Findings Of Fact While working as a real estate salesman for Gus Galloway Realty, Inc., in Ocala, Florida, Respondent was responsible for collecting monthly rent from Rose Marie Schmidt and her husband. The Schmidts rented a house belonging to one Betts and managed by Gus Galloway Realty, Inc. Sometime before July of 1977, Mrs. Schmidt was on her way to pay her rent when she met Respondent in the parking lot of Gus Galloway Realty, Inc. Respondent accepted fifty dollars in cash from Mrs. Schmidt as that month's rent, but gave her no receipt for the money. More than a week later, Respondent brought fifty dollars to the office of Gus Galloway Realty, Inc.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner publicly reprimand Respondent. DONE and ENTERED this 14th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Pierre R. Palpant c/o Fred D. Wright 236 S. W. 10th Street Ocala, Florida 32670
Findings Of Fact Herbert Goldman is a registered real estate broker holding license number 0032343 issued by the Florida Real Estate Commission. Herbert Goldman maintains an office at the Robertson Building, Ocala, Florida, consisting of at least one closed room, wherein negotiations and closings of real estate transactions of others may be conducted and carried on with privacy and where the books, records, and files pertaining to the real estate transactions of Herbert Goldman are maintained. On the entry way to the Robertson Building, Ocala, Florida, there is a Building Directory and on this directory, there appears "Goldman, Herbert, Realtor, Room 214." See Exhibit 4. On the second floor of the Robertson Building, Ocala, Florida, in Room 214, Herbert Goldman maintains the office described above outside of which is a sign stating the following: "Herbert Goldman, Registered Real Estate Broker." It was admitted that the second floor of the Robertson Building is generally closed to public and that the Robertson Building is owned by the Estate of Mr. Herbert Goldman's deceased father. By direct contact with Herbert Goldman or his brother, an attorney who maintains an office on the first floor of the Robertson Building with access directly to the street, authorized persons may gain access to Herbert Goldman's office. Herbert Goldman engages in an active real estate brokerage primarily consisting of site location for shopping centers and similar developments for clients throughout the United States. Herbert Goldman does not solicit nor desire to participate in a general real estate practice. Goldman makes no pretense that he maintains an office in Room 214 of the Robertson Building, which is at all times staffed and which is an office in the conventional sense. However, Goldman does maintain an active brokerage practice visiting clients in various portions of Florida and in other states in the course of his brokerage business. Due to the nature of transactions which Goldman is involved in, all of the closings are conducted in the business offices of the firms with which he does business or of their attorneys. The foregoing Findings of Fact are substantially identical to the general proposed findings submitted by Goldman.
Recommendation At hearing, the forthrightness of Mr. Goldman was evident, and it was clear that he did not desire to be uncooperative with the Commission or to flaunt its rules. His concern was that to maintain an accessible office would create more problems than it would solve. He felt that such an office would appear to be closed and "inactive", and to avoid this problem he would have to hire office staff to advise people he did not handle general real estate. This would be an unnecessary expense for him and would possibly create misunderstandings. It was, therefore, simpler to maintain his office where it has been for many years, from where, although inaccessible to the public, he centers his brokerage activity. Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no disciplinary actions be taken. In view of Goldman's general cooperativeness and the fact that he is not totally pleased with the security of his office, it might be useful and beneficial for the Commission to examine with Goldman alternatives which would be acceptable to all concerned and would result in office accommodations which re more conventional and secure but which would not prevent a confusing picture to the public. DONE and ORDERED this 25th day of July, 1977, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mary B. Steddom, Esquire O'Neill & Steddom Post Office Box 253 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, vs. PROGRESS DOCKET NO. 3123 MARION COUNTY HERBERT GOLDMAN, DOAH CASE NO. 77-443 Defendant. /
Findings Of Fact Count I Respondents North American Realty, Inc. and Jorge G. Mendoza have since at least 1972 been licensed real estate brokers in Coral Gables, Florida. Until May 18, 1979, a salesman named Alfredo Colli was an associate. In July 1977, without Respondents' knowledge or approval, Colli advertised in the newspaper that North American Realty had a duplex for rent and included its telephone number. However, CalIi was handling the rental individually for the owner (Joseph Pelaez), who was a friend living in Puerto Rico; Colli had also assisted Pelaez in buying the duplex involved. The Complainant responded to the ad and on July 15, 1977, signed a Coral Gables Board of Realtors form lease for one year commencing August 1, 1977, at $325 a month, paying $200 security damage deposit. According to the language typed in the blank space provided, Lessee was to make monthly checks "payable to E. Gonzales owner agent and to mail them to C/O North American Realty, Inc." The agreement also provided that repairs were to be paid by the Lessee and a brokers commission of $325.00 to be paid to North American. The lease was signed by Alfredo Colli (Agent) and Kathleen Battah, witnessed by Colli and another person. Payment for the first month's rent and the security deposit was made by check, however, the payee's name is unknown. The security deposit was forwarded by Colli to owner Pelaez but how the remaining monthly payments were handled, except one to Colli as his commission, is unknown. During the discussion of the lease arrangement, Colli orally advised Ms. Battah that many repairs would be made and a new refrigerator would be provided, none of which was done. At the end of the lease, Ms. Battah's friend leased the duplex, without any repairs being made. Upon demand for a refund of the security deposit, Colli orally offered to return only $60 because many repairs were required to be made. Although Mendoza admitted that he was somewhat aware of the lease situation and had failed to exercise the required supervision, neither of the Respondents were involved in the lease as they were not in the business of managing property. Many of the problems in this case arose from Colli's many personal problems (lost a daughter, had a heart attack and was divorced). Count II Respondents admitted that Colli did not hold a real estate salesman's license from March 31, 1976 to May 18, 1979. However, in mitigation Mendoza was completely surprised when informed of the fact by the board's investigator and immediately terminated Colli. Mendoza contended that he was not aware that he was required to check the status of a salesman's license and in Colli's case, did not feel a need to as Colli is an honorable person. Apparently Colli's failure to have a license was attributable to his many personal problems. Count III Respondents also admitted that on two occasions between March 31, 1976 and May 18, 1979 North American paid commissions to Colli for his efforts in selling property. One of the commissions was the result of Colli selling his own residence involved in his divorce. The other sale involved a bankrupt business which resulted in a very small fee. Colli was not very active in his sales efforts due to his personal problems.
The Issue The issues in the case are whether Respondent's real estate broker's license had been revoked when he applied for a mortgage broker's license and whether Respondent falsely answered certain questions on his application for a mortgage broker's license.
Findings Of Fact Respondent is currently licensed as a mortgage broker in the State of Florida. He holds license number HA 056265422-5P. He had been licensed continuously since August 5, 1986. Respondent previously has been licensed as a real estate salesman in the State of Florida. By Administrative Complaint filed March 1, 1985, the Department of Professional Regulation, Division of Real Estate, alleged, among other things, that Respondent was guilty of fraud, misrepresentation, concealment, and breach of trust, among other things, in connection with an improper disbursement from an escrow account. Following a hearing on January 17, 1986, a Recommended Order entered April 18, 1986, found that Respondent was, as to the above-described allegations, guilty "at least of culpable negligence and breach of trust" and recommended that Respondent's license be suspended for one year. After a hearing on June 17, 1986, the Division of Real Estate entered a Final Order June 30, 1986, effective 30 days thereafter, adopting the findings of fact and conclusions of law of the Recommended Order, but revoking rather than suspending Respondent's license. By Application for Registration as a Mortgage Broker signed by Respondent on March 22, 1986, Respondent applied for a mortgage broker's license (March Application). The application was filed on March 25, 1986. Question 19 of the March Application asks: Has any judgement or decree of a court or other judicial, administrative or quasi-judicial tribunal been entered against you, or is any such case pending in this or any other state, province, district, territory, possession or nation, in which you were charged in the petition, complaint, declaration, answer, counterclaim or other pleading with any fraudulent or dishonest dealing? (If your answer is in the affirmative, attach complete signed notarized statement of the charges and facts, together with the name and location of the court in which the proceedings were had or are pending.) Respondent answered this question, "no." By Application for Registration as a Mortgage Broker signed by Respondent on July 1, 1986, Respondent applied for a mortgage solicitor's license (July Application). The application was filed on July 9, 1986, and approved by Petitioner on July 31, 1986. Question 16 on the July Application asks whether the applicant is currently licensed in any state as a real estate broker or salesman. Respondent answered this question, "no." Question 17 on the July Application asks: "Has your license of any kind ever been denied, suspended or revoked?" The question then asks for a complete signed statement of the charges and facts in full detail. Respondent answered Question 17, "no." On July 28, 1986, Respondent sent a notarized letter to Petitioner concerning the July Application. In the letter, he elaborated upon the circumstances surrounding the answer to an unrelated question, but did not elaborate upon the above-described answers Respondent did not answer accurately Question 19 on the March Application. Over a year earlier, Respondent had been charged with fraudulent dealing. Respondent had no basis for omitting this item from the application because, even though he had not received the recommended order, the case obviously was still pending at the time of submitting the March Application. Respondent's incorrect answer was an intentional attempt to conceal from Petitioner the license-revocation proceeding. Although Respondent's answer to Question 16 on the July Application may have been accurate because he had relinquished his license, his answer to Question 17 was inaccurate. Respondent testified that he understood that the Final Order, which had just been issued, had not yet taken effect, so that his license had not yet been revoked. However, without further elaboration, the answer to Question 17 was incomplete and misleading, regardless of Respondent's understanding of the technical status of his license. Respondent knew that his answer was incomplete and would mislead Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance, Division of Finance, enter a Final Order revoking the mortgage broker's license of Respondent. DONE and ENTERED this 26th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4380 Treatment Accorded Petitioner's Proposed Findings 1-7 Adopted or adopted in substance. 8 Rejected as irrelevant. 9-29 Adopted or adopted in substance. 30-32 Rejected as subordinate and recitation of testimony. 33-34 Rejected as legal argument. 35-36 Adopted. 37-38 and 40 Rejected as legal argument. 39 and 41-42 Adopted or adopted in substance. Rejected as legal argument. Rejected as irrelevant. 45-50 Rejected as recitation of testimony. Treatment Accorded Respondent's Proposed Findings 1-7 Adopted or adopted in substance. 8 Rejected as irrelevant. 9-13 Adopted. 14 Rejected as against the greater weight of the evidence. 15-21 Adopted or adopted in substance. 22-23 Rejected as against the greater weight of the evidence. 24-29 Adopted or adopted in substance. 30-31 Rejected as recitation of testimony. Adopted in substance. Rejected as against the greater weight of the evidence. 34-38 Rejected as irrelevant. 39 Rejected as against the greater weight of the evidence. COPIES FURNISHED: Michael J. James 258 East Altamonte Drive Altamonte Springs, FL 32701 Elise M. Greenbaum Assistant General Counsel Office of the Comptroller 400 West Robinson Street, Suite 501 Orlando, FL 32801 Hon. Gerald Lewis Comptroller The Capitol Tallahassee, FL 32399-0350 Charles L. Stutts General Counsel The Capitol, Plaza Level Tallahassee, FL 32399-0350
The Issue Whether Hellender violated the provisions of Section 475.25(1)(a), Florida Statutes.
Findings Of Fact Hellender is a registered real estate broker holding license number 0038269 issued by the Florida Real Estate Commission. Hellender had a listing for the sale of real property owned by Horace E. and Margaret C. Young. An offer to lease with option to purchase was made by Richard W. and Diane B. Milligan through their realtor, Susan Seligman, who was in contact with Seligman several times November 26 concerning the availability of the property and terms of the lease-purchase agreement. Both the Youngs and the Milligans did not live in the Orlando area where the two realtors and property were located. Susan Seligman, a broker-salesperson, presented Ralph E. Hellender with a Contract for Sale and Purchase when she met with Hellender between 6:00 and 7:00 p.m. on the evening of November 26, 1976. This offer, which was received into evidence as Exhibit 1, expired at 12:00 noon on November 27. Hellender took the contract and indicated that he would communicate the offer to the Youngs. Susan Seligman did not accompany Hellender to communicate the offer as is the general custom, because she needed to pick up her children from a football game that evening. Mrs. Ingrid Hellender, a broker salesperson, received a call later on the evening of November 26, 1976, from Susan Seligman. The general topic of the call was the fact that the contract which Seligman had given Mr. Hellender earlier that evening provided for conventional financing of the purchase, and Seligman had second thoughts about the Milligans' desires on financing. She requested that she be given the opportunity to check with the Milligans to determine whether they intended to use conventional or FHA financing. At this point a conflict developed in the testimony of Mrs. Seligman and Mrs. Hellender regarding whether Mrs. Seligman requested that Mr. Hellender hold the contract or whether Mrs. Seligman requested that he present the offer with reservations concerning the nature of the financing. In any event, Mrs. Hellender advised her husband to hold the contract. Similarly, a conflict exists in Mr. Hellender's and Mrs. Seligman's testimony concerning whether Hellender said that the offer has been accepted by the Youngs. Mrs. Seligman stated that Mr. Hellender advised her on November 27, 1976, that the Youngs had accepted the offer. Hellender stated that he did not present the offer and therefore there was no basis for him to communicate an acceptance to Mrs. Seligman and did not communicate an acceptance to her. It should be particularly noted that Mrs. Seligman stated that on November 27 she had Mr. Hellender agreed that the Milligans should execute a new contract on Hellender's forms when the Milligans were to be in Orlando on December 1, 1976. It is also noted that Mrs. Seligman did not request telegraphic confirmation of the acceptance by the Youngs of the offer which she initially submitted to Mr. Hellender, although telegraphic confirmation is the generally accepted practice when dealing with an out-of-city seller and was not standard practice in the real estate firm with which Mrs. Seligman worked. The Hearing Officer discounts the testimony of Mrs. Seligman that Hellender told her the Youngs had accepted the offer because she did not request written confirmation of the acceptance, and because Mrs. Seligman stated that a second written offer was to be prepared on December 1, 1976. All the realtors who testified stated that it was the custom to obtain telegraphic confirmation of an offer from an out-of-town seller. Mr. Seligman, the broker for Mrs. Seligman's company, stated this was the general procedure for his company. Although the record is unclear whether Mrs. Seligman talked with Mr. Hellender before noon or after noon, she was aware the offer expired at noon November 27 and she did not press for written confirmation of acceptance before noon. Instead, she agreed to the preparation of a second offer is totally contrary and repugnant to any theory of acceptance of the first offer. Therefore, the Hearing Officer finds that there was no acceptance of the first offer communicated by Hellender to Mrs. Seligman. Mrs. Seligman may have formed the opinion that there was an acceptance because Mr. Hellender agreed to the terms presented in the first offer, but her agreement to a second offer to be prepared is in fact and law inconsistent with any assertion that the first offer was accepted. Mrs. Seligman stated, that it is clear from the actions of Mr. Hellender, that they expected a second contract to be presented in behalf of the Milligans. This explains his call to Mrs. Seligman advising her on December 5 that there was activity of the property. It also explains why December 6 he did accept a second offer on the property which was presented by Joe Deligna which he and Delinga communicated to the Youngs together as is the general custom after no offer was presented by the Milligans on December 1. Lastly, it explains why Hellender contacted Mrs. Seligman immediately after the Youngs had accepted the offer by the Maccagnanos and confirmed it telegraphically.
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 Ralph E. Hellender. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of March, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esq. 400 West Robinson Street Orlando, Florida 32801 Mark A. Koteen, Esq. Post Office Box 3431 Orlando, Florida 32802
Findings Of Fact Petitioner and Respondent stipulated at formal hearing to Paragraphs 1- 6 of the Administrative Complaint, (TR-5-6) and it is accordingly found that: Petitioner seeks to suspend, revoke or take other disciplinary action against Respondent as licensee and against his license to practice the real estate brokerage business under the laws of the State of Florida. Respondent is now and was at all times alleged in the administrative complaint a licensed real estate broker having been issued license number 0191613. The last license issued was as a broker c/o Cluett Realty, Inc., 4720 Palm Beach Boulevard, Fort Myers, Florida 33905. On about July 14, 1983, Respondent received a check in the amount of $400.00 from Mary Snodgrass, a salesman, who at the time was associated with Respondent. Snodgrass had received the money from Robert James. James had submitted four contracts which were accepted for purchase of four duplexes listed with Respondent. The $400.00 represented a deposit of $100.00 on each of the four contracts. When the check was entrusted to Respondent, Snodgrass stated that the buyer had requested the check be held a couple of days before depositing into escrow to insure it would clear. Respondent indicated this was wrong and the check should be deposited immediately. 1/ The check was not deposited into Respondent's escrow account, but, was held by Respondent until September 15, 1983, two months after initial receipt of the check. The check presented by Mr. James (buyer) to Mrs. Snodgrass (saleswoman) was drawn on the Fort Myers Barnett Bank and on its face represents it is drawn on an account in the name "Clara A. James For: Caj-Raj-Casa De Chihuahua's." There is no indicator on the check itself that Robert A. James is an appropriate signatory on this account. At hearing, Mr. James represented that he was a proper signatory on the account because Clara A. James is his wife. Mrs. Snodgrass represented that she knew Mr. James had this authority but there was no predicate laid for this knowledge on her part and there is nothing about the check itself which would convey such knowledge to someone not intimate with the James' household, nor does the check itself reveal any relationship between Mr. James and "Caj-Raj-Casa De Chihuahua' s." At the time Snodgrass submitted the check to Respondent, she informed Respondent that it was possible that the check would not clear the bank due to insufficient funds. At the time of his conversation with Mrs. Snodgrass on July 14, Respondent was aware of previous problems arising from failure of an earlier check written by Mr. James for rent to one of Respondent's other clients to clear the bank. Respondent was also aware that Mr. James had refused to vacate the premises which James, James' wife, and approximately 80 Chihuahuas occupied by rental from this other client. Respondent perceived Mr. James resented Respondent due to Respondent's involvement in getting the James entourage out of the rental properties so that Respondent's other client as seller could close sale of that property to a third party buyer. Accordingly, Respondent retained the check when it was given him by Mrs. Snodgrass for a few minutes to think about the situation. He then returned it to her and explained it was an inappropriate deposit because it did not represent cash if they knew at the time it was tendered that it might be returned for insufficient funds. He told Mrs. Snodgrass to either secure a check which would clear or to inform both potential buyer and sellers that there was no deposit placed in escrow on the four contracts. Mrs. Snodgrass denied that the check was returned to her by Respondent or that this conversation ever took place; she assumed the check would be held by Respondent until evening and in the evening she went out and got the sellers to sign the 4 contracts previously signed by James. Mrs. Snodgrass placed the signed contracts in a file drawer in Respondent's office and never again initiated any title work or any conversation with Respondent about the transaction. The testimony of Mrs. Weise and Mrs. Cluett support the material particulars of Respondent's version of this second interchange between Mrs. Snodgrass and Respondent. Mr. James testified that he did, indeed, go the following day (July 15) to the bank to transfer funds if needed, but did not then notify Mrs. Snodgrass or Respondent because the money transfer was not necessary. Upon this evidence and due to the credibility problems recited in footnote 1, supra and in Findings of Fact Paragraph 8 infra, the Respondent's version of this interchange is accepted over that of Mrs. Snodgrass and provides additional, but not contradictory, information to Finding of Fact Paragraph 1-e as stipulated by the parties. In early September, Mrs. Snodgrass secured employment with Barbara Ware Realty, a competitor of Respondent. She then turned in all of her keys, gear, and papers to Cluett Realty. Shortly thereafter, Helen Weise, secretary to Respondent, discovered the July 14, 1983, check on what had been Mrs. Snodgrass's desk. This discovery is confirmed by both Respondent and Mrs. Weise. Respondent knew Mrs. Snodgrass and Mr. James were personal friends. He telephoned Mrs. Snodgrass about the status of the James' transaction when the check was discovered. Mrs. Snodgrass admitted she thereafter called Mr. James to verify the status of the transaction and then called Respondent to tell him she thought the sale would go through, but she now denies telling Respondent that the July 14, 1983, check was good or even that Respondent mentioned the check when he called her the first time. Respondent then deposited the check into his escrow account the next day, September 15, 1983. He immediately placed the request for title search and insurance. Thereafter, two duplexes out of the four involved in the four James contracts with Cluett Realty were sold by Mrs. Snodgrass through her new employer, Barbara Ware Realty, and two were sold by Mary Cluett, Respondent's wife, through Cluett Realty. During the period from July 14, 1983, until September 15, 1983, Mr. James was apparently aware that the check submitted to Cluett Realty had never been deposited by Cluett Realty because it did not show up in monthly bank statements. After September, Mr. James clearly was further aware of what was going on because he admits to trying to get Mary Snodgrass to pursue the transaction under her new employer's auspices, despite Cluett's retaining the exclusive listing for the sellers of the properties. It was not established whether or not the sellers were misled by Respondent's failure to immediately deposit the July 14, 1983, check, but Mr. James testified that when Respondent approached him about refunding his deposit or at least a portion thereof, he, (Mr. James), told the Respondent to keep it or give it to the sellers or at least not to give it back to him due to all the inconvenience. Mr. James and Mrs. Snodgrass were friends on July 14, 1983. They became friendlier thereafter. Apparently, in early September, Mrs. Snodgrass left Respondent's employ upon very unfriendly terms. The terms may be characterized as "unfriendly" even if one accepts Mrs. Snodgrass' version that her job hunt was successful before she was fired by Respondent and therefore she should be viewed as quitting upon being asked by Respondent to resign. Respondent has previously filed an unsuccessful complaint with the Department of Professional Regulation against Mrs. Snodgrass. It was she who initiated the complaint giving rise to these instant proceedings against Respondent. Mrs. Snodgrass' resentment of Respondent's filing a complaint against her was evident in her demeanor on the stand. An attempt at formal hearing to impeach Respondent's credibility upon the basis of a supposed prior admission to Petitioner's investigator that Respondent forgot to deposit the crucial check and upon the basis of Respondent's July 13, 1984, letter to the Department of Professional Regulation (P-7) left Respondent's credibility intact. When Investigator Potter's testimony as a whole is compared with Respondent's letter as a whole in light of Potter's investigation of three separate complaints over a period of many months 2/ there is no material variation of Respondent's representations. Also, what was "forgotten" and when it was forgotten is vague and immaterial in light of consistent information supplied to the investigator by Respondent that there was a request to hold the July 14, 1983, check for a couple of days due to insufficient funds.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing all charges against Respondent. DONE and ORDERED this 14th day of August, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 14th day of August, 1985.
The Issue Whether Respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility of regulating the practice of real estate pursuant to the provisions of Chapter 475, Florida Statutes, and other pertinent provisions of law and rules. Respondent, Francis Walid Jacob, is a duly-licensed real estate broker having been issued license number 0569854. Respondent, Renters Paradise Realty, Inc., is a duly- licensed real estate brokerage company, having been issued license number 0269583. At all times pertinent to this proceeding, Respondent Jacob was the qualifying broker for the corporate Respondent. At all times pertinent to this proceeding, Philip Jay Slewett was a licensed real estate salesperson employed by the corporate Respondent. Mr. Slewett's license number was 0614888. Related Management Services, Inc. (RMS), was, at all times pertinent to this proceeding, a real estate management company. Intercoastal Towers, an apartment complex, was one of the properties managed by RMS. At all times pertinent to this proceeding, Bruce Terwilliger was the managing Vice President of RMS. At all times pertinent to this proceeding, RMS had a practice of paying commissions to real estate professionals who referred tenants to Intercoastal Towers. The practice required that the real estate professional visit the apartment complex with a client and that the client subsequently lease an apartment at Intercoastal Towers. RMS became suspicious that certain real estate professionals had submitted invoices for clients that they had not referred to the Galahads Apartments, another apartment complex managed by RMS. Because the leasing director at the Galahads had previously been the leasing director for Intercoastal Towers, Mr. Terwilliger investigated whether his company had paid for falsified invoices at the Galahads and at Intercoastal Towers. During his investigation, Mr. Terwilliger reviewed all billings from real estate professionals for commissions based on referrals to Intercoastal Towers, and he interviewed residents to determine whether the billing real estate professional had referred the tenant. Signed statements, including affidavits, were collected during the course of Mr. Terwilliger's investigation, and an investigation by the Miami-Dade Police Department. Based primarily on what Mr. Terwilliger was told by the various residents, he concluded that RMS had paid commissions to the Respondent corporation based on invoices for professional services that had not been rendered. Respondents and the salespersons who generated the billing for a commission split the commission. Mr. Terwilliger met with Respondent Jacob about these invoices. Afterwards, Respondent Jacob had his company reimburse RMS for the invoices at issue in this proceeding. Phillip Slewett was a real estate salesperson employed by the Respondent corporation at the times pertinent to this proceeding. Mr. Slewett admitted that he and another real estate salesperson employed by the Respondent corporation generated the falsified invoices to RMS. Mr. Slewett also implicated two employees of RMS in this billing scam. The evidence did not establish that Respndent Jacob or the Respondent corporation knew or should have known that the invoices generated by Mr. Slewett and the other salesperson were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint against both Respondents. DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1999.
Findings Of Fact In February, 1974 Respondent was a registered real estate salesman working for John R. Finn, a registered real estate broker who operated a branch office at Lake Panasoffkee, Florida. Sam R. Perroni, the father of Respondent, was the office manager of this branch office and a registered real estate salesman. Sam Perroni obtained an open listing on a parcel of land with a house trailer affixed thereto from Eugene Bays, President of Bays Construction Company, the owner of the property. Bays agreed to pay the usual commission of 6 percent if the property was sold through the effort of Finn Realty. The list price of the property was $12,500. Mrs. Dorothy B. Johnson was shown the property by Respondent and thereafter the property was shown to her and her husband Joseph P. Johnson. Following this visit to the property the Johnsons inquired of Respondent if seller would take $12,000, to which he replied he didn't think so. Johnson then offered to pay Respondent $250 if he could persuade the seller to sell the property for $12,000. Respondent then called Eugene Bays in the Johnsons' presence to advise Bays that he had an offer of $12,000 for the property and asked if Bays would accept. When Bays called back to advise he would accept the offer, the contract was prepared by Sam Perroni, executed by the Johnsons, and delivered to the seller for acceptance on Monday, February 25. Receipt for Johnson's earnest money deposit of $250 was dated February 23, 1974 as was the contract. When Respondent told Sam Perroni of Johnson's offer he also advised him Johnson had offered him a bonus of $250. Sam Perroni advised Respondent that this bonus offer should be reported to the seller, and that he, Sam Perroni, would take care of it. The executed contract was returned to Perroni on February 26, 1974 by C. V. Watson, an officer in Bays Construction Company. At this time Perroni says he advised Watson of the bonus offer, but Watson recalls no mention of any such deal. Bays was never advised and would not have sold the property for $12,000 if he had known of the bonus offer. Sam Perroni told Respondent that the sellers had been made aware of the bonus offer. On March 2, 1974, while having dinner at Sam Perroni's, Johnson delivered to Respondent a check (Exhibit 6) for the $250 bonus agreed upon. On the day of the closing when Johnson indicated he was a little short of cash for closing costs, Sam Perroni gave him a check for $60 drawn on Finn Realty. Joseph Finn accepted the contract as the broker in this transaction and was never made aware of the bonus. Of the $720 commission on the sale, $360 went to Respondent. He also retained the $250 bonus. Upon advising Sam Perroni of the offer and acceptance Respondent was not further involved in the property or the closing. Sam Perroni assisted the purchaser in securing a $4,000 purchase money mortgage on the property and in correcting the deed to the property. He considers the services performed on behalf of the purchaser merited the bonus. Some time later Johnson, who thought he had purchased a 10' x 60' trailer learned the trailer was only 55' in length and complained to the Real Estate Commission. During the course of the inquiry on this complaint Johnson "mentioned" the bonus and the charges herein involved resulted.
Findings Of Fact Both Respondent, Terry A. Kilgore (Kilgore), and Respondent, Karen C. Obluck (Obluck), are duly licensed Florida real estate brokers holding license numbers 0317402 and 0387822, respectively. Starting June 1, 1983, both were registered as employees of Florida Leasing Services, along with a third friend, Karen Kolander. It was understood among the parties to the employment agreement that the three friends intended to form their own brokerage company as soon as one of them obtained a broker license. Obluck got her broker license first on or about July 26, 1983, and Kilgore placed her salesman's license with Obluck on or about August 22, 1983. Obluck then attempted to qualify the new corporation the three had formed, "National Investment Properties, Inc." (emphasis added), as a corporate real estate broker. But, due in part to unfortunate technical errors in the application process and in part to Obluck's inadequate appreciation for the significance of legal technicalities, on or about August 19, 1983, Obluck instead qualified "National Investment Properties" as the corporate broker. Starting approximately August 19, 1983, the three began operating their new real estate brokerage business, sometimes using the name "National Investment Properties," as technically officially registered, but more often using the full corporate name, "National Investment Properties, Inc." (emphasis added.) But they omitted to have Kilgore's salesman's license transferred to the corporate broker license until she got her broker's license and tried to place it under the corporate broker license on March 14, 1984. Because of the technical errors in qualifying the corporate broker, the Department placed Kilgore's broker license under Obluck, an individual broker trading as National Investment Properties. By the time Obluck was notified in March, 1986, that the corporate broker had not been registered properly, Kilgore was no longer working with Obluck's company. On or before June 23, 1983, while still employed by Florida Leasing Services but anticipating the formation of the new business under the name Obluck had reserved at the time (Investment Properties of Central Florida, Inc.), Kilgore contacted fellow licensee, Robert R. Elkin (Elkin), an employee of Sun-Tan Realty, Inc. 1/ in an effort to help a client, U.S. Homes Corporation, find real property to buy. Elkin had an exclusive listing on five acres of property owned by Manor Care, Inc., and he and Kilgore negotiated a deal between the parties on June 23. On June 24, Kilgore and Elkin signed a "Cooperation Agreement Between Brokers" on the Manor Care property, providing that the two brokers involved would divide equally any brokerage commission. But when Elkin presented U.S. Homes' signed offer to his client, Manor Care rejected it, asking for more money. U.S. Homes refused to increase its offer. Kilgore passed this information on the Elkin, and the deal fell through. Kilgore then asked Elkin if he knew of any other land available for sale that might be of interest to U.S Homes. Elkin gave her the name of Dr. Michael Tedone as the owner of approximately 16 acres at County Road 581 and Skipper Road for sale at approximately $972,000. Trying to generate business, Elkin had located Tedone's name as owner of the 16 acres on microfiche records in his office and first spoke to Tedone by telephone in approximately October, 1982. Elkin asked if the property was for sale. Tedone said it was for sale for the right price, $972,000, but that it was not actually on the market. Elkin asked if Tedone would pay a commission if Elkin found a buyer. Tedone said he would but it would have to be negotiated. Elkin asked for some information about the property and asked for a survey. Elkin picked up a survey from Tedone's office and put together an information packet on the property for use in crying to find a buyer. Between October, 1982, and July, 1983, Elkin distributed the packet to a handful of builders and land developers he thought might be interested in the property or know a prospective buyer. Elkin spoke to Tedone about three more times by telephone before approximately April, 1983, confirming that the property was still for sale at $972,000. He never met Tedone and did not have any contact with him in May or June, 1983. He was never even aware that there was a co-owner of the property, a James Carlstedt. Because of what had happened on the Manor Care deal, Kilgore asked if the price was firm. Elkin replied that he had not verified the price in several months and would have to check. He said he would give her an information packet on the property and verify the price. Kilgore got part of the information packet on or about July 5, 1983, but Elkin told her that Tedone was out of town and that Elkin had not yet been able to verify the price. At this point, the evidence began to diverge sharply. The Department attempted to prove through Elkin's testimony that Elkin got Kilgore to agree to co-broker this property under the same terms as the "Cooperation Agreement Between Brokers" for the Manor Care property. He says he added the Tedone property to the list of properties covered on his copy of the agreement shortly after July 5, 1983. He also says he asked Kilgore not to show the information to U.S. Homes until he had a chance to verify the price. But, he says, Kilgore disregarded his request and, on the following Monday (three days later), Kilgore called back to say U.S. Homes was ready to sign a contract at $972,000. Elkin says he then was able to contact Tedone to relay the offer and was told that the price was too low and the Tedone wanted $70,000 an acre for the property. Elkin says he relayed this to Kilgore and that he never heard back. Kilgore, on the other hand, testified that she never agreed to co-broker the Tedone property and that Elkin never asked her not to show U.S. Homes the information on the property. She says she waited for Elkin to verify the price but that he kept making excuses why he had not been able to contact Tedone. Kilgore says finally she went to Tedone herself to get the information. She testified that she made an appointment to see Tedone and showed him the information Elkin had given her. She says Tedone's response was: "I don't know who this [Elkin and Sun-Tan] is but the information is wrong." Kilgore says Tedone never acknowledged that he knew Elkin or had any agreement with him to broker the property. Kilgore says she therefore negotiated the deal for U.S. Homes directly with Tedone and Carlstedt, completely independent of Elkin, and successful concluded negotiations on July 20, 1983. The sales price for the property was $1.1 million; the brokerage commission to National Investment Properties, Inc., was 2 1/2 percent or $27,500. Kilgore testified that she never heard from Elkin again until approximately March, 1984, after the January 9, 1984, closing of the deal, and that she assumed Elkin had abandoned the deal. The key to resolution of the sharp differences between the testimony of Elkin and Kilgore is Tedone. But, for reasons not explained, Tedone did not testify. Without Tedone's testimony to corroborate Elkin's testimony, the Department's case was insufficient to prove the truth of the facts to which Elkin testified. Elkin brought Tedone another prospective buyer in August, 1983. Tedone told him he already had a contract. Elkin did not ask for details. Instead, he began to try to locate Kilgore, who by this time was working for National Investment Properties, Inc., (National) under Obluck. He did not confront Kilgore and Obluck until approximately March, 1984. They confirmed that the property had been sold to U.S. Homes. Elkin demanded a share of the brokerage commission. Kilgore replied that he had abandoned the deal, leaving Kilgore to try to complete the deal herself, and that he was not entitled to any share of the brokerage commission. Obluck knew generally that Kilgore had negotiated a deal between U.S. Homes and Tedone and Carlstedt and that, after a short delay, the deal closed in January, 1984. But Obluck knew none of the details of what had transpired between Kilgore and Elkin. On the other hand, Kilgore knew generally that Obluck had taken steps to properly qualify National as a corporate broker. But she did not know or inquire into any of the details of the qualification process. She left National on or about August 23, 1985, long before the Department notified Obluck in March, 1986, that National was not properly registered. Kilgore, however, must take personal responsibility for failing to take any steps between August 19, 1983, and March 11, 1984, to have her salesman's license transferred from Obluck, individual broker, to National. See Finding Of Fact 1, above. The technical licensure errors made by Obluck and Kilgore, referred to in Findings Of Fact 1 and 12, above, should have come to the Department's attention before March, 1986. On March 11, 1984, Kilgore applied to place her new broker license under "National Investment Properties, Inc.," and the Department accepted the application and placed it under Obluck, trading as National Investment Properties. On March 1, 1985, Kilgore applied to change her personal mailing list, showing her employing broker as "National Investment Properties, Inc.," and the Department accepted the application. The Department did not take either of these opportunities to notify Obluck and Kilgore that the corporate broker had not been properly qualified and registered. On November 13, 1984, the Department received notification from Obluck, "doing business as National Investment Properties, Inc.," that she had lost her license. The Department simply struck through the "Inc." on the notification but did not give Obluck any explanation why. The technical licensing errors referred to in Findings Of Fact 1 and 12, above, were not intentional or intended to deceive. They were inadvertent oversights that Obluck and Kilgore would have cured if they were aware of them. When the Department notified Obluck of the oversights in March, 1986, she immediately had National properly qualified and registered as a corporate broker.
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: (1) holding both Respondent, Karen C. Obluck, and Respondent, Terry A. Kilgore, guilty of a technical violation of Sections 475.42(1)(b) and 475.25(1)(a), Florida Statutes (1985); (2) imposing a $500 administrative fine against Respondent, Karen C. Obluck, for her violation; (3) reprimanding Respondent, Terry A. Kilgore, for her violation; and (4) dismissing all other charges. RECOMMENDED this 16th day of January, 1987, in Tallahassee, Leon County, 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 16th day of January, 1987.
Findings Of Fact Respondent Holt is a registered real estate salesman having been issued license number 0334695. She has not been issued a real estate broker's license. Count II of the Amended Administrative Complaint concerns a failure by the original Respondents to timely place an earnest money deposit in escrow. These funds came into the hands of Donna Duffy, the broker, and Best Sellers Group, Inc., the brokerage firm, on February 14, 1981, but were not deposited until February 23, 1981. Former Respondent Duffy and Respondent Holt testified on the question of who was responsible for making the deposit. These individuals have had a falling out and their testimony was conflicting as well as self-serving. Other testimony supporting this charge was inconclusive. Counts II and III concern a property lease which Respondent arranged for out of state property owners after she left the Atkins, Green, Stauffer and Clark brokerage. The lease arose out of an exclusive right of sale listing with this firm. However, the brokerage was not interested in handling the lease and Respondent undertook this transaction as a favor to the property owners. Holt located a potential lessee in October, 1980. She then forwarded a copy of the lease agreement to the owners along with a bill for her expenses and her personal check for $495. This amount equaled the first month's rent and security deposit which she had collected from the lessee. Thereafter, the property owners negotiated Holt's check, but it was dishonored by the bank. Subsequently, the property owners were deprived of a further $395 in rent collected by Holt. In August, 1981, Holt made restitution in the amount of $890. In mitigation, Holt stated that her estranged husband had withdrawn the original funds intended to cover the returned check. She also had experienced other expenses of divorce and family problems which led her to spend funds she subsequently collected. In further mitigation, Holt pointed out that she did not seek a commission for obtaining the lease, nor did she charge a monthly fee as is customary in such matters when handled through a brokerage.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent Mary Ann Holt guilty as charged in Counts II through VI of the Amended Administrative Complaint, and suspending her real estate salesman's license for a period of three years. DONE and ENTERED this 11th day of January, 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 11th day of January, 1983.
