payable to Drew Ramsey and to be secured "by an assignment of commissions of even date herewith". The note also provided that "certain commissions earned by Sandra A. Hawley as a real estate salesperson for Ramsey Realty ... shall be applied as prepayments on account hereof." This was confirmed in a letter sent by Hawley to respondent on June 18, 1981. The letter authorized Ramsey to "pay one-half of all commissions which I have earned or will earn from working as a real estate person for Ramsey Realty to Drew Ramsey on account of the indebtedness under the Note until it is paid in full." The letter further provided that if Drew felt "insecure" about the note, Yolanda was authorized to "assign such greater percentage of (her) commissions to Drew Ramsey on account of the indebtedness until it is paid in full." Hawley admitted signing the promissory note but pointed out that she had earned enough commissions to easily pay off the note. She contended that the transaction was a ploy to allow Ramsey to retain all of her commissions and thereby deprive her of adequate capital to successfully operate the restaurant. Hawley further asserted that the transaction was later declared null and void in one of the civil actions between the parties because of certain fraudulent representations made by Drew in inducing her to enter into the agreement. However, the final judgment, which is the best evidence of the outcome of the suit, is not of record. On October 1, 1981, an agreement and promissory note was executed by Hawley wherein she promised to pay Drew Ramsey and his partner, George Karpay, $58,162.90 plus 18% interest for monthly payments owed Ramsey and Karpay on five condominium units Hawley had previously purchased from them. The note was secured by Hawley's commissions earned at Ramsey Realty. Hawley acknowledged that the signature on the documents was her own but contended that the documents had been altered after she signed them. On October 1, 1981, Hawley also executed an assignment of commissions whereby she agreed to authorize Ramsey Realty to disburse all commissions earned to Drew Ramsey and Karpay until the promissory note described in finding of fact 9 was satisfied. Again, Hawley acknowledged that the signature appeared to be her own but she contended the document was altered after it was signed. According to respondent, the commissions earned by Hawley were not held in the firm's escrow account. Instead, while Hawley was still an employee, such moneys were disbursed by the title company at closing directly to Ramsey Realty, and then Ramsey wrote a check to Hawley as commission compensation. After Hawley was terminated, the manner in which Ramsey received Hawley's earned commissions and their subsequent disposition are not of record. However, respondent represented, without contradiction, that they were not held in the firm's escrow account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating subsection 475.25(1)(d) and that her broker's license be suspended for three years. The other charge should be dismissed. DONE AND ORDERED this 14th day of December, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At the hearing, counsel for the petitioner attempted to introduce into evidence as an exhibit a computer printout showing respondent's license status. This document could not be identified by any witness called to testify in the proceeding and was not otherwise properly authenticated. The following colloquy between counsel for the petitioner, the Hearing Officer and the respondent occurred prior to the time respondent was placed under oath during the hearing: MR. JORDAN: Finally, Your Honor, we'd like to introduce as our next exhibit a computer printout showing Mrs. Steed's license status which reflects that her broker's license was effective 4/1/81. That would be Exhibit 23. MRS. STEED: Where are they located at? MR. JORDAN: That came out of Tallahassee, I believe. That's just a printout on your license. MRS. STEED: Do they show I'm inactive? MR. JORDAN: Let me see. This simply shows that as of 8/28/81 and you were licensed and your broker's license became effective 4/1/81 and your home address is 10164 Southwest 64th Street. MRS. STEED: None of that is true. THE HEARING OFFICER: She obviously cannot identify that document if it's something that came out of Tallahassee and she's never seen it before. MRS. STEED: It's inactive. THE HEARING OFFICER: Okay. Since Mrs. Steed is not represented by an attorney, I feel obliged to tell her it's the Board's responsibility to prove that she either was licensed at the time of the allegations in the complaint or something -- MRS. STEED: I am not a licensed real estate broker at the present time and I haven't been, but I just don't know the date that it changed. MR. JORDAN: The material time I think is back in `80 and `81 when this was going on. I can call your associate. MRS. STEED: I possibly was licensed then. I'm not saying I wasn't. I don't really know. I would say I was. THE HEARING OFFICER: As I said, it's the Board's responsibility to prove that up. MR. JORDAN: I think she's saying you still have it. It's just that it's inactive. MRS. STEED: I'm inactive. MR. JORDAN: You haven't given up your license; correct? MRS. STEED: No THE HEARING OFFICER: You're not offering that? MR. JORDAN: I'm not offering that. I think she agrees that she was licensed back in '80 and '81 when these transactions were going on. (TR. pp 59 and 60) No other evidence was offered during the hearing as to respondent's status as a licensed real estate broker in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent filed on September 2, 1981, as amended on December 1, 1981, be DISMISSED. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 28 day of July, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Mr. C. B. Stafford Conrad, Scherer & James Executive Director Post Office Box 14723 Florida Real Estate Commission Ft. Lauderdale, Florida 33302 Post Office Box 1900 Orlando, Florida 32801 Carolyn Steed 5951 S. W. 67th Ave. Fred Wilsen, Esquire Davie, Florida 33314 Florida Real Estate Commission 400 W. Robinson Orlando, Florida 32801
Findings Of Fact At all times relevant to this proceeding, the Respondent, Jack Folk, has held an active real estate brokers license. From February 9, 1978, till December 14, 1978, Mrs. Evelyn Wilhelm, the Complainant, worked for the Respondent as a real estate broker. Pursuant to an employment agreement signed by Mrs. Wilhelm and the Respondent, she was to receive 80 percent commission on sales subject to exceptions for sales made by the Bo-Jac Realty Office or Bo-Jac Realty Listings. Out of the 80 percent, Mrs. Wilhelm was expected to pay all of her expenses. Due to continuing disagreements between the Complainant and Mr. Folk, Mrs. Wilhelm listed her license with another broker on December 14, 1978, without informing the Respondent of such action within 30 days prior to such termination as required by their employment agreement. The broker that she listed her license with was not a member of the Multiple Listing Service and Mrs. Wilhelm continued to use the Respondent's Multiple Listing Service after she had severed their professional relationship. Between December 18, 1978 and January 11, 1979, the Complainant continued to take referral calls from Respondent's office. When the Respondent learned from Mr. Wilhelm, the complainant's husband, on January 11, 1979, that the Complainant was registered with another broker, he immediately notified the Florida Real Estate Commission of such dual registration. At the time Mrs. Wilhelm left the Bo-Jac office, there were five pending or completed real estate closings in which she was involved and was owed money by the Respondent. One of these was designated as "Hart-Esposito" by the parties and is referred to as "Hart" in the Administrative Complaint. The Respondent was reluctant to pay the commissions to the Complainant because of legal advice he had received from his attorney concerning Section 475.42(1)(d), Florida Statutes and a possible breach of the employment agreement. This information was forwarded to the Complainant on January 25, 1979, via letter from Mr. Robert Saylor, attorney fro the Respondent. Upon the advice of counsel, Mr. folk deposited the disputed commissions in an escrow account and through his attorney notified the parties of this occurrence. The Complainant retained counsel who filed suit on the commissions on March 2, 1979. The Respondent counter-claimed and presented affirmative defenses outlining his position concerning the alleged breach of the employment contract and the dispute over the percentage of commissions due. Counsel for both parties entered into settlement negotiations which led to a voluntary dismissal by the Complainant on January 15, 1980 of the pending civil action. Although the civil action was filed by the Complainant, the Respondent also contemplated filing suit over the commissions. The Complainant simply filed her action before the Respondent's counsel file his.
Recommendation Therefore, it is RECOMMENDED: That the complaint filed against the Respondent, is DISMISSED. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Salvatore A. Carpino, Esquire C. B. Stafford, Executive Director Staff Attorney Florida Real Estate Commission Department of Professional 400 W. Robinson Street Regulation Post Office Box 1900 2009 Apalachee Parkway Orlando, Florida 32801 Tallahassee, Florida 32301 Robert L. Saylor, Esquire 618 U.S. Highway One Post Office Box 14667 North Palm Beach, Florida 33408
The Issue Whether petitioner should take disciplinary action against respondents, or either of them, for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Eglin Realty, Inc., holds a real estate broker's license, No. M14 0024352, last renewed before the hearing on April 1, 1986. Petitioner's Exhibit No. 1. A Florida corporation, Eglin was originally licensed in 1971, (T. 47) or, at least, has been "in business since 1971." (T. 22) Seventy-two years old at the time of hearing, Eglin's president, Leon F. Bishop, has never held a real estate license but he has developed several subdivisions (T. 50) and "was buying and selling land all of [his] life." (T. 51) In 1982, Mr. Bishop, his wife and daughter owned stock in Eglin. Of 50 shares authorized and outstanding, he owned one share; his wife owned ten; and his daughter owned the remaining 39. In July of 1982 and for some time before, respondent Jerry L. Armstrong, himself in the real estate business for 25 years, believed he was registered as the "active broker" (T. 231), for Eglin Realty, Inc., and as a qualifying real estate broker for Armstrong and Associates, Inc.; and, he was "fairly certain . . . [that he] had an individual license at that time also." (T. 234) Arguably, nobody was registered as Eglin's "active broker" in July of 1982, because Eglin's real estate broker's license expired, at least by its own terms, on March 31, 1982. Apparently through oversight, Eglin had not renewed the license. Petitioner's Exhibit No. 1. For four or five (T. 24) years before, however, Mr. Armstrong had indeed been registered as Eglin's qualifying broker. On December 10, 1982, Mr. Armstrong, who is now a "broker-salesman with Coldwell-Banker Deep South Realty Corporation," (T. 230) resigned as "vice president director and active real estate broker for Eglin Realty, Inc., effective December 19, 1982," Petitioner's Exhibit No. 1, which resignation Mr. Bishop and his wife Dorothy, then Eglin's other two officers and directors, duly accepted. Id. Only the following August, after Eglin chose Joan A. Ritteman to succeed Mr. Armstrong, did Eglin learn that its license was to have expired in March of the preceding year. On October 13, 1983, Eglin made application for "late renewal," tendering a $15 late fee in addition to the $40 renewal fee. Petitioner's Exhibit No. 1. With the grant of this application, Eglin has been registered with DPR as a real estate broker, Ms. Ritteman being the firm's sole qualifying broker since then. King's Lake Property When Mr. Bishop met Dr. and Mrs. William D. Permenter at a land auction in Walton County in early 1982, he gave them a business card like the one that came in evidence as Petitioner's Exhibit No. 10. (T. 93) "Eglin Realty, Inc." appears in the center of the card above the phrase "Land and Farm Broker." The upper right corner bears the Realtor logo under the words "Reg. Real Estate Broker." The lower left corner reads "Leon Bishop President." The upper left corner has telephone numbers, and the remaining corner gives a mailing address. The Permenters mistook Mr. Bishop for a registered real estate broker, when he introduced himself. Some days after the auction, Mr. Bishop arranged to show one or both of the Permenters a large tract he owned, but failed to interest them in it. It occurred to him that they might be willing to invest instead in the 1,527-acre parcel that Hubert Alberton Bell and C. J. King, Jr. of Defuniak Springs owned jointly in Walton County, property which the owners had listed for sale with Angus Guinness Douglass, Jr. of Douglass Realty, Inc. Mr. Bishop may have learned of this parcel's availability from Mr. Douglass at the very auction at which he met the Permenters. Under the terms of the listing agreement, Douglass Realty was entitled to a ten percent commission if a sale of the whole parcel could be arranged, at $1,000 per acre, within 100 days of May 3, 1982. Petitioner's Exhibit No. 7. Before showing the Permenters the land Messrs. Bell and King hoped to sell (the King's Lake property), Mr. Bishop approached Mr. Douglass, and proposed that Douglass Realty, Inc. share with Eglin any commission arising from a sale of the King's Lake property to buyers Mr. Bishop or Eglin might procure. In a letter dated July 4, 1982, and signed by respondent Armstrong, Petitioner's Exhibits Nos. 3 and 11, Eglin's share of the anticipated commission was specified. The letter concluded: The undersigned [Jerry L. Armstrong] agrees by this letter to authorize Leon Bishop, as president of Eglin Realty, Inc., to personally deliver this agreement and to accept on my behalf, as the active licensed Florida real estate broker. Petitioner's Exhibit No. 3. Mr. Douglass felt free to deal with Mr. Bishop with regard to the commission both because of Mr. Armstrong's letter and because he knew of no "real estate law that said [he] had to ask, or say, let me see his license before I talk to him." (T. 209) At no time did Mr. Douglass speak to Mr. Armstrong about the transaction. (T. 211) Agreement as to the commission split having been reached, Mr. Bishop showed the Permenters the King's Lake property, and, in early July, Dr. Permenter offered to buy it. After "Mr. Bishop told [Dr. Permenter that his offer] had been accepted," (T. 97) the transaction closed on July 28, 1982, in a lawyer's office in Defuniak Springs. Present were the lawyer, Mr. Bishop, Mr. Douglass, Mrs. Douglass, Mrs. Permenter and the principals. In exchange for a deed in favor of Dr. William Permenter and assigns, the vendors received a purchase money mortgage in the amount of $1,275,000, together with the balance of the $1,425,000 sales price, less various transaction costs, notably a $25,000 initial payment toward a brokerage commission totalling $118,587. Eglin's Exhibit No. 3. At no time before the final hearing in the present case did Dr. Permenter ever see Mr. Armstrong. (T. 97) In accordance with a revised commission agreement dated July 6, 1982, and executed by Messrs. King, Bell, Douglass and (on behalf of Eglin) Bishop, Eglin's Exhibit No. 2, and consistently with the earlier agreement between Eglin and Douglass, Petitioner's Exhibit No. 11, Mr. Douglass drew a $10,000 commission check in favor of Eglin, keeping $15,000 as Douglas Realty, Inc.'s share of the initial commission payment. (T. 212) Also in keeping with Eglin's Exhibit No. 2, Messrs. King and Bell each executed a promissory note in favor of Eglin in the amount of $21,682, bearing interest at ten percent, payable in three annual installments. Petitioner's Exhibits Nos. 8 and 9. These notes represented the remainder of the commission owed Eglin. (The vendors also made and delivered notes payable to Douglass for unpaid commission owed Douglas Realty, Inc.) Sharing The Commission Mr. Bishop was Eglin's only salaried employee, (T. 50) and also sometimes borrowed money from the corporation. Although a monthly salary of $1,000 was authorized "[i]n the minutes," (T. 57) "[t]here was never no set amount of salary that [Mr. Bishop] would get," Id. from Eglin in 1982. Sometimes he drew no "money for a few months, and then . . . would get a large sum." (T. 57) "Whenever [he] wanted to get money from the corporation, [he] asked for it, and . . . got it." (T. 58) He "didn't make a request to Mr. Armstrong." (T. 61) His wife had authority to write checks against the Eglin account into which the $10,000 commission check delivered at the King's Lake property closing was deposited. (T. 62) After the deposit, Mr. Bishop asked his wife or daughter for some of the money, and Mrs. Bishop drew a check in her husband's favor for $5,000 or thereabouts on the Eglin account. The totality of the evidence makes it clear that this payment, whether characterized as salary or not, was compensation for his procuring Dr. Permenter as a buyer and otherwise facilitating the sale of the King's Lake property. For one thing, "[t]he only transaction [Eglin] had during that period of time was the King's Lake [property]." (T. 254) Mr. Bishop and Mr. Armstrong "had an agreement from the start that anything [Bishop] bought and sold would go through [E]glin Realty, due to the fact that there would be a commission there, and [Armstrong] would be entitled to some of the commission." (T. 250) Mr. Armstrong professed to believe that Mr. Bishop "was operating as an owner" (T. 236) when Messrs. King and Bell sold the King's Lake property. Mr. Armstrong also testified, falsely but under oath, that he, not Mr. Bishop, negotiated the commission sharing arrangement with Mr. Douglass, the implication being that he thereby earned a portion of the commission Eglin received. In any event, Mr. Armstrong believed himself entitled to a share of the King's Lake property commission. He directed that his share be applied against outstanding loans totaling $3,500 to $4,000 which Eglin had made to him. (T. 248) Ten Percent Dr. Permenter, who has abandoned the practice of medicine in order to devote more time to real estate development, acquired the King's Lake property planning to subdivide it and sell lots. First, he caused the property to be divided into several large tracts, some of which he conveyed into trust. One tract, dubbed King Lake Estates, was conveyed to a partnership Dr. and Mrs. Permenter entered into with each other. Much, if not all of this tract, was subdivided into lots. At some point, Mr. Bishop agreed to sell the lots, and to assist development in other ways. To that end, he and his daughter spent time in a trailer on the property. The Permenters agreed to pay Mr. Bishop ten percent of the sales price of any lot he sold. In keeping with this agreement, Mrs. Permenter wrote him several checks on behalf of the partnership. On August 29, 1983, Mr. Bishop and the Permenters executed a written agreement memorializing their arrangement, reciting that some 83 lots had already been sold under it, and conveying to Mr. Bishop "a $2500.00 life interest" in the Kings Lake Estates tract. Petitioner's Exhibit No. 2. A purpose of this agreement was to create a legally enforceable right in Mr. Bishop to the ten percent share of sales proceeds the Permenters were then regularly paying him as lots were sold. Mr. Bishop never had any ownership interest of any kind in any portion of the King's Lake property other than the King Lake Estates tract. When Dr. Permenter sold a Kings Lake Estates lot himself, Mr. Bishop did not receive ten percent of the proceeds. (T. 100) Notes Discounted After he began selling lots for the King Lake Estates partnership, Mr. Bishop told the Permenters he needed money, and asked if they would take the notes Messrs. King and Bell had given Eglin for the remainder of the commission, in exchange for undertaking monthly payments to Eglin. Some time remained before the next annual payments called for in the notes which King and Bell had executed in favor of Eglin when they sold the King's Lake property. The Permenters were agreeable, what with the substantial sums Dr. Permenter still owed the notes' makers. In order to transform annual payments into monthly payments, Mr. Bishop, on behalf of Eglin, endorsed the notes Messrs. King and Bell had given Eglin, in favor of Dr. and Mrs. Permenter. In return, Dr. and Mrs. Permenter executed a promissory note with specified amounts payable monthly to Eglin. It was after this had been accomplished that an investigator from the Division of Land Sales of the Florida Department of Business Regulation advised the Permenters that they were required to register their subdivision with the Department. He also informed them that Mr. Bishop was not licensed as a real estate broker, which came as a surprise to them. Apparently on the theory that the promissory notes they had received in exchange for theirs represented legally unenforceable obligations to pay real estate commissions to an unlicensed entity, Dr. and Mrs. Permenter stopped making payments on their promissory note to Eglin. When Eglin sued on the note, the Permenters filed a counter-complaint alleging that "on July 27, 1983, . . . [Eglin] was not a registered real estate broker and was not entitled to be paid fees." Petitioner's Exhibit No. 6. The litigation eventuated in an amended final judgment awarding Eglin the unpaid balance of the note. Eglin Realty, Inc. vs. William D. Permenter and Elizabeth A. Permenter, No. 85-718-CA (Fla. 1st Cir.; Mar. 30, 1987). An appeal was pending at the time of final hearing in these proceedings.
