Findings Of Fact At all times material hereto, Respondent was a registered real estate salesman having been issued license number 0027286 by the State of Florida, which license was registered with Gibraltar Realty and Management, Inc., 407 Lincoln Road, Miami Beach, Florida. On August 2, 1980, Mr. and Mrs. Oscar Rodriguez responded to an advertisement that Respondent had placed in the Miami Herald offering to lease a certain apartment owned by Respondent and known as Unit 5-A, 710 Northeast 29th Street, Miami, Florida. Respondent had been advertising that apartment either for lease or for sale for a period of time. At the time, the apartment was unoccupied. Mr. and Mrs. Rodriguez met with the Respondent at the apartment. Respondent informed them that he was willing to lease the property to them for a period of 18 months at a rental of $2,000 per month with a $5,000 security deposit. No lease was ever prepared or entered into by the parties, although Respondent knew that a written lease was required to rent the unit under the terms discussed. Respondent requested Rodriguez to give Respondent a $2500 deposit check, and Rodriguez complied with that request. Respondent deposited the check into his personal checking account. Respondent never told Rodriguez that the deposit was not refundable. Respondent and Rodriguez began discussing a possible purchase of Respondent's apartment rather than a rental. As a result of the continuing discussions, Respondent prepared a Deposit Receipt and Sale-Purchase Contract dated August 7, 1980, and mailed it to Mr. and Mrs. Rodriguez. At the same time, he sent a copy of that proposed contract to Rodriguez' attorney, who was out of the office that week. After various conversations between the attorney for Mr. and Mrs. Rodriguez and the Respondent, and after the Rodriguez' attorney had met with Respondent and viewed the apartment, Mr. and Mrs. Rodriguez declined to execute the Deposit Receipt and further determined that they would not purchase or lease Respondent's property. Approximately a week later, Rodriguez made demand on Respondent for return of his $2500. Rodriguez' attorney subsequently made demand on Respondent for the return to Rodriguez of that deposit. Respondent has failed and refused to return to Mr. and Mrs. Rodriguez the $2500 deposit. The subject apartment was never removed from the market and was continuously advertised by Respondent for sale or lease during the course of the negotiations with Rodriguez.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of the allegations contained within the Administrative Complaint and suspending Respondent's real estate salesman license number 0027286 for 18 months. DONE and RECOMMENDED this 16th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 16th day of March, 1983. COPIES FURNISHED: Michael Colodny, Esquire 626 NE 124th Street North Miami, Florida 33161 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32082 Manuel E. Oliver, Esquire 39 East Sixth Street Hialeah, Florida 33010 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent, German H. Rodriguez, committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and disciplining real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent has been licensed as a real estate broker, license number 0434907. On March 20, 1995, Respondent submitted a license renewal form to the Petitioner which resulted in the automatic issuance of a renewed license for two years, ending March 31, 1997. The license renewal form provided, in pertinent part: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227 Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. When Respondent executed the renewal form he did not have documentation supporting his eligibility for license renewal. Specifically, Respondent did not have a course report documenting completion of the required 14 hour continuing education course. The course report that Respondent later received from an approved real estate school noted that Respondent had started the course June 1, 1995, and had finished it June 26, 1995. Respondent knew that the 14 hour continuing education course was required by the Department for license renewal. Further, Respondent knew that the course was to be completed before the renewal came due. Respondent maintains that he intended to complete the course before the renewal because he had, in fact, requested a correspondence course from an approved real estate school, had completed the course work, and had filled out the answer sheet. Unfortunately, according to Respondent, the envelope was misplaced and he failed to timely mail the answer form to the company for scoring. Therefore, Respondent did not get credit for the work until June, 1995, when he completed the work again. As chance would have it, Respondent was selected for audit in August, 1995. By this time he had completed the continuing education course work as required by the Department for license renewal but, as indicated above, did so after the renewal form had been submitted. In response to the audit, Respondent represented that he had completed the work prior to renewal but, through inadvertence, had not gotten the course credit until after the renewal period. Respondent did not successfully complete 14 hours of continuing education prior to submitting the renewal form. Respondent has been a licensed real estate broker for ten years during which time he has never been disciplined. At the time of the renewal, Respondent was not using his real estate license and was in an inactive status.
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 finding Respondent violated Section 475.25(1)(m), Florida Statutes, and imposing a reprimand with an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Frederick H. Wilsen, Esquire Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 German H. Rodriguez 703 Southwest 89th Avenue Plantation, Florida 33324
Findings Of Fact At all times relevant hereto, respondent, Ruth Simowitz, held real estate salesman license number 0072273 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, she was employed by Coldwell Banker Real Estate, Inc. in North Miami Beach, Florida. She has been licensed for more than fifteen years. Respondent, Thelma A. Jordon, held real estate salesman license number 0002486 also issued by the Division. She has been licensed for some twelve years, and was a salesman for Associates Realty Corporation in Miami, Florida when the events herein occurred. David J. Alden, a native of the United Kingdom, first moved to Florida in May, 1978. He purchased a house at 14615 Southwest South River Drive in Miami, Florida. The listing agent for the sellers was Simowitz. When Alden decided to sell his house in 1981 or 1982, he chose Simowitz as his listing agent. After the listing expired some six months later, he took the house off the market for a period of time. In April, 1985, Alden again listed the property with Simowitz. Shortly before June 13, 1985, Simowitz telephoned Alden and said she had prospective buyers who wished to inspect the house. She asked if they could visit the house within the next few days. Alden agreed to this. On June 13, Jordon, who worked for a different firm, brought two prospective buyers named Nevell and Marilyn Johnson to inspect the Alden property. The Johnsons found it to their liking, and had Jordon prepare a contract with a purchase price of $95,000, conditioned upon their obtaining a conventional first mortgage in the amount of $76,000 at an interest rate of 10.5 percent. Both Jordon and Simowitz presented the offer to Alden on the morning of June 16. They told Alden he could net approximately $39,000 from the sale after subtracting out his share of the closing costs. This was confirmed in a "Seller's Estimated Net Proceeds" prepared by Jordon and given to Alden on June 18. It reflected approximate cash to seller at time of closing in the amount of $39,798. Although Alden and his wife were not happy with the price offered by the Johnsons, after mulling over the matter, they decided to accept the offer and signed the contract on June 18. After the contract was accepted, Jordon arranged an appointment for the Johnsons on June 20 with State Wide Mortgage Corporation, a mortgage brokerage firm in Hollywood, Florida. After learning from a mortgage broker named Dean Lakin that conventional loans could not be obtained at less than a 12 percent interest rate, which was in excess of that provided in the contract, Nevell Johnson decided to make application for a VA loan which he could obtain at a lower interest rate (11 1/2 percent). To do this, it was necessary that he and his wife get Alden's consent to execute a new contract with a provision that VA financing would be used. A new "Good Faith Estimate of Settlement Services" was prepared by Lakin while the Johnsons were in his office, and it reflected that the discount points ($2,280) on the VA loan would be paid by the buyers. Believing that no additional charges would be borne by Alden under the new financing, Jordon prepared a new contract which the Johnsons executed on June It contained the same purchase price, but specifically authorized VA financing. Jordon then called Simowitz, advised her of the change in financing, and suggested Simowitz make an appointment with the Aldens to discuss the change. On June 20 Simowitz telephoned Alden and said the buyer was a veteran and could obtain a lower interest rate with a VA loan. She asked if she and Jordon could meet with him and discuss the matter. Respondents and Alden met the same day. At that time, Alden said he would accept the new offer only if he could get the same net proceeds as had been previously promised and did not have to pay the discount points which he understood the seller would normally pay on a VA loan. Respondents assured him that the buyer would incur this charge. That representation was based upon the advice given Jordon by Lakin. The contract itself provided that "mortgage closing costs, including mortgage title insurance, notice documentary stamps, intangible taxes, origination fee, recording fees, closing fees, surety, etc., to be paid by BUYER." Relying upon respondents' representation, Alden executed the second contract on June 20, 1985. Alden had no further contact with Jordon after that date. Alden returned to the United Kingdom in August, 1985. Prior to leaving, Alden and his wife visited the offices of Consumer's Title Agency, Inc. (CTA), the title company handling the closing. At the request of CTA, Mrs. Alden executed several documents including a power of attorney form which gave Simowitz power of attorney "to execute any and all documents necessary to complete the sale of" Alden's home. Simowitz did not learn this until shortly before the closing. The closing took place on September 23, 1985. Both respondents attended the closing and Simowitz signed various documents on Alden's behalf. Respondents were given a settlement sheet which reflected that Alden, and not the Johnsons, would pay the points on the loan. Simowitz was surprised but did not object or otherwise attempt to rectify the matter. Jordon was also surprised but said nothing. Alden returned to Florida on October 1, 1985, and visited Simowitz's office to ask for his proceeds. She told him the title company was sending his check and it should arrive in England any day. She said nothing about him being charged for points. On October 4 Alden returned to England and found his check from the title company in the mail. Upon seeing that his proceeds were only $33,505.48, he immediately telephoned Simowitz who then told him that the buyers' attorney insisted at closing that Alden pay the points. Thereafter, Alden filed a complaint with petitioner, and contacted his Miami attorney seeking advice. After consultation, Alden's counsel made a written demand on Associates Realty Corporation and Coldwell Banker Real Estate, Inc. for approximately $4,500 in closing costs paid by Alden. After their firms received the demand, Simowitz and Jordon promptly agreed to reimburse Alden $3,927 of the $4,500 in dispute. The remainder represented termite repair charges ($575) and document preparation fees ($100) which the sellers were clearly obligated to pay under the contract. Alden accepted this amount in satisfaction of his claim and received payment from respondents on February 15, 1986. Respondents conceded they made an "honest mistake" in representing to Alden that the buyer would pay the points on a VA loan. They did so because they relied upon incorrect advice given by a mortgage broker. Although both were long-time licensees, neither was aware that federal law requires that the seller incur these charges. They contend they said nothing at closing because they desired to avoid litigation by the buyers against the Aldens which would further complicate the matter. When such advice was given to Alden on June 20 there was no intent by respondents to deceive or trick Alden into signing the contract. Neither licensees has been the subject of prior disciplinary action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that both respondents be found guilty of breach of trust, concealment and culpable negligence, and they be given public reprimands and each pay a $250 administrative fine, to be paid within thirty days after date of Final Order. DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Post Office Box 1900 Orlando, Florida 32802 Gordon W. Taylor, Esquire 14837 N.W. 7th Avenue Miami, Florida 33168 Wings A. Benton General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold H. Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter in detail, unlawfully withdrew and transferred monies from an escrow account and is therefore guilty of fraud, dishonest dealing by trick, scheme or device, or breach of trust and conversion within the purview of Subsection 475.25(1)(b), Florida Statutes (1979) At the final hearing, Petitioner called Donald Lloyd, Respondent, Donald Reda and Kenneth Viviano as its witnesses. Petitioner offered Exhibits 1 through 7 which were received into evidence. Respondent called no witnesses and offered Respondent's Exhibits 1 through 4 which were received into evidenced.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda and the entire record complied herein, I hereby make the following relevant findings of fact. By its administrative complaint filed herein on July 29, 1981, Petitioner seeks to take disciplinary action against the Respondent as licensee and against his license as a real estate salesman. During times material herein, Respondent was a licensed real estate salesman and has been issued license No. 0188032. During times material herein, Century 21, Lloyds of Lauderdale, Inc., was a Florida licensed real estate corporate broker with its offices located at 3300 NE 33rd Street, Fort Lauderdale, Florida corporate entity was licensed under that name on October 12, 1979. The predecessor entity was known as Lloyds' of Lauderdale, Inc., and had its escrow account at Gulfstream Bank H.A., formerly known as Gulfstream American Bank and Trust Company H.A., formerly known as American National Bank and Trust Company of Fort Lauderdale, which account number was 005-1-00160-3. Upon obtaining the change of name, i.e. Century 21, Lloyds of Lauderdale, Inc., the successor entity maintained the same escrow account number at the same bank and continued using the checks on that account bearing its former name, Lloyds of Lauderdale, Inc. During times material herein, Respondent was a salesman associated with Century 21 and was an authorized signatory on the above-referred escrow account. Respondent was also a stockholder, officer and director of Century 21, Lloyds of Lauderdale, Inc. Respondent was also the owner of an unrelated business known as Brewer's Care Center, which in turn operated a motel located in Georgia. During times material, Respondent owned a one-third (1/3) interest in Century 21, Lloyds of Lauderdale, Inc. On February 3, 1981, Respondent issued a check, No. 79-228, drawn on the Century 21, Lloyds of Lauderdale, Inc., escrow account, payable to Brewer's Care Center in the amount of $11,903.12. Approximately fifteen days later, on February 18, 1981, Respondent issued another check, No. 79-223, drawn on the above-referenced escrow account payable to Brewer's Care Center in the amount of $2,500. On March 3, 1981 Respondent verbally authorized the Gulfstream Bank to withdraw $399.66 from the referenced escrow account to pay interest on loan No. 59-004-00-058-3866-4. Also, on March 18, 1981 Respondent verbally authorized the withdrawal of $799.32 to be applied against the same loan. Neither of the above-referenced checks or verbal loan authorizations were, in any wise, connected with any real estate transactions from which monies were held in escrow by the Respondent. The verbal withdrawals and checks, either authorized or drawn by the Respondent, reduced the escrow account by a sum of approximately $15,602.10 and depleted the account to such an extent that Century 21, Lloyds of Lauderdale, Inc. was unable to meet demands for the return of the escrow funds held in trust (See Petitioner's Composite Exhibit No. 1). Respondent took the position that the monies represented by the payments of the two checks made payable to Brewer's Care Center were repayments of loans and that he was unaware that the accounts which the checks were drawn against were, in fact, escrow accounts. In this regard, evidence reveals that the Respondent suffered a heart attack during November of 1980 and his health regressed to the degree that he was placed in the intensive care unit at a hospital in Cleveland, Ohio for an extended period of time. At the conclusion of the Petitioner's case in chief, Respondent's counsel filed an ore tenus motion to continue the subject hearing until the following day. The undersigned afforded Respondent's counsel an opportunity to submit, for the record, his basis for the continuance. However, that motion was denied based on the numerous continuances which had been previously granted by the undersigned to Respondent's counsel (See Order dated November 16, 1982 - Copy attached).
Findings Of Fact Respondent Shankar S. Agarwal is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0312860. The last license issued was as a broker. Respondent Super Realty, Inc., is now and was at all times material hereto a licensed real estate corporation in the State of Florida having been issued license number 0231630. The last license issued was as a broker located in Hollywood, Florida. At all times material hereto, Respondent Shankar S. Agarwal was licensed and operating as a qualifying broker and officer for Respondent Super Realty, Inc. Respondents advertised for sale by newspaper advertisement a VA repossessed property being a four unit apartment building in Fort Lauderdale, Florida. In April, 1985, Warren and Judith Fieldhouse responded to Respondents' ad, and Respondent Agarwal arranged to meet the Fieldhouses at the property. At the property, the Fieldhouses informed Respondents that they wished to purchase a property as an investment and required that any property purchased by them result in income to them as opposed to resulting in a loss for them. Respondent Agarwal specifically represented to the Fieldhouses that the rental character of the neighborhood had been assessed by the Respondents, that Respondents were qualified to appraise the rental character, and that each unit could be rented for $300 or more per month. Respondent Agarwal further represented that the rent for the property would therefore exceed its expenses. The Fieldhouses decided that they wished to purchase the property based upon Respondents' representations. Respondent Agarwal required the Fieldhouses to give him a check for $1,000 a while still at the property before he would return with them to the office of Super Realty, Inc., to draft a purchase contract. Respondent Agarwal and the Fieldhouses went to Super Realty, Inc., where a purchase contract was drafted by Respondent Agarwal and signed by the Fieldhouses. Respondent Agarwal refused to give to the Fieldhouses a copy of that contract. Respondent Agarwal further advised the Fieldhouses that they were to obtain the required liability insurance on the property from his insurance agency and that they were not to use their own insurance agency. The Fieldhouses refused to comply with Agarwal's direction to them. Changes were subsequently made by Respondents to the Fieldhouses' purchase contract. Although those changes were approved telephonically by the Fieldhouses, Respondents never obtained the Fieldhouses signatures approving the changes in the contract. A closing was scheduled by Respondents at the office of Super Realty, Inc., on May 22, 1985. The Fieldhouses inspected the property just before the closing and found that the property's "as is" condition on the day of closing was worse than its "as is" condition on the day that they first saw it and entered into the contract for the purchase and sale of the property. Appliances were missing, and damage was done to the structure. The Fieldhouses objected to the condition of the property on the date of closing. Yet, the closing began. Respondent Agarwal began handing the Fieldhouses individual documents to sign. When he handed them a required financial disclosure statement, the Fieldhouses realized that the mortgage plus insurance and taxes payments would exceed the rental income which Respondents had represented could be projected from the units, that the amount of payments and other representations initially made by the Respondents were not incorporated into the closing documents, and the rental income for the property would not exceed the property's monthly expenses. The Fieldhouses refused to continue with the closing. They demanded copies of the documents that they had signed, but Respondents refused to give them copies of those documents. They demanded a refund from Respondents of their $1,000 deposit, but Respondents refused to refund their money to them. Although the Fieldhouses had signed a note and mortgage on the property before they refused to continue forward with the closing, they gave Respondents no monies toward the purchase of the property to increase the $1,000 earnest money deposit to the required down payment for the property. Respondents knew that the Fieldhouses did not pay the required cash to close on the property, the additional consideration required under the contracts. After the closing, the Fieldhouses made additional demands on Respondent for the return of their $1,000. Respondents refused to return that money to them and further refused to discuss the matter with them further. Respondents submitted the Fieldhouse closing documents to the Veterans Administration claiming a sales commission due to the Respondents in the amount of $5,740, even though Respondents knew that the sales transaction had never closed. Since the Veterans Administration had experienced difficulties with Respondents' complying with their rules and regulations on previous occasions, the VA took the position that the Respondents were not entitled to a commission since no sale had taken place and that the Respondents should refund to the Fieldhouses their $1,000. Respondents sued the Veterans Administration for a sales commission. At the time that Respondents sued for a commission, they knew that they were entitled to no commission since there was no sale. When the Veterans Administration filed an Answer to Respondents' Complaint indicating that it intended to fully defend Respondents' false claim, Respondents voluntarily dismissed their litigation against the Veterans Administration. The VA now has possession of the Fieldhouses' $1,000 deposit which it intends to return to the Fieldhouses. Although Mr. Fieldhouse was a licensed real estate salesman during the time period material hereto, he had not actively worked as a real estate salesman. Therefore, the Fieldhouses relied upon the Respondents as licensees to responsively perform the sales transaction and further relied upon Respondents' representations regarding the property's income and expenses. Respondents never advised the Florida Real Estate Commission that demands had been made for the return of the $1,000 which Respondents held in escrow until such time as they voluntarily forwarded the money to the Veterans Administration despite the Fieldhouses' demands for its return to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing Counts V and VI of the Administrative Complaint, finding Respondents guilty of the remaining allegations in the Administrative Complaint, and revoking Respondents' real estate broker licenses. DONE and RECOMMENDED this 21st day of April 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 21st day of April, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Super Realty, Inc. c/o Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times relevant hereto, respondent, Alexander Alexander, Jr., held real estate salesman license number 0000747 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). He has been licensed by the Division since 1971. He has worked for Earl Hollis, Inc., a Palm Beach realty firm, since 1980. Respondent has never been the subject of disciplinary action prior to the filing of this complaint. The administrative complaint alleges that respondent failed to deposit in his employer's trust account certain funds received from a prospective purchaser in conjunction with a real estate transaction handled by respondent in early 1986, and that respondent made false representations to the listing broker during the course of his dealings. The transaction in question had its origins in late 1985 when Linda O'Connell, a well-to-do housewife from Dallas, Texas, contacted respondent and requested his services in locating a Palm Beach County residential property adjacent to the ocean or intracoastal waterway. After a one month search, respondent located a waterfront property at 2020 South Ocean Boulevard in Manalapan, Florida. The property was a large home fronting the ocean on one side and the intracoastal waterway on the other. The house was then owned by Kudu Shipping Corporation, S.A. (Kudu), an entity with offices in London, England. When the property was first listed, the asking price was $2,300,000. By now, this price had dropped to $1,750,000. Merrill Lynch Realty (MLR), a real estate firm in Palm Beach, had obtained an exclusive one-year listing on the property for calendar year 1985. This meant the property could be shown only in the presence of a sales representative of that firm. MLR's associate manager, Deborah M. Clark, was the firm's contact person for parties interested in inspecting and making offers on the house. Although the exclusive listing expired on January 1, 1986, it was renewed by Clark about thirty days later for another year. On January 14, 1986, Linda O'Connell and her husband, Tom, in the presence of respondent and Clark, inspected the house in question. During the course of the inspection Clark mentioned to the O'Connells that, in light of other offers she had received, she did not think the seller would make any needed repairs or agree to owner financing. However, because the property was in disrepair, Tom O'Connell did not think $1,750,000 was a fair asking price. Linda O'Connell liked the home and requested that respondent prepare an offer in the amount of $1,300,000 with financing and inspection contingencies. She also gave respondent a check in the amount of $10,000 but specifically asked that respondent not deposit the check until she was sure Kudu was serious about accepting her offer. It was her intention that respondent merely hold the check as evidence of "good faith," and if Kudu expressed interest in the offer, she would then use the $10,000 as a part of the ten percent earnest money deposit required by the contract. According to respondent, O'Connell's instructions were not "unusual" and were occasionally made by customers on large transactions. In contrast, checks were never held by MLR, and a contract would not be presented until the check was given to the firm for immediate deposit in its trust account. In any event, when he accepted the check, respondent considered it to be "an earnest money deposit." The offer was prepared on the standard real estate contract form, was dated January 14, 1986, and listed only Linda O'Connell (but not her husband) as buyer. It contained a notation that Earl Hollis, Inc. would hold a ten percent deposit, or $130,000, in escrow, with the following explanation: "$10,000 rec'd 1/14/86; balance of $120,000 payable upon acceptance of contract." It also contained contingency clauses for O'Connell to obtain a $1,040,000 mortgage for a term of fifteen years and for the seller to repair any deficiencies found in the seawall, roof, or electrical and plumbing systems. After preparing the offer, and pursuant to Clark's request, respondent carried the original contract and a copy of O'Connell's check to Clark on January 15. Consistent with O'Connell's instructions, respondent retained the original check in his office file and did not give it to his employer for deposit in the firm's escrow account. Other than advising Clark that he had a $10,000 check from O'Connell, there were no further conversations by the two concerning the deposit. Respondent did not tell Clark that the $10,000 check had not been deposited. Even so, there was no intent on the part of respondent to deceive or trick the seller or to conceal any material matters. Clark mailed Kudu the offer on January 15. On January 24, she received by return mail the contract from Kudu. The contract carried an illegible signature of a Kudu principal, and had been amended by increasing the selling price from $1,300,000 to $1,650,000 and providing that the owner would not authorize any financing on the house or make needed repairs. Because the sellers had increased the selling price and rejected the contingencies, Clark "guessed" the O'Connells' original offer had been rejected. After respondent was advised by Clark of this counteroffer, he relayed the information to the O'Connells. Because Tom knew his wife wanted the house, he agreed to up the price to $1,500,000. Respondent telephoned this figure to Clark. During the course of their conversation, Clark told respondent she had just received a full price offer with no contingencies from another interested buyer, Omnitek Intertrade Corporation (Omnitek), a Fort Worth, Texas firm. Believing that the house might be sold to another buyer, Linda O'Connell advised respondent around noon on Saturday, January 25, that she would accept Kudu's counteroffer of $1,650,000 with no contingencies. Linda and respondent met at the West Palm Beach airport the same day where she executed the contract and gave respondent a check in the amount of $165,000. However, she asked that he hold it for two or three days so that she could return to Dallas and transfer funds into the bank account on which the check was drawn. At the same time, she asked for and received her original $10,000 check which had been held by respondent but never deposited. Since it was a Saturday when the two met, respondent could not give the second check to his employer until the following Monday, January 27. This was because Gloria More was the only person in Earl Hollis, Inc. who could make deposits and she did not work on weekends. Further, the banks were closed. Respondent held the check until either Monday or early Tuesday morning and then gave it to More who deposited it in the firm's trust account on Tuesday, January 28. This is confirmed by the firm's deposit slip, which reflects the check was deposited in the bank on January 28. That same weekend respondent carried the contract and a copy of the $165,000 check to MLR. Since Clark was not there, respondent simply left the documents at her office. However, on Monday he telephoned Clark and told her he was "holding" a $165,000 check for the transaction. There was no representation by respondent, either express or implied, that Earl Hollis, Inc. had $175,000 in its trust account for this transaction. By now Mr. O'Connell was having second thoughts about paying $1,650,000 for the house and suspected he may have been snookered into raising his offer by Clark's vague reference to another pending full-price contract. These suspicions may have been well-founded since it turned out the Omnitek contract was not for the full price of $1,750,000, but was for $50,000 less, and had some standard contingencies. It also turned out that when the O'Connells inspected the property on January 14, contrary to Clark's representations, she had not yet received any written offers on the house. Mr. O'Connell accordingly requested a copy of the other so-called "full offer" contract from MLR. After having no luck, he wrote the president of Merrill Lynch stating he would not be bound by his wife's offer unless he was given information regarding the so- called "full offer" contract. On Wednesday, January 29, Linda O'Connell directed her bank to stop payment on the $165,000 check. The check was later returned to Earl Hollis, Inc. with a notation of "Insufficient Funds." 1/ For the first time, respondent and his employer learned of O'Connell's stop-payment order. There is no question that, had the O'Connells followed through with the sale, they had sufficient assets to cover the check and buy the house. On February 6, an MLR secretary telephoned the Texas bank on which the $165,000 check had been drawn. The firm learned that a stop-payment order had been placed on the check. Clark then telephoned respondent to give him this information. Clark later filed a complaint against respondent with the Division charging that respondent had failed to deposit the initial $10,000 deposit. This prompted the initiation of this proceeding. The Kudu house was eventually sold to another buyer for $1,315,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(k), Florida Statutes (1985), as alleged in Count I, and that he pay a $500 fine. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of December, 1987.
The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: Respondent, Robert E. Zimmerly (Zimmerly) is a licensed real estate broker having been issued license No. 0127833, with last known address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a real estate broker. Respondent, Haines City Realty, Inc. (Haines City) is a licensed corporate real estate broker having been issued registration No. 0146307, with its last known business address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a corporate real estate broker. Haines City's license is currently in an inactive status. At all times pertinent to these proceedings, Zimmerly was the sole broker, of and for Haines City, and was its President. Several weeks prior to April 23, 1981, the date N. B. Willoughby (Willoughby) signed the first offer to purchase the property (offer), Zimmerly along with Barbara Costello (Costello) and Chancellor I. Hannon (Hannon) showed the property described as "Lots 230 and 233 of the Lucerne Park Fruit Association Subdivision, P1at Book 3, Page 67, Public Records of Polk County, Florida" (property), consisting of approximately 20 acres and contiguous to the city limits of Winter Haven, Florida to Willoughby, a prospective buyer, along with Ray Workman (Workman), Willoughby's associate. Costello at the time was a sales person for American Realty of Haines City, now known as American Realty of Polk County, Inc., (American Realty). Zimmerly was representing Haines City. Hannon was representing Ridge Holding Association, Inc., (seller) the owner of the property. The property had originally been listed with Haines City but presently was considered as being listed with American Realty. Subsequent to having seen the property, Willoughby instructed Zimmerly to prepare an offer to purchase, with a purchase price of $70,000, subject to the condition, among others, that the seller would obtain a special exception for a mobile home park. A deposit check for $500 was submitted along with the offer. Costello submitted the offer to Hannon for seller. Sometime around April 25, 1981, Hannon notified Costello that the seller had rejected Willoughby's offer because of the condition concerning a special exception for mobile home park. Within a day, Costello notified Zimmerly of the rejection. Zimmerly requested rejection in writing which Hannon did not furnish until May 11, 1981 due to his involvement in personal matters. Willoughby was not notified of seller's rejection of his first offer until around May 11, 1981. On April 27, 1981, after a verbal notification by Costello of rejection of Willoughby's offer, Zimmerly prepared and submitted an offer to purchase (Ridge offer) from Ridge Crest, Ltd., Agent, (This was apparently meant to be Ridge Crest Villas, Ltd.) signed by Bob Zimmerly, a general and limited partner, to seller, with a purchase price of $72,000, subject to the condition, among others, that seller furnish a letter requesting a special exception for mobile homes park. The Ridge offer was submitted to Hannon for the seller and was accepted by seller on May 5, 1981. On May 18, 1981 Willoughby submitted his second offer to purchase (second offer), with deposit, to seller through Zimmerly. The second offer was identical to the first offer except for the deletion of the condition requiring a special exception for mobile home park. Zimmerly did not advise Willoughby at this time, or at any other time material to the transaction, that Zimmerly was involved in an attempted purchase of the property through Ridge Crest Villas, Ltd. even though the Ridge offer had been accepted on May 5, 1981. Although the Ridge offer indicated a closing date of May 15, 1981, the transaction did not close for reasons not clear in the record, until May 27, 1981. The warranty deed and the mortgage deed executed on day of closing shows Ridge Crest Villas, Ltd. as the Grantee and Mortgagor, respectively. The deposits submitted with both of Willoughby's offers were timely refunded by Zimmerly. Willoughby was notified by Hannon after the closing that his second offer was rejected. On November 6, 1980, a limited partnership known as Ridge Crest Villas Ltd., was filed with the Secretary of State. The record is not clear, but apparently this limited partnership was involuntarily dissolved for failure to file an annual report and on October 14, 1981, an identical limited partnership, with the same name was filed with the Secretary of State. Both limited partnerships listed Robert E. Zimmerly as a general partner with 5 percent interest and listed Robert E. Zimmerly and Dolores J. Zimmerly as limited partners with 45 percent and 50 percent interests, respectively. Respondent Zimmerly's testimony was that: (1) he wanted a written (firm) rejection before notifying Willoughby because of previous dealings with Willoughby; (2) it is not uncommon to use limited partnerships in real estate transactions because of the availability of tax advantages when using a limited partnership; (3) he was acting for Jones and Destefano when he made the offer and purchased the property in the name of the limited partnership; (4) he intended for Jones and Destefano to own the property through the limited partnership and took a promissory note for the down payment; (5) he did not advise Willoughby of his involvement in the purchase of the property, other than in general terms "that some fellows from up north are interested" (Destefano is "from up North") because he had been taught in real estate schools, and it was his policy, not to discuss one prospective buyer's offer with another prospective buyer; and (6) it is common practice to have a "backup" offer as with Willoughby's second offer because you are never sure if a particular transaction will close. Mainly, this testimony went unrebutted by the petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that respondent be found guilty of a violation of Section 475.25(1)(b), Florida Statutes 1981) For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand and impose an administrative fine of $1,000.00. DONE and ENTERED this 10th day of May, 1985, 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 10th day of May, 1985. COPIES FURNISHED: James R. Mitchell Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite 308 P.O. Box 1900 Orlando, Florida 32802 Arthur C. Fulmer, Esquire P.O. Drawer J Lakeland, Florida 33802 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802
