Findings Of Fact Respondent Charles N. Lyle is now and was at all times referred to in these Findings Of Fact a licensed real estate salesman having haen issued licensed number 0340311. Between March, 1982 to July, 1982, respondent was licensed as a real estate salesman and in the employ of Pardee-Chappell Realty and Investment Corporation. In May, 1982, respondent entered into an oral rental management agreement with Edward Ingersoll to rent and manage certain residential property located at 2941 Northeast Third Street, Ocala, Florida for a management fee of $15.00 per month, said fee to be paid directly to respondent. In connection with the management agreement, respondent secured a tenant and collected rent each month, depositing the rent into a special account at the First Marion Bank of Ocala maintained in the names of Sharon Lyle, respondent's wife, and Edward Ingersoll, the owner of the property. From approximately May, 1982 to February, 1983, respondent was compensated $15.00 per month as a rental management fee from Edward Ingersoll. Respondent did not deliver the rental payments collected and compensation received to his employing broker, and respondent's employing broker, Pardee- Chappell Realty and Investment Corporation, had no knowledge of and did not consent to respondent's actions. Respondent engaged in the transactions in such a way as to conceal from Mr. Ingersoll and the lessee of Ingersoll's property his association with pardee-Chappell Realty and Investment Corporation; likewise, respondent engaged in the transactions in such a way as to keep Pardee-Chappell Realty and Investment Corporation from earning about the Ingersoll management agreement. The Administrative Complaint in this action could not be served on respondent at the address of his last broker of record because he had left the employ of his last broker of record. A later attempt to serve respondent at his residential address according to the records of the Department of Professional Regulation, 720 Northeast Thirty Street, Ocala, Florida 32670 also was unsuccessful. Thereafter, a notice was published in a newspaper of general circulation in the Ocala area, and respondent telephoned the Department of Professional Regulation from Atlanta, Georgia. Respondent asked that the Administrative Complaint be mailed to him at 720 Northeast Thirty Street, Ocala, Florida 32670. Approximately one month later, on or about March 1, 1984, respondent signed his Election Of Rights acknowledging receipt of a copy of the Administrative Complaint and requesting a formal hearing. Respondent's Election Of Rights was received by the Florida Real Estate Commission on March 6, 1984. Subsequently all notices of hearing have been returned undelivered, and subsequent efforts to contact respondent by telephone and personally by Department of Professional Regulation investigators have been unsuccessful.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission revoke the license of respondent, Charles N. Lyle. RECOMMENDED this 4th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 4th day of September, 1984. COPIES FURNISHED: Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles N. Lyle 720 N.E. Thirty Street Ocala, Florida 32670 Harold Huff, Executive Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Fred Langford, Esquire 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact At all times material to this proceeding, the Respondent Bruce R. Dowell was licensed as a real estate salesman in the State of Florida and presently holds license number 0022658. The Respondent is employed as a real estate salesman by Allen Pacetti, a licensed real estate broker doing business as Pacetti Realty Company, 49 Cordova Street, St. Augustine, Florida 32084. Mr. Pacetti has a policy within his office of permitting his real estate salespersons to assist members of their immediate families with real estate transactions without involving the office or notifying the broker. Accordingly, the Respondent did not inform Mr. Pacetti of his efforts to rent his daughter's home. The Respondent's daughter and son-in-law, Mr. and Mrs. William Kasperski, owned a residence next door to the Respondent at 202 Coquina Avenue, St. Augustine, Florida, which they rented while they were out of the state for extended periods of time. The home would be shown to prospective tenants by either Mr. Dowell, his wife or other family members depending upon who was home when prospective tenants arrived. The rental property had been leased to at least two other tenants prior to the incident which prompted the instant complaint. In March, 1980, the Respondent placed an ad in the general classified section of the St. Augustine Record advertising the Kasperski home for rent. The advertisement was seen by a co-worker of Mr. and Mrs. G. David Petty who inspected the home and recommended it to them. Mr. Petty and his wife Frances Petty subsequently examined the home and orally agreed to a monthly rental of $265. Neither the Petty nor the Respondent requested or offered to sign a written lease. The Respondent informed the Petty that the owner was not expected to return to Florida for at least a year. The Pettys made an initial payment to the Respondent of $85 which represented a pro-rata share of the March rent. The Respondent would collect the checks from the Pettys and forward them to the Kasperskies who at the time were residing in Pennsylvania. The Respondent did not receive a fee, commission or any other renumeration in return for renting his daughter's home. During the course of the Petty three-month occupancy, the Respondent became concerned over the condition of the home and alterations which were made by the Pettys without prior authorization from the owners. The Respondent conveyed his concerns over the condition of the property to his son-in-law who in turn contacted an attorney in Pennsylvania, Louis D. Poulette. Mr. Poulette informed the Pettys by letter that the lease was terminated by the owners effective July 31, 1980. The Pettys vacated on July 15, 1980, and were refunded the balance of their rent payment for July, 1980. On August 1, 1980, the Respondent readvertised the property and it was rented in September, 1980 for $265 per month.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Real Estate, enter a final order dismissing the Administrative Complaint filed against the Respondent, Bruce R. Dowell. DONE and ORDERED this day 3 of February, 1982, in Tallahassee, Florida. SHARYN L.SMITH 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 3rd day of February, 1982. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Robert F. Spohrer, Esquire ZISSER ROBISON SPOHRER WILNER & HARRIS, P.A. 303 Liberty Street Jacksonville, Florida 32202 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact Respondent, Janis K. Hinsch (Hinsch), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0350063. Hinsch was the vice president and sole qualifying broker of Respondent, Huntco of Marco, Inc., a Florida corporation, licensed as a real estate broker in the State of Florida, license No. 0222987. During all times material hereto Huntco was the owner of the Sea Oats Beach Club, a condominium located in Charlotte County, Florida. Huntco marketed the Sea Oats Beach Club under a time-share plan. The gravamen of the complaint in this case involves the sale of eight time-share units during the period of April 9, 1983 through August 11, 1983. The purchase agreements executed by the eight purchasers in question provided in pertinent part: 8. CLOSING AND TITLE At closing, . . . Seller shall deliver its warranty deed conveying fee title to the Unit Week(s) to Buyer under a plan of Interval Ownership as defined in the Declaration of Condominium . . . . The closing will be . . . not later than one (1) year from the date of this Agreement. Petitioner contends Hinsch and Huntco are guilty of violating Section 475.25(1)(b), Florida Statutes, because the deeds for the eight units were not delivered to the clerk of the court for recording within one year of the date the purchase agreements were executed. Petitioner's assertion is ill-founded. The deeds for each of the units in question were executed within 30 days of the date the purchase agreements were executed. The deeds, together with other pertinent documents, were delivered to a title company for closing and for issuance of an owner's title insurance policy. The title company, subsequent to closing, was to have forwarded the deed to the clerk for recording and, upon return of the recorded deed by the clerk, to have delivered the deed to the purchaser(s). However, the title company, through a clerical error, failed to deliver the deeds for these eight units to the clerk for recording. Respondent, upon receiving notice that purchasers had not received their deeds, immediately inquired of the title company to discern the reason, the error was discovered, and the deeds were promptly recorded. Admittedly, the deeds were not recorded within one year of the date the purchase agreements were executed, but the purchase agreements only required that the closing be held within one year. There is no evidence to suggest that the deeds in question were not delivered to the title company, or that these transactions were not closed, within one year of the date the purchase agreements were executed.
Findings Of Fact Respondent, Hillard J. Meinstein, is the holder of real estate salesman license number 0174789 issued by petitioner, Department of Professional Regulation, Florida Real Estate Commission. The license was issued on September 1, 1981 and remains current as of this date. On or about March 16, 1982 the circuit court for Hillsborough County, Florida entered an order accepting a plea of nolo contendere from one Hillard J. Meinstein for the offense of conspiracy to traffic in cocaine. Adjudication of guilt was withheld and Meinstein was placed on probation for 15 years and required to pay a $10,000 fine to the Hillsborough Country Sheriff's Office within one year after date of sentence. A certified copy of the order has been received in evidence as petitioner's exhibit 3. It was not disclosed whether the respondent and the defendant in the above case were the same individuals. On April 30, 1982 the supervisor for application certification of the then Board of Real Estate wrote the sheriff of Hillsborough County and requested him to search his records to determine if a Hillard Jeffrey Meinstein had been arrested by his agency for various charges including conspiracy to traffic in cocaine. The letter also indicated that Hillard Jeffrey Meinstein was an applicant for licensure as a real estate salesman. The response of the sheriff, if any, was not disclosed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ENTERED this 31st day of January, 1984, 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 31st day of January, 1984. COPIES FURNISHED: Gary Lee Printy, Esquire P. O. Box 1900 Orlando, Florida 32802 Richard J. R. Parkinson, Esquire 602 East Central Avenue Orlando, Florida 32801
Findings Of Fact Respondent Eugene Lay was registered as a business opportunity broker on March 15, 1982 by the Board of Real Estate (now the Florida Real Estate Commission). His registration was effective from January 5, 1982 until January 1, 1984. He was issued registration number 1800461. On February 12, 1982 Mr. Lay received $3,750 from Christopher Orthodox on a contract for the purchase of a business known as Personal Valet Services, Inc. The $3,750 were to be held in trust by Mr. Lay until the closing of the business purchase transaction. Mr. Lay did not put the money in a trust account but instead spent the money for his own personal business. When it later appeared to Mr. Orthodox that the transaction was not going to close, he demanded the return of his $3,750 deposit. Mr. Lay failed to return it to him and Mr. Orthodox was not able to purchase the business. His $3,750 has never been returned. On February 27, 1982 Mr. Lay obtained from Mr. Orthodox and Loretta Orthodox an additional $9,000 as a deposit to be held in trust pending their obtaining a Small Business Administration loan to purchase a business known as Starlight Creations, Inc. The purchase contract was conditioned upon the ability of the Orthodoxes to secure the loan for $121,500. They were unable to obtain the loan. When it appeared that the purchase transaction would not close, Mr. Orthodox demanded the return of his $9,000. Mr. Lay did not return the money because he had spent it for his own personal business. Subsequent to the Orthodoxes initial demand for the return of their money, Mr. Lay's wife returned $1,000 to them in cash. No further repayments have been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against Eugene Lay for lack of jurisdiction. DONE and RECOMMENDED this 29th day of February, 1984, in Tallahassee, Florida, MICHAEL PEARCE DODSON 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 29 day of February, 1984.
The Issue The issue posed for decision herein is whether or not the Petitioner failed to account, or deliver, upon demand, funds which he was not entitled to retain, concealed escrow monies, and is otherwise guilty of misrepresentation, false promises, and false pretenses.
Findings Of Fact Respondent, Stephen Miko, is a licensed real estate salesman having been issued license number 0059972 during times material herein. On July 6, 1977, Respondent accepted a check for the sum of $1,000 from Franz Graf Zichy as a partial deposit to be applied toward the purchase of real property owned by the Respondent. The property involved was a two-story residence located at 1022 Van Buren Street, Hollywood, Florida. On July 6, 1977, Respondent gave Mr. Zichy a signed receipt which stated that the deposit would be refunded in the event the transaction failed to materialize for any reason whatsoever. On December 12, 1977, the Respondent accepted a second check from Mr. Zichy in the amount of $4,000 as the balance of the deposit for the subject real property. On December 12, 1977, the Respondent and Mr. Zichy executed a contract of sale for the Respondent's property. On February 12, 1978, Mr. Zichy informed Respondent of his inability to secure bank financing and therefore demanded a return of his deposit. Respondent has refused to refund any of the deposit monies. The Respondent failed to place the deposit, $5,000, in an escrow account and, in this regard, placed the $5,000 in a personal bank account. This was done, despite a signed receipt dated December 12, 1977, which specified that the original $1,000 was placed in an escrow account. The Respondent did not disclose to Mr. Zichy that he (Respondent) was a licensed real estate salesman. On February 17, 1978, Petitioner transmitted to Respondent a request for admissions by certified mail. Respondent failed to answer or object to said request for admissions. The effect of Respondent's failure to answer or object to the request for admissions is that those matters contained in the request for admissions are deemed to be admitted and conclusively established. Rule 1.370, Florida Rules of Civil Procedure. By Respondent's failure to respond to the request for admissions, all matters alleged in the Administrative Complaint filed herein were conclusively established. Further, during the subject hearing herein, Respondent acknowledged that the account in which he placed the subject deposit was a savings account and was not an escrow account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: 1. That the Respondent's real estate license be REVOKED. RECOMMENDED this 12th day of May, 1983, 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 12th day of May, 1983.
The Issue The ultimate issues in this proceeding are whether the Respondents have violated provisions of Florida Statutes pertaining to the licensing of real estate brokers and salesmen, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken by the Florida Real Estate Commission. The Administrative Complaint includes twenty-six separate counts. Counts I through XVIII contain allegations that Respondents employed various persons who were not licensed as real estate salesmen or brokers to perform duties that can only be performed by licensed persons. These counts allege violations of the provisions of Sections 475.01(3), 475.25(1)(h), and 475.42(1)(c), Florida Statutes. In Counts XIX through XXVI, various allegations of specific acts of misrepresentation or dishonest dealing are alleged. The Petitioner contends that the facts alleged in these counts constitute violations of the provisions of Sections 475.25(1)(a), (b), and (e), and 455.227(1)(a), Florida Statutes. The Respondents contend that the duties performed by employees as alleged in Counts I through XVIII do not constitute activities of real estate brokers or salesmen, and that the persons were not required to be licensed. The Respondents contend that they were not guilty of any fraud or misrepresentation as alleged in Counts XIX through XXVI.
Findings Of Fact The Respondents Jane A. Foster and Benjamin C. Foster have, at all times material to this proceeding, been licensed by the Petitioner as real estate brokers. The Respondent Guardian Association, Inc., has at all material times been licensed as a corporate real estate broker. The Respondents Jane A. Foster and Benjamin C. Foster were at all material times the qualifying brokers for the Respondent Guardian Association, Inc. During the period from approximately 1978 through 1981, the Respondents were engaged in the business of selling interval ownership shares in a condominium project located in Fort Myers Beach, Florida. The Respondents utilized telephone solicitations in order to generate sales. Individuals were employed by the Respondents to contact potential customers and to induce them to visit the project. During the period beginning January 1, 1981, and ending August 31, 1981, the Respondents employed the following persons as telephone solicitors: Susan Simcic, Tammy Steffans, Sandy Pleak, Carolyn Kim Pressley, Sharel Royal, Betty Price, and Sandy Liese. The telephone solicitors were instructed to call selected telephone numbers, and during an average workday might call as many as one hundred persons. The solicitors were directed to read a script which advised the person they reached that they were a sweepstakes winner and that their prize could be claimed by making and keeping an appointment to visit the resort. An appointment would be made for the person called to visit the resort. The person would be advised that this was part of an advertising promotion. No details concerning interval ownership, or the resort itself were discussed. The solicitors were given definite instructions not to discuss any specific aspects of the promotion beyond the script. After the telephone conversation terminated, the prospective customer would be mailed a packet of materials describing the resort. When the potential customer arrived at the resort, they would collect the prize that they won in the so-called sweepstakes and be given a sales presentation regarding interval ownership and the resort. The persons who made the sales presentation at the resort were licensed real estate brokers or salesmen. The specific script that the telephone solicitors read was changed periodically. The substance of the script, however, remained unchanged during the period from January 1 through August 31, 1981. A representative script was received into evidence at the hearing. The script is attached to this Recommended Order as Appendix "A" and is hereby incorporated into these Findings of Fact as fully as if it were set out verbatim herein. None of the telephone solicitors identified above were licensed by the Petitioner as real estate brokers or real estate salesmen. This fact was well known to the Respondents. The solicitors were not instructed to identify themselves as employees of a real estate broker during telephone solicitations. Instructions given the telephone solicitors were given either directly by the Respondents Jane A. Foster and Benjamin C. Foster, or at the direction of the Respondents. The telephone solicitors were compensated at an hourly rate. In addition, the solicitors received two dollars for each person they solicited who kept the appointment to visit the resort. The telephone solicitors were instructed to represent themselves in telephone conversations with prospective purchasers as "the Public Relations Director of the Guardian Association." This title was clearly a misleading one and was designed to persuade prospective purchasers that the person calling them had some special position of authority. In fact, the telephone solicitors directed nothing and were involved in public relations only in the sense that they were making telephone calls to members of the public. The telephone solicitors were instructed to represent to prospective purchasers that the prospective purchasers were winners in a sweepstakes. If the prospective purchasers "qualified," i.e., were married and between the ages of twenty-five and sixty-two, they were advised that they won their choice of a three-day, two-night vacation at one of several well-known vacation areas, and that they also would be eligible to win prizes ranging from cameras to microwave ovens. The potential customers were not actually winners of any sweepstakes or game of chance. All prospective purchasers solicited were identified as "winners." There was no game of chance or drawing which resulted in their being selected. Offering gifts such as the vacation and other prizes as winnings, rather than merely gifts offered to induce them to visit the resort, was designed to get prospective customers to the resort to receive the sales presentation. During the telephone solicitation, the solicitors were instructed to represent to prospective customers that they would be receiving printed matter relating to the resort and instructions for claiming the prizes. Possession of the printed matter was necessary in order for the prospective customer to claim the prizes. Respondents instructed the telephone solicitors to note whether the person they reached appeared to be a black person or a Hispanic person. If the solicitor believed that to be the case, the solicitor was to make a special notation on the solicitation form. Materials were not mailed to such persons despite representations made during the telephone solicitation that the person had won a prize and would be receiving pertinent materials. The motivation for these instructions was apparently not overt racial hostility, but rather a feeling on the part of Respondents that black and Hispanic persons were likely to be of lower income and thus not viable prospective customers. No evidence was offered from which it could be concluded that Maureen Downey, a person identified in the Administrative Complaint, was employed by the Respondents. No evidence was offered at the hearing from which it could be concluded that any prospective purchaser was injured by the misstatements made during telephone solicitations other than that persons who should have been eligible to receive "prizes" were not mailed materials which they would have needed in order to collect the "prizes."
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 DENYING Charles A. Pantino's application for licensure as a real estate salesman. RECOMMENDED this 29th day of October, 1980, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
