Findings Of Fact At all relevant times, the respondents Russell T. Gorgone and Russ Gorgone, Inc., were registered Florida real estate brokers. On July 11, 1972, an exclusive listing agreement was entered into between Russ Gorgone, Inc., as broker, and Jack Vollhoffer, as owner of the subject property, for the purpose of securing a purchaser for Vollhoffer's duplex located at 4252 and 4254 Armeda Avenue, Ft. Myers. The terms of this agreement included that the buyer would arrange financing, that the property was to be sold for $27,500.00 if conventional financing were used or for $29,500.00 if VA or FHA financing were used; and that Vollhoffer would pay Russ Gorgone, Inc. a fee of six percent of the sales price if a purchaser were procured. (Exhibit 1) Russ Gorgone, Inc. procured a purchaser for the subject property - one Chester Lee Phillips. Russ Gorgone, Inc. prepared a deposit receipt on August 3, 1972, showing a purchase price of $29,100.00, closing costs to be paid by the seller, Mr. Vollhoffer. (Exhibit 3) At first, Mr. Vollhoffer would not accept this offer because he wanted to receive $25,500.00 as his net-net-net proceeds of the sale. Mr. Russell T. Gorgone went to Lee County Title Company and asked for an estimate of the closing costs and was assured by said title company that they would not exceed $3,600.00. He thus made the determination that the property could be purchased for $29,100.00 and Vollhoffer would still receive $25,500.00 as net-net-net proceeds from the sale. On August 4, 1972, Russell T. Gorgone wrote the Vollhoffers a letter on Russ Gorgone, Inc. stationary, stating the offer of $29,100.00, requesting the Vollhoffers to accept it with the agreement that they would receive a total of $25,500.00 as the net-net-net proceeds as the result of the sale. It was further stated that Gorgone's sales fee and other closing expenses would be absorbed out of the $3,600.00 difference between the purchase price and the proceeds to the Vollhoffers. Mr. Vollhoffer accepted the offer of Mr. Phillips, on the basis of this August 4, 1972, letter. (Exhibit 2) Based upon Russell T. Gorgone's conversations with a Mr. Cohen of the Lee County Title Company, he (Mr. Gorgone) did not believe that the closing costs would exceed $3,600.00 and believed, in fact, that they would be less than that amount. He fully intended, at the time of executing the August 4th letter, that the Vollhoffers would receive $25,500.00 as a result of the sale. At the time of the closing on September 8, 1972, there was much discussion, primarily between Gorgone and the title agent, Cohen, regarding the closing statement. (Exhibits 4 and A) Mr. Gorgone testified that he was upset with Cohen over some of the figures charged to Vollhoffer and that he (Gorgone) still intended and felt that Vollhoffer should receive net-net-net proceeds of $25,500.00. He further stated that Cohen explained the changes in the closing costs to Vollhoffer. Vollhoffer testified that nobody explained the discrepancies to him and that he did not pay much attention to these discussions because it was not his business what the closing costs were and he was not concerned with them. His only concern was receiving his $25,500.00. While Vollhoffer testified that Gorgone did not tell him he did not have to close at the price discussed, he stated that he understood that he did not have to sell. Mr. Gorgone testified that he gave Vollhoffer the option of not signing the contract. Vollhoffer did sign the closing statement, which gave him net-net-net proceeds of $24,943.49. Mr. Vollhoffer testified that he signed because Mr. Gorgone had become hostile with him and because Gorgone had other property to sell for him and he therefore did not wish to antagonize him. Mr. Gorgone testified that he did not become hostile or abusive toward Vollhoffer at the closing and Mr. Phillips, the purchaser, testified that he did not observe Gorgone becoming hostile toward anyone. Phillips also testified that Vollhoffer did not, at the time of the closing, appear to be unhappy with the transaction. Some time after the closing, Mr. Vollhoffer made demand upon Mr. Gorgone for the difference between $25,500.00 and $24,943.49. Mr. Gorgone denied owing Vollhoffer anything.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the information against the respondents be dismissed. Respectfully submitted and entered this 7th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones, Esquire 299 Lee Road Winter Park, Florida 32789 Allan M. Parvey, Esquire GOLDBERG, RUBINSTEIN & BUCKLEY, P.A. Post Office Box 2366 Fort Myers, Florida 33902 ===============================================================
Findings Of Fact Robert Hartnett was at all times pertinent to this complaint a registered real estate broker. Bill Dew and Dave Allman sought to lease a specific piece of real property for business purposes. In this regard they contacted William Hartnett, who had previously leased a piece of real property which included the specific piece of property Messrs. Dew and Allman desired to lease. Messrs. Allman and Dew entered into an agreement to sublease a portion of the Hartnett leasehold. A contract was prepared by William Hartnett and delivered by Robert Hartnett to Dew and Allman, who executed the contract. Although there is conflicting testimony, the testimony of Robert Hartnett is accepted as the more accurate explanation of his role in the transaction. Robert Hartnett had no interest in William Hartnett's business venture or in the leasehold, and did not appear or function as a real estate broker in this transaction. The owner of the property, Mr. Grossinger, testified he agreed to lease the property to William Hartnett. Hartnett was permitted to occupy the premises and paid rent. William Hartnett prepared a written lease which was not signed by the owner, Mr. Grossinger. Grossinger terminated the agreement when Hartnett subleased the premises to Allman and Dew without notifying him and instituted legal action to evict William Hartnett. Under the circumstances, there was an oral lease between Hartnett and Grossinger. Messrs. Dew and Allman made arrangements with contractors to make modifications to the subleased premises, and the modifications were begun. These modifications were in part the cause for the owner terminating the lease with William Hartnett. Messrs. Dew and Allman or their agents did have occupancy of the premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against Respondent Robert Hartnett. DONE and ORDERED this 14th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Louis M. Jepeway, Esquire 619 Dade Federal Building 101 East Flagler Street Miami, Florida 33131
The Issue Whether J.C. Hoffman violated the provisions of Section 475.25(1)(a) and Section 475.25(2), Florida Statutes.
Findings Of Fact J. C. Hoffman also known as Jean Hoffman was a registered real estate salesman whose certificate expired September 30, 1974. On March 31, 1975, Hoffman reapplied and was recertified by the Florida Real Estate Commission. During the intervening period, Hoffman continued to be registered by the Commission. In late 1974, Jean Hoffman showed David W. Jarrett two lots which Jarrett subsequently offered to purchase. Jarrett gave Hoffman $1,500 as a deposit receipt on this transaction in two checks, one for $300 and the other for $1,200. These checks were received into evidence as Exhibit 2. The contract entered into by Jarrett was received into evidence as Exhibit 1. Because Hoffman was not present at the hearing, Jarrett identified a picture of Hoffman taken from the files of the Florida Real Estate Commission as the individual who he had known as Hoffman. This picture was received into evidence as Exhibit 4. After entering into this transaction, Jarrett waited some time and when a closing did not take place, attempted to contact Hoffman. He was unable to contact Hoffman and unable to obtain the return of his $1,500. Jarrett also identified a letter from Barbara E. Green, the owner of the property, which he had received in reply to a letter to her concerning this transaction. This letter was received as Exhibit 3, and indicates that Green had rejected the offer. All Jarrett's efforts to obtain return of his money from Hoffman failed and the money and Hoffman have disappeared.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of J. C. Hoffman also known as Jean Hoffman. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 J. C. Hoffman % Patrick N. O'Keef Dist. Road 5-7837 and N. Hwy 452 Lake Yale Village Leesburg, Florida 32748
Findings Of Fact During times material to the allegations of the administrative complaints filed herein, the Respondents were registered real estate salesmen in the employ of Theodore Dorwin, a registered real estate broker, and at all times material herein, Darwin was the active firm member broker for Intermart, Inc. Raymond Lewis, a salesman employed by Dorwin during the period December, 1975 through mid February, 1976, as a real estate salesman, was initially employed by Florida Landowners Service Bureau. During mid February, 1976, he testified that the name Florida Landowners Service Bureau was changed to Intermart, Inc., and that approximately during this period, he left the employ of Intermart, Inc. He testified that the offices were situated on northwest 79th Street, which consisted of a large room containing six cubicles where salesmen manned the telephones in the cubicles during the hours of approximately 6:00PM through 10:30PM during week days and during the early afternoon and evening hours on weekends. Salesmen were given lead cards which were apparently compiled from the county tax rolls from which a list was given containing out of state landowners. Employees, based on a "pitch" card called out of state land owners to determine their interest in selling their property. He described the procedure as a "front" when an out of state landowner was called to determine interest in selling their land. The "close" procedure was a method whereby those property owners who had displayed some interest in selling their properties were mailed a packet of materials which, among other things, contained a listing agreement. Salespersons were compensated approximately $100 to $125 for each listing secured by an executed listing agreement which in most instances represented approximately one third of the listing fee. During the course of a normal day, salesmen would contact approximately thirty landowners and they would be given estimates of the prospective selling price of their land based on the location of the property and the length of time that the owner had held it. The testimony of Lewis, which is representative of that given by later witnesses including Jeffrey Barker, August Graser, David Cotton and Henry Halar (all salesmen employed by Dorwin) reveals that property owners were called to determine their interest and if interest was noted, follow-up calls would be made after a packet of materials was sent to interested landowners. After a listing arrangement was obtained, salesmen were compensated by payment of an amount representing approximately one-third of the listing fee. In the case of a listing fee obtained by two or more salespersons, the fee (commission) was divided according to the number of salespersons instrumental in obtaining the listing. Each salesman who testified indicated that they made no guarantee that a sale would be consummated within a definite period nor were they familiar, in any particulars, with the brokerage efforts to sell the properties of owners who listed their property with Intermart. Theodore Dorwin, the active firm member broker for Intermart, Inc., was subpoenaed and testified that he had no copies of the records which were subpoenaed showing the operations of Intermart, Inc. In this regard, Raymond Lewis also testified that he had no corporate records respecting Intermart. Both witnesses testified that all corporate records of Intermart had been subpoenaed and were in the custody of the Attorney General for more than one year. Dorwin refused to give any testimony respecting the operational workings of Intermart, Inc., based on fifth amendment self incrimination grounds. The Commission's counsel took the position during the course of the hearing that Mr. Dorwin had waived any and all fifth amendment rights or privileges by virtue of having personally testified in a similar matter before the Florida Real Estate Commission in a proceeding undertaken to revoke or suspend his license as a real estate broker. Having voluntarily taken the stand in that proceeding, the Commission concludes that he is not now entitled to any fifth amendment protections. As evidence of Mr. Dorwin's having voluntarily taken the stand in the prior proceeding, excerpts of the testimony from that proceeding was introduced into evidence. (See FREC Exhibit number 8). Having considered the legal authorities and the arguments of counsel, the undersigned is of the opinion that testimony given by a party in a separate proceeding to which the Respondents were not party to and of which the Respondents had no notice of cannot serve in lieu of evidence on which findings of fact can be based to substantiate allegations pending in the instant case. To do so, would possibly leave open the door for highly prejudicial and damaging testimony to which the Respondents here had no opportunity to rebut, cross examine or otherwise explain, all of which is inherently destructive of their basic rights, fairness and fundamental due process. The cases of Hargis v. FREC 174 So.2d 419 and Vann, 85 So.2d 133 are not deemed inapposite to the conclusion reached here. The fact that the State's Attorney General is currently conducting an investigation into the operations of Intermart makes clear that the possibility of criminal action or other sanctions exist (e.g. tax problems). For these reasons, I conclude that Dorwin's testimony in a prior proceeding, amounts to no waiver of his constitutional privilege. For these reasons, exhibit number 8 will not be considered as evidence herein. Having so concluded, the record is barren of any evidence, hearsay or otherwise, which would tend to establish in a competent and substantial manner, that the Respondents herein had engaged in conduct alleged as violative of Chapter 475.25, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the administrative complaints filed herein be dismissed in their entirety. RECOMMENDED this 18th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated: At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation. First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving, setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000. On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission: This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976. I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ". * * * We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available. On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret. Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. COPIES FURNISHED: Kenneth M. Meer, Esquire 400 West Robinson Avenue Orlando, Florida 32801 Mr. George W. Pinkerton 2833 East Highway 92 Lakeland, Florida 33801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-2292 GEORGE W. PINKERTON, Respondent. /
The Issue Whether Herbert Lane is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Herbert Lane is a registered real estate salesman. Herbert Lane was employed by International Land Services Chartered, Inc. He was paid by International Land Sales Chartered, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Herbert Lane as a registered real estate salesman. DONE and ORDERED this 7th day of April 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire and Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Herbert Lane 3890 Swenson Apts. No. 503 Las Vegas, Nevada 89109 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-208 PROGRESS DOCKET HERBERT LANE, NO. 2960 DADE COUNTY Respondent. /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found; At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps). On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein. Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8. Adopted in Findings of Fact 2 and 3 but clarified. Adopted in Findings of Fact 4, 5 and 6 but clarified. Adopted in Finding of Fact 7. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph 4 is adopted in Finding of Fact 8. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph 5 is adopted in Findings of Fact 7 and 9. Adopted in Findings of Fact 8 and 10 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 9. COPIES FURNISHED: Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 William J. Haley, Esquire Post Office Box 1029 Lake City, Florida 32056-1029
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973." As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation" was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did." Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.
Recommendation Based upon the findings of fact and conclusions of law recite above, it is recommended that: the registration of respondent Charles Shane be suspended for a period of three (3) months; and the charges relating to respondent Richard King be dismissed. Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION THOMAS M. MURRAY, Petitioner, vs. PROGRESS DOCKET NO. 2709 DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING, Respondents. /
The Issue Whether or not Respondent's registration as a real estate salesman should be revoked for violation of Section 475.25(2), F.S. The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense if he so desired. It was also explained to the Respondent that he could testify in his own behalf, that he is not required to do so, and that if he did so testify, he could be cross-examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf.
Findings Of Fact 1. Counsel for Petitioner introduced into evidence Respondent's application for registration as a real estate salesman (Petitioner's Exhibit 1) and rested his case. No evidence was introduced in support of the allegation against the Respondent.
Findings Of Fact Documents introduced into evidence revealed that the Respondent Jeremiah C. Clarke is a registered real estate broker and Clarke Real Estate is an entity registered as a partnership broker and authorized to act as such with the Commission. On or about September 15, 1975, Jerry Kent, a salesman with Respondent, Clark Real Estate, obtained an oral open listing from Esther Braverman on a condominium unit denominated as "Apartment B-804, 1111 Crandon Boulevard, Key Biscayne, Florida." Pursuant thereto, salesman Kent showed the condominium unit to Jacques Benoist and Jeanine Benoist, his wife, who executed a deposit receipt contract to purchase a condominium unit on September 27, 1975. Esther Braverman, the seller, executed the contract during October of 1975. The deposit receipt contract provided for a $10,000 earnest money deposit to be held in the escrow account of the law firm of Snider, Young, Barrett, and Tannenbaum, P.A., attorneys for seller Braverman. Said deposit was made on September 27, 1975, by delivering a check to attorney Bruce L. Hollander, a member of the firm, who deposited the deposit in the firm's escrow account. (See Commission's Exhibit No. 9). The deposit receipt contract also obligated the seller, Esther Braverman, to pay Respondent Jeremiah C. Clark a commission of $7,875. Specifically, the contract provides that "I, or we, agree to pay to the above assigned broker a commission for finding the above signed purchaser for the above described property, the sum of $7,875 . . . ." Closing took place on January 19, 1976, at the offices of Washington Federal Savings and Loan Association, Miami Beach, Florida, from whom the Benoists had obtained financing for the purchase. At the closing on January 19, 1976, Esther Braverman signed and delivered a warranty deed made out to Jacques Benoist and Janine Benoist, transferring the property to the Bravermans. The warranty deed was recorded with the clerk of the Dade County Circuit Court by the lending institution, Washington Federal Savings and Loan Association. (See Respondent's Exhibits 1 and 2) At the closing, Jeremiah Clark was given a check representing the commission to Clarke Real Estate in the amount of $7,875. Thereafter, Jerry Clarke was requested by the lending institution to hold the funds in escrow until the bank dispursed the mortgage proceeds. He was then told that the mortgage proceeds would be paid within the following week. Respondent Clarke agreed, pursuant to a request from the seller's attorney, Bruce Hollander, to hold the commission check until January 27, 1976, without depositing same. Mr. Clarke held the commission check until January 29, 1976, as agree. On that day, he dispursed the proceeds to salesman Jerry Kent and the balance was credited to Clarke Real Estate. The mortgage funds were never disbursed because the lending institution could not obtain a quit-claim deed from the seller, Esther Braverman's former husband and therefore in the lending institution's opinion, the defect was not discovered until after the closing. On May 6, 1976, attorney Hollander acting for his law firm and the seller sent Respondent Jeremiah C. Clarke and Respondent Clarke Real Estate a letter stating that the mortgage proceeds had not been disbursed by the lending institution and requested a demand for the commission check. The Commission takes the position that the closing which occurred on January 19, was an escrow closing and that the Respondent Jeremiah Clarke was not authorized to disburse the proceeds from the commission check until notification that the mortgage proceeds were disbursed by the lending Institution. The Respondents, on the other hand, took the position that their only obligation was to find a purchaser who was ready, willing and able to complete the transaction, which acts were consummated by their salesman, Jerry Kent. Based on my examination of the document introduced herein, and the testimony adduced during the hearing, the undersigned concludes that the Respondent's position that it was entitled to receive the commission monies here in dispute has merit. Although the Commission takes the position that an escrow closing occurred, an escrow has been defined as a written instrument which by its term imports a legal obligation and which is deposited by the grantor, promisor, or obligor, or his agent with a stranger or third party to be kept by the depository until the performance of a condition or a happening of a certain event and then to be delivered over to the grantee, promisee, or obligee. It cannot be seriously contended herein that the Respondent Clarke was acting as an escrow for himself when consideration is given to the above definition of an escrow. See Love v. Brown Development Company, 131 So. 144. It is further essential to an escrow that delivery of the instrument be to a stranger or to a third person, that is, to one who is not a party to the instrument, or a person so free from any personal or legal identity with the parties to the instrument as to leave them free to discharge his duty as a depository to both parties without involving a breach of duty to either. For example, a deed delivered to a grantee cannot be regarded as held in escrow. Here, Respondent Clarke was in no way acting for anyone other than himself or as agent for his salesman, Jerry Kent, both of whom had a direct stake in the commission proceeds. Additionally, upon examination of the deposit receipt contract, the broker became entitled to the commission proceeds when the buyer (purchaser) was found. Additionally, and as an aside, it was noted that the lending institution in fact recorded its mortgage the day following the closing This would lead any examiner of the public records to believe that the lending institution was satisfied with the title as conveyed on the closing date. It was further noted that the Respondents had no indication that there was a problem with the title until approximately five months following the closing. Finally, the undersigned received a letter from attorney Lipcon dated August 1, 1975, advising that the civil case which was pending before the Dade County Circuit Court involving similar issues as posed herein before the commission had been fully and finally settled. There was a stipulation for dismissal signed by attorneys for each of the parties including the attorney for the firm that made the complaint against the Respondents stating in essence that the monies paid to Respondent Clarke and which was retained by him as full and final settlement of his brokerage commission were to be retained by Respondent Clarke as final payment of his commission in connection of the sale of the subject condominium. For all of these reasons, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the Findings of Fact and Conclusions of Law as found above, it is hereby recommended that the complaints filed herein be dismissed in their entirety. Recommended this 23rd day of August, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
