Findings Of Fact The Respondent holds a real estate license and is a registered real estate broker. (Petitioner, Exhibit 1 and 2) The Respondent was a thirteen (13) year employee of Mr. J. Clair Lanning, who in 1969 executed a property management agreement with Mr. A. W. Ross, to manage a 5-unit apartment building at 1033 19th Avenue South, St. Petersburg, Florida. (Testimony of Lanning, Respondent Exhibit 3). Upon Mr. Lanning's retirement in the mid-seventies, the Respondent continued to manage Mr. Ross' property by agreement of the parties. (Testimony of Lanning). The written agreement did not require that monthly statements be furnished to Mr. Ross, although Mr. Ross stated that the Respondent verbally agreed to such a procedure and a prior written agreement between Mr. Lanning, Mr. Ross and a previous owner required monthly statements. (Testimony of Ross, Respondent Exhibit 1). The Respondent furnished monthly statements to Mr. Ross until she became bedridden due to a serious accident. (Testimony of Ross, Thomas and Lanning). Following the Respondent's accident, the office files were moved from her office to her bedroom and the statements were generally not furnished on a monthly basis. (Respondent Exhibit 2). The apartments were in a low income area, and were subject to substantial variations in occupancy. The tenants could be described as "transients" and, accordingly, made payments on a weekly basis. (Testimony of Brown and Lanning). The Respondent was given a "free hand" in making repairs and maintaining the building. (Testimony of Ross). In return for managing the property, the Respondent was paid $50.00 per month. The Respondent has complied with the request for an accounting to the best of her abilities. (Testimony of Thomas, Ross and Lanning). Although a former tenant testified that she gave rent monies to a girl who she thought to be Respondent's daughter, and such monies were not accounted for by the Respondent, there is no reason to believe that the girl in question was the Respondent's daughter or that the Respondent ever received such payment. (Testimony of Brown). No testimony or documents were presented which support the allegation that the Respondent received any monies from March 1 through March 15, 1978, which were not accounted for. During the course of this investigation, a Board investigator requested and received access to the records in the possession of the Respondent relating to the subject property that she was required to keep pursuant to the written agreements. Certain of the records were unavailable to the investigator because they were destroyed in an office fire. (Testimony of Thomas).
Findings Of Fact The Respondent, John A. Nangle, is now and was at all times material to this matter, a licensed real estate salesman having been issued license number 0340127. He was employed in this capacity by Delray Realty, Inc. until January 4, 1982, when such employment terminated. Respondent did not thereafter become employed by another broker, but instead placed his license on inactive status. After heaving Delray Realty, Inc., Respondent negotiated a sales contract for the sale of a condominium unit from Marion Mowday to Anthony J. and Donna C. Amato, which closed on January 13, 1982. Respondent received $1,500.00 in compensation directly from the purchasers for his efforts in arranging this transaction.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's license for a period of three years. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 28th day of June, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. John A. Nangle 860 North West 8th Avenue Delray, Florida 33444 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(b), Florida Statutes (1997), by failing to disclose that a tenant was her son, by failing to collect a required security deposit, and by acting as the agent for the tenant rather than the landlord. (All reference to Chapters and Sections are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate broker pursuant to license number 0480790. At all relevant times, Respondent was employed by Norris Realty, Inc. ("Norris"). In March 1990, Mr. and Mrs. George and Margaret Nichols entered into a property management agreement with Norris. Respondent was aware of the management agreement. Norris was the agent for the Nichols and assumed all duties owed to a principal by an agent. The managing broker was Mr. Alan Norrie. On March 22, 1996, Mr. Norrie died, and Respondent assumed responsibility as the broker/office manager for Norris. Respondent had no experience managing a real estate office at the time. She continued in that role for approximately seven months. During the time Respondent was the broker/office manager for Norris, another agent for Norris obtained a lease from Mr. Joseph McGee to rent the Nichol's property. There were no written amendments made to the lease during the time Respondent was the broker/office manager of Norris. The lease required all rents and other monies to be paid to Norris. The tenant was to deposit with Norris a $750.00 security deposit and the last month's rent of $750.00 prior to occupying the property. Respondent failed to disclose to the Nichols that the tenant was her son. The lease does not disclose the relationship of the tenant to the broker/office manager of Norris. The Nichols did not learn that the tenant was Respondent's son until March or April of 1997, approximately four months after the tenant occupied the rental property. Respondent permitted the tenant to move into the property without collecting either the security deposit or last month's rent from the tenant. Respondent failed to disclose to the Nichols that the tenant had paid neither the security deposit nor the last month's rent. Shortly after occupying the property, the tenant failed to pay further rent. A judgment of eviction was eventually entered against the tenant. The tenant vacated the property and took the stove that was in the rental property. Respondent acted as her son's agent in the rental transaction. By letter dated May 21, 1997, the Nichols filed a complaint against Respondent with Petitioner. During the formal hearing, Respondent admitted to being negligent regarding the transaction in question and acting as her son's agent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b), reprimanding Respondent, requiring Respondent to complete continuing education relevant to the specific offenses, and either imposing an administrative fine of $1,000 or requiring restitution to the Nichols. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Dorothy A. McGee pro se 109 11th Avenue Indiatlantic, Florida 32801
The Issue Whether Respondents' licenses as real estate brokers should be suspended or revoked, or the licensees otherwise disciplined, for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated September 28, 1981. This proceeding is based on an administrative complaint filed by Petitioner, Board of Real Estate, alleging that Respondents, while engaged in a rental service business which advertised and sold rental property information or lists, for an advance fee to prospective lessees, utilized a contract or receipt agreement which included language defining when a "rental has been obtained" that was contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and that therefore Respondents had violated Subsection 475.453 and 475.25(1)(b), Florida Statutes. It further alleged that Respondents failed to refund 75 percent of an advance fee to specific prospective tenants as required by Subsection 475.25(1)(e), Florida Statutes and therefore constituted a violation of Subsection 475.25(1)(d), Florida Statutes. At the commencement of the hearing, the parties submitted a Proposed Stipulation of facts which was accepted by the Hearing Officer and constitutes the Findings of Fact hereinafter. No witnesses testified at the proceeding nor were any exhibits entered in evidence other than the four exhibits attached to the Stipulation. (Exhibit 1)
Findings Of Fact Respondent Jack Braunstein is a licensed real estate broker having been issued license number 0146924. The last known address of this Respondent is 916 North Federal Highway, Fort Lauderdale, Florida 33304. Respondent Rent Aid, Inc., is a licensed corporate real estate broker having been issued license number 0133234. The last known main office address of Rent Aid, Inc., is 916 North Federal Highway, Fort Lauderdale, Florida 33304. At all times material herein Respondent Braunstein was the sole active broker of and for Respondent Rent Aid, Inc., doing business at the corporate main office located in Fort Lauderdale, Florida. As said active broker, Braunstein was responsible and liable for the acts and/or omissions of the associates of Rent Aid, Inc. performed in the scope of their employment; and was responsible and liable for the acts and/or omissions of Rent Aid, Inc. At all times material herein, Respondent Rent Aid, Inc., was engaged in a full service real estate brokerage business which included representing potential buyers and sellers of real property and potential landlords and tenants with regard to rental properties. As part of the business Rent Aid, Inc. entered into contracts with prospective tenants for an advanced fee, as shown by Exhibit "A" to the Complaint and incorporated herein by reference. That the contract or receipt agreement forms provided by the Respondents, have inserted therein additional language as to specifically stating that "a rental has been obtained when company provides a guaranteed available rental unit upon the terms specified and requested by member. On or about September 16, 1980 Jan Spear and Deborah Nigro entered into the contract, an accurate copy of which is appended to the Complaint as Exhibit "A", with Rent Aid, Inc. That under the terms of the contract, Respondent had the discretion to refuse any and all refunds if they had shown to the prospective tenant an available rental unit which met the terms specified and requested by the prospective tenant, even if the prospective tenant declined to rent said unit and demanded a refund of the paid fee within the required time frame. That Respondent's practice was to refuse demands for refund made where, in Respondent's opinion, a bona fide effort had been made to obtain a rental, which efforts had been unsuccessful through no fault of Respondent's. Jan Spear and Deborah Negro made written demand upon Respondent's for a partial refund of the fifty ($50) fee which they had paid Respondent's pursuant to the contract. This demand was made within thirty days of the contract date as shown by therefund refusal dated October 12, 1980, attached to the Complaint as Exhibit "B" and incorporated herein by reference as true and accurate. The contract utilized by Respondent's does not strictly conform to the refund required by Rule 21V-10,30 in that the conditions under which a refund would be payable are restricted beyond the scope of said Rule, and SS 475.453(1), Florida Statutes. Respondent utilized the Contract form in question in reliance upon advice received from his prior counsel, Gregory Jones, as shown by a letter dated April 1, 1980. A true and accurate copy of which is attached hereto as Exhibit "C". Sal Carpino, attorney for the Department of Professional Regulation, had been provided with a copy of the form utilized by Respondent and had approved the format of said form without approving a discrepancy of the language in question in this proceeding, to wit: "a rental has been obtained with company (Rent Aid, Inc.) provides a guaranteed available rental unit upon the terms specified and requested by members." In response to this proceeding, Respondent has made full and complete refund to Jan Spears and Deborah Nigro and has agreed to voluntarily stop all use of the Contract form in question, and use only such a form as strictly complies with 475.453(1) and Rule 210-10.30 and to furnish a copy of said form to the Department conformance with said Rule."
Recommendation That the Board of Real Estate issue a private reprimand and impose a $100 fine against Respondents Jack Braunstein and Rent Aid, Inc. for violation of Subsections 475.25(1)(d) and (e), Florida Statutes. DONE AND ENTERED this day of March, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 5th day of March, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 John P. Gaudiosi, Esquire 3801 North Federal Highway Pompano Beach, Florida 33064 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C.B. Stafford, Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact Respondent is licensed by the State of Florida as a real estate brokers and holds license No. 0002997. On May 7, 1979, Respondent acted in the capacity of a real estate broker in the transaction of the sale of a parcel of real property located in Polk County, Florida. The purchaser in that transaction was Margaret Rhoden, and the seller was June Davis, who was represented in the transaction by a relative, Henry Goodwin. On May 7, 1979, Margaret Rhoden entered into a Contract for Sale of Rea1 Estate for the purchase of a piece of property Frostproof, Florida, from June Davis. The full purchase price of the property was $3,500, which Ms. Rhoden paid to Respondent in cash on May 7, 1979, and obtained a receipt from Respondent for that amount. At the time the contract was entered into, Ms. Rhoden was advised that a deed should be forthcoming from the seller within two to four weeks. A date of June 20, 1979, was established to close the transaction, subject to a 120-day curative period should any cloud on the title be discovered. The contract between the parties provided that should any such cloud appear of record, the seller would have a period of 120 days after receipt of written notice prior to the date set for closing in which to attempt to cure the defect. The contract further provided that if title defects were not cleared within the l20-day period, the deposit would be returned to the buyer, or, at the buyer's option, the transaction should be closed in the same manner as if no defect had been found. A warranty deed purporting to transfer the property from the seller to the buyer was executed on June 7, 1979, and a title binder was issued on that same date. The title binder indicated an outstanding mortgage on a larger piece of property of which the parcel purchased by Ms. Rhoden was only a part. When efforts to clear this cloud on the title took longer than expected, Ms. Rhoden asked, and was granted, permission by the seller's agent to commence construction on the improvements on the property notwithstanding the fact that she knew that a cloud remained on the title to the lot, and the transaction had not been closed. Construction was not completed on the improvements because Ms. Rhoden ran out of cash during the course of construction. She moved into the dwelling while it was still in a partially completed condition and, on September 8, 1979, with the permission of the seller's agent, received a loan of $3,000 from the $3,500 deposit she had placed with Respondent, Ms. Rhoden executed a promissory note dated September 8, 1979, in which she agreed to repay the $3,000 loan when clear title to the property was issued. Ms. Rhoden used the proceeds of this loan to make additional improvements on the property. On October 26, 1979, Respondent received both the warranty deed dated June 7, 1979, and the title binder issued on that date from the attorney for the seller. When approached by Ms. Rhoden, Respondent agreed to lend her the deed and title binder to attempt to obtain additional financing to complete construction on her home. The clear inference from the record in this proceeding is that there was never any understanding between Respondent and Ms. Rhoden that this deed could be recorded at this or any other juncture in this transaction. In fact, the contract entered into between the buyer and seller clearly called for the payment of the full purchase price of the property at closing, and the note subsequently executed by Ms. Rhoden conditioned the issuance of a warranty deed to her on the payment of the $3,000 face value of the note. Ms. Rhoden was unsuccessful in obtaining additional financing to complete construction on her home, probably due to the fact that when she sought that financing the outstanding mortgage on the property had still not been satisfied. When Respondent advised the seller's attorney that he had loaned the warranty deed to Ms. Rhoden for the purposes outlined above, he was advised that there was nothing to keep Ms. Rhoden from recording the deed, at which point Respondent apparently determined that it would be prudent for him to retrieve the deed from Ms. Rhoden's possession. Ms. Rhoden had her mother return the deed to Respondent in February of 1980. According to the testimony of both Ms. Rhoden and her mother, they felt the purpose for the returning of the deed was to have it recorded. Respondent denies any such understanding. In resolving this conflict in testimony, the clear inference from the circumstances involved in this transaction, including the wording of the contract of sale and the note executed by Ms. Rhoden, supports a finding that all of the parties to this transaction either knew, or should have known, that the recording of the deed at this juncture in the transaction would have been improper. Although the outstanding mortgage had been satisfied in January of 1980, Ms. Rhoden had not Performed her obligation under the contract of sale by paying the full purchase price. When Respondent had recovered the deed from Ms. Rhoden, he was advised by the attorney for the seller not to record the deed until he had received payment from Ms. Rhoden in accordance with the contract and the promissory note. As indicated above, the outstanding mortgage on the property was satisfied in January of 1980. On February 6, 1980, Respondent Prepared a closing statement reflecting the purchase price of the property as $3,500. From this amount he deducted a total of $478 for state documentary stamps, title insurance, Preparing the deed, and amount of real estate commission leaving a the apparently forwarded the note from Ms. Rhoden for $3,000, together with the $22.00 cash balance remaining from her initial $3,500 deposit to the seller along with the deed which the seller had earlier executed. Ms. Rhoden apparently never made or tendered payment of the $3,000 note, the transaction never closed, and at the time of final hearing in this cause an eviction action was apparently pending between the seller and Ms. Rhoden. Paragraph seven of the contract of sale executed between the seller and Ms. Rhoden Provides as follows: If Buyer fails to perform this contract, the deposit this day paid by Buyer as aforesaid shall be retained by or for the account of Seller as consideration for the execution of this agreement and in full settlement of any claims for damages.
Findings Of Fact Angelo Ciciretti is, and at all times material to this case was, a licensed real estate broker in the. State of Florida, licenses #0262612 and #0264641, for Auction World, U.S.A. Inc., 5245 Ramsey Way #9, Ft. Myers, Florida 33907 and Shamrock Realty & Associates, Inc., 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. Shamrock Realty & Associates, Inc. is, and at all times material to this case was, a corporation registered as a real estate broker in the State of Florida, license #0264446, 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. In 1989, Jerry R. Stephenson, a licensed real estate salesman employed by N. J. Prasser Realty, Inc., sold a parcel of land to Darryl and Pamela B. Atherly, who resided out of state, and intended to construct a residence on the property and move to Florida. A commission was paid on the sale of the property. Mr. Stephenson also in 1989, and subsequent to the Atherly's purchase of the property, introduced the Atherly's to Dennis A. O'Key, a builder. Mr. Stephenson was still employed by N. J. Prasser Realty at the time of the introduction. Mr. O'Key and the Atherly's discussed the costs of building a home for the couple. The evidence fails to establish the existence of any agreement between Mr. O'Key and Mr. Stephenson related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house, and further fails to establish the existence of any like agreement between Mr. Stephenson and the Atherly's, although there is some evidence that the Atherly's, longtime friends of Mr. Stephenson, did suggest that Mr. Stephenson would be compensated for his assistance. At some time subsequent to the Atherly's visit with Mr. O'Key, O'Key ceased building homes. Upon the next contact with the Atherly's, Mr. O'Key referred the couple to R. Fry Builders, Inc., another local home builder. The evidence fails to establish the existence of any agreement between Mr. O'Key, Mr. Fry or the Atherly's related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house. On February 28, 1990, the Respondent applied to have Mr. Stephenson's license transferred to Two Sisters real Estate, Inc., where Respondent was employed. The licensure transfer became effective on March 8, 1990. On or about April 10, 1990, the Atherly's entered into a contract with R. Fry Builders, Inc., for the construction of the Atherly home. The contract makes no provision for the payment of any commission or referral fees. The home was built and the Atherly's took occupancy of the structure. No commission or referral fees were paid by either Mr. Fry or the Atherly's. On or about July 12, 1990, by certified letter, the Respondent contacted R. Fry Builders, Inc., and demanded payment of $4,077.50 as a referral real estate commission. The letter provided that a claim of lien would be filed if no response was received within ten days from the letter's date. The Respondent received no payment from R. Fry Builders, Inc. On or about July 27, 1990, the Respondent placed a claim of lien on the Atherly's home. The lien was recorded in the Lee County, Florida official records book. The Respondent filed the lien for the purpose of collecting the referral commission from the Atherly's. On or about April 9, 1991, the Respondent released the lien and filed the release of lien in the Lee County, Florida official records book. The lien was released after Mr. Stephenson discussed the matter with the Respondent and urged him to withdraw the lien. The Respondent collected no referral commission from the Atherly's. The Respondent has filed no civil action to collect any fees or commissions due from any of the parties material to this case. There has been no judgement entered which would entitle the Respondent to have placed a lien on the Atherly's home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the license of Respondent Angelo Ciciretti for a period of one year and imposing a fine of $1,000 to be paid within thirty days of rendition of the Final Order in this case. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX CASE NO. 91-3257 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esq. Department of Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 W. Robinson Street Orlando, Florida 32801-1772 Angelo Ciciretti Shamrock Realty & Associates, Inc. 812 East Cape Coral Parkway Cape Coral, Florida 33904
Findings Of Fact On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months. RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT 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 19th day of February,1982 COPIES FURNISHED: Theodore J. Silver Esquire 9445 Bird Road Miami, Florida 33165 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact At all times relevant hereto, respondent, Landmark Real Estate and Investment Exchange, Inc. (Landmark), was a corporation licensed as a broker. It holds license number 0170938 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Respondent, Stephen P. McCrady, was a licensed real estate broker having been issued license number 0227524 by petitioner. McCrady was also the qualifying broker and officer of Landmark. License renewal fees have apparently not been paid by respondents since 1984 and their licenses are accordingly considered to be inactive. However, such licenses can be reactivated by respondents paying the required fees and completing any necessary continuing education requirements. At the present time, McCrady's license has a status of "pending litigation" because of the instant proceeding. On October 28, 1983, the Division (then the Florida Real Estate Commission) entered a Final Order against respondents in which respondents were reprimanded and ordered to pay a $500 fine within thirty days from the date of order. This fine was never paid. On April 3, 1984, respondent McCrady filed a chapter 7 petition in the United States Bankruptcy Court for the Southern District of Florida. On September 17, 1984, that Court entered a Discharge of Debtor order which released the debtor (McCrady) "from all dischargeable debts" and declared null and void certain other debts. The order further provided that "all creditors who [sic] debts are discharged ... (or) whose judgments are declared null and void ... are hereby enjoined from commencing, continuing or employing any action, process or act to collect, recover or offset any such debt as a personal liability of the debtor." Respondent Landmark did not file a petition nor was it a party to McCrady's bankruptcy proceeding. When the agency Final Order was entered, McCrady could not afford to pay the $500 fine. However, he telephoned a Division attorney and asked if he could pay the fine by installments. He was told he could not do this. Shortly afterwards he filed for personal bankruptcy. It was his impression that the bankruptcy proceeding discharged all debts, including the $500 administrative fine. McCrady did not advise the Division that he had filed for bankruptcy until after the complaint in this proceeding had been filed. McCrady intends to again use his real estate license in the future. Because of serious personal and financial problems, he has not used the license for several years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Rule 21V-10.31, Florida Administrative Code, and Subsection 475.25(1)(e), Florida Statutes (1985), and that they each be required to pay $250 within thirty days from date of the final order in this proceeding to satisfy the terms of the Final Order previously entered on October 23, 1983. Otherwise, their licenses should be revoked. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1145 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. COPIES FURNISHED: Susan J. Hartman, Esquire Post Office Box 1900 Orlando, Florida 32802 Ronald R. Rogowski, Esquire 628 S.E. 5th Avenue Ft. Lauderdale, Florida 33301 Mr. Harold R. Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times pertinent to the matters involved herein; Petitioner held Florida real estate salesman's license number 0403224. Her license was listed with Century 21 ACR Equities; Inc., 4222 W. Fairfield Drive, Pensacola; on May 25; 1983. On March 4, 1985, Respondent listed her license with Century 21; Five Flags Properties; Inc., in Pensacola, without terminating her listing with ACR Equities. On March 22, 1985, Five Flags terminated her listing with that firm and on April 30; 1985, ACR Equities terminated her listing with that firm. On May 14; 1985; Respondent applied for a change of status to list her license with Old South Properties; Inc., in Pensacola. That firm terminated the association on July 9, 1985. On March 19; 1985; Emmison Lewis and his wife; Lillie Mae signed a handwritten sales agreement prepared by Respondent for the purchase of a piece of property located in Escambia County; for $33,000.00. The Lewises gave her a deposit of $500.00 by check made payable to Respondent and which bears her endorsement on the back. This check was made payable to Respondent because she asked that it be made that way. Several days later; Respondent came back to the Lewises and asked for an additional $1,500.00 deposit. This was given her, along with a rental payment of $310.00; in a $2,000.00 check on March 29, 1985. Respondent gave the Lewises the balance back in cash along with a receipt reflecting the payment of the $1,500.00. On that same date; Respondent had the Lewises sign a typed copy of the sales agreement which reflected that both the $500.00 deposit and the additional $1,500.00 were due on closing. This typed copy was backdated to March 19; 1985. Both the handwritten and typed copies of the sales agreement bear the signature of the Respondent as a witness. The sale was never closed and the Lewises have never received any of the $2;000.00 deposit back. On about four different occasions, Mr. Lewis contacted Respondent requesting that she refund their money and she promised to do so, but never did. They did, however, receive the $310.00 rent payment back in cash approximately two weeks later. On April 26, 1985, James E. Webster and his wife Pearlie signed a sales agreement as the purchasers of real estate with Respondent. This property had a purchase price of $31,900.00. At the time of signing, Mr. Webster gave Respondent $150.00 in cash and a check drawn by his wife on their joint account for $400.00. Due to Mrs. Webster's change of mind, the Websters did not close on the property. They requested a refund of their deposit and Respondent gave the Websters a check for $400.00 which was subsequently dishonored by the bank because of insufficient funds. The Websters called Respondent at home several times, but she was always out. Calls to the broker with whom her license was placed were unsuccessful. Finally, however, Respondent refunded the $400.00 to the Websters in cash. Respondent had listed her license with ACR Equities in May, 1983. At no time while Respondent had her license with Mr. Bickel's firm did she ever turn over to him as broker either the $2.000.00 she received from the Lewises or the $550.00 she received from the Websters. Mr. Bickel, the broker, was not aware of these contracts and did not question her about them. He terminated the placement of her license with his firm because he found out that in early March 1985, she had placed her license with another firm., Both sales agreements for the Lewises and that for the Websters had the firm name of ACR Equities printed on them as broker.
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that Respondent's license as a real estate salesman in Florida be revoked. DONE and ORDERED this 23rd day of May, 1986, in Tallahassee; Florida. ARNOLD H. POLLOCK, 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 23rd day of May, 1986. COPIES FURNISHED: Arthur R. Shell, Esquire p. O. Box 1900 Orlando, Florida 32802 Ralph Armstead; Esquire P. O. Box 2629 Orlando; Florida 32802
