Findings Of Fact At all times relevant hereto Brian Rothschild, Respondent, was registered with the Florida Board of Real Estate as a real estate salesman and was employed by Mascar Realty, Inc. Thomas Palumbo was the active broker for Mascar Realty, Inc. On 15 January 1981 Respondent obtained a listing contract on a residence from Annette Seidman. This exclusive right of sale was for a six- month period and provided for a commission of ten percent (10 percent) upon sale. The contract was accepted by Palumbo as broker and active firm member. Shortly after executing the listing contract Mrs. Seidman became dissatisfied with the services of Respondent, her husband became ill and also faced a jail sentence for contempt of court, and she wanted to take the house off the market. She communicated the desire to take the house off the market to Respondent. Respondent communicated this information to Palumbo, who sent Mrs. Seidman a letter largely drafted by Respondent (Exhibit 2). Subsequently, Mrs. Seidman talked with Palumbo, told him of her personal problems, advised that she would reimburse Mascar Realty for the costs incurred in servicing the listing agreement, and that she was not satisfied with Respondent. Two incidents which disturbed Mrs. Seidman occurred when she returned home following an open house held by Respondent at her residence. One of these incidents was the presence of several young girls outside the house talking to Respondent, and another was seeing Respondent remove a pistol from the waistband of his trousers and place it in his briefcase as he prepared to leave. Upon receipt of this information and the agreement by Mrs. Seidman to reimburse the realty firm, coupled with his belief that the house would not sell at the asking price, Palumbo released Mrs. Seidman from the listing agreement. After executing the release Palumbc called Respondent into his office and told him he had released the listing. Respondent testified that Palumbo fired him; Palumbo testified Respondent resigned and he (Palumbo) was happy to have Respondent go. Whichever version is true is not material. Shortly after his employment was terminated with Mascar Realty, Respondent filed a complaint in the Circuit Court in Broward County against Annette Seidman for the commission he would have earned had he sold the house, and for other damages allegedly resulting from the termination of the listing agreement. He also filed a notice of lis pendens in the property records of Broward County which was not authorized by the owner of the property against which it was filed. The complaint was dismissed by the Circuit Court and Respondent has appealed this decision to the District Court of Appeal. As the result of the complaint and appeal filed by Respondent, Mrs. Seidman has incurred expenses for attorney's fees which she would not have incurred had the complaint and lis pendens not been filed.
Findings Of Fact The parties stipulated to the following factual matters: The Respondent was, at all times alleged in the Administrative Complaint in this cause, a licensed real estate broker having been issued license number OliB294. From February 2, l9B4 to August 13, l9B4 Respondent was licensed and operating as the sole qualifying broker and officer of Commercial International Realty, Inc., a corporation licensed as a real estate broker, 219 Commercial Boulevard, Lauderdale- By-The-Sea, Florida. At all times alleged in the Administrative Complaint, Elaine Sherban was president, sole stock holder and owner of Commercial International Realty, Inc., 219 Commercial Boulevard, Lauderdale-By-The-Sea, Florida. Elaine Sherban is not now, nor was she ever, licensed or a holder of a valid and current license as a real estate salesman, broker-salesman or broker in the State of Florida. On or about December 29, l9B4, Respondent and Commercial International Realty, Inc., via Elaine Sherban, entered into an employment agreement whereby Respondent was employed as a real estate broker. The Respondent has not paid any sum whatsoever to Bobbi Jo Magee. Based upon the evidence received and the demeanor of the witnesses who testified, the following additional findings of fact are made: On or about March 7, 1984, Bobbi Jo Magee, as purchaser, executed a purchase agreement with Robert E. Moon, seller, for an establishment known as Cowboy's Lounge and Restaurant, Inc. The purchase agreement provided for a purchase price of $257,500 and a $10,000 non-refundable deposit. The date of closing was specified in the agreement to be June 7, 1984. In connection with this purchase agreement, Bobbi Jo Magee also executed a promissory note, dated March 7, 1984, in the amount of $35,000, payable to Elaine Sherban or her assigns. The promissory note was due and payable on March 12, 1984 and stated it was for "consulting fees and cash loan." Bobbi Jo Magee testified that she had no money of her own for the deposit called for in the promissory note, but that her mother, Mary Rose Turner, was financially backing her in this transaction. On March 30, 1984, Mary Rose Turner executed a wire transfer in the amount of $35,000 plus an additional $500 to Commercial International Business Brokers Corp., a business owned by Elaine Sherban. Commercial International Business Brokers was located in the same building as Sherban's other business, Commercial International Realty, Inc., but was a separate business with different telephone lines and financial accounts. Turner and Magee testified that this wire transfer was for the deposit on Cowboy's Lounge, and was for an amount greater than the $10,000 deposit called for in the purchase agreement because Sherban told them that Moon would not accept a deposit of only $10,000 on this transaction. Respondent did place several telephone calls to Turner, who was out of the state, on behalf of Sherban in which Sherban made requests for more money. Respondent's role was to make the phone call and leave a message that Sherban needed to talk to Turner or to turn the phone over to Sherban who then discussed the details with Turner. Respondent did not discuss the financial, or any other, details of the transaction with Turner in these calls, but simply placed the calls for Sherban and facilitated discussions between Sherban and Turner. Elaine Sherban was acting through Commercial International Business Brokers in this transaction with Magee, Turner and Moon. She had Magee execute the $35,000 promissory note to cover the $10,000 deposit and consulting fees she charged for her services. Respondent had no knowledge of the reason for this promissory note or what, if any, services Sherban had performed. Respondent did not participate in the execution of the promissory note and purchase agreement other than as-typist, notary and witness. She was not involved in any substantive discussions which caused Magee to sign either document, nor were any part of the funds that were wire transferred by Turner ever received or used by either Respondent, or Commercial International Realty, Inc., the real estate office in which she was employed. The funds which were transferred by Turner on behalf of Magee were received by Commercial International Business Brokers and were used thereafter by Elaine Sherban. The sale of Cowboy's lounge did not close on June 7, l9B4, due to concerns which Magee and Turner developed in late May regarding the business records of Cowboy's Lounge. Because they could not get information which they felt was satisfactory about the financial history of this business, they sought legal advice and notified Sherban and Moon that they would not close. Neither Magee nor Turner have ever received a refund on any part of the $35,500 which was transferred by wire on March 30, l9B4.~_ Between March 7, 1984, and late May Respondent met with Magee on several occasions and with Turner on one occasion at Cowboy's Lounge. Others were also present, including Sherban and Moon. Respondent's role in these meetings was purely social, making casual conversation She did not discuss any aspect of the transaction, or the financial condition of Cowboy 's. Despite the fact that Respondent did not intend to actively participate in the transaction involving Cowboy's Lounge, and in fact did not solicit, negotiate or otherwise intentionally assist with this sale, she did give the appearance of working with and assisting Sherban in this transaction. Magee and Turner made the reasonable assumption that Sherban and Respondent were partners for purposes of this sale. This appearance was given by tlle fact that Sherban said they were acting as partners, the very close proximity of the offices of Commercial International Business Brokers and Commercial International Realty, Inc., common ownership by Sherban of both businesses, Respondent's placing phone calls to Turner on behalf of Sherban, meeting with Turner and Magee at Cowboy's along with Sherban, and her functioning as typist, witness and notary for some of the documents involved in this transaction. No demand by either Turner or Magee has ever been made on Respondent for return of part or all of the $35,500. Through counsel, they did make demand for return of this sum upon Sherban and Moon. There is no evidence that Respondent ever employed Sherban. The evidence is that Respondent was employed by Commercial International Realty, Inc., which was owned by Sherban.
Findings Of Fact At all times relevant hereto, Petitioner was licensed as a real estate broker by the Florida Real Estate Commission. In May 1988, he was working as a broker-salesman with G.V. Stewart, Inc., a corporate real estate broker whose active broker is G.V. Stewart. On April 20, 1989, Respondent submitted a Contract for Sale and Purchase to the University of South Florida Credit Union who was attempting to sell a house at 2412 Elm Street in Tampa, Florida, which the seller had acquired in a mortgage foreclosure proceeding. This offer reflected a purchase price of $25,000 with a deposit of $100 (Exhibit 2). The president of the seller rejected the offer by striking out the $25,000 and $100 figures and made a counter offer to sell the property for $29,000 with a $2000 deposit (Exhibit 2). On May 9, 1989, Respondent submitted a new contract for sale and purchase for this same property which offer reflected an offering price of $27,000 with a deposit of $2000 held in escrow by G.V. Stewart (Exhibit 3). This offer, as did Exhibit 2, bore what purported to be the signature of William P. Murphy as buyer and G. Stewart as escrow agent. In fact, neither Murphy nor Stewart signed either Exhibit 2 or Exhibit 3, and neither was aware the offers had been made at the time they were submitted to the seller. This offer was accepted by the seller. This property was an open listing with no brokerage firm having an exclusive agreement with the owner to sell the property. Stewart's firm had been notified by the seller that the property was for sale. Respondent had worked with Stewart for upwards of ten years and had frequently signed Stewart's name on contracts, which practice was condoned by Stewart. Respondent had sold several parcels of property to Murphy, an attorney in Tampa, on contracts signed by him in the name of Murphy, which signatures were subsequently ratified by Murphy. Respondent considers Murphy to be a Class A customer for whom he obtained a deposit only after the offer was accepted by the seller and Murphy confirmed a desire to purchase. Respondent has followed this procedure in selling property to Murphy for a considerable period of time and saw nothing wrong with this practice. At present, Respondent is the active broker at his own real estate firm.
Recommendation It is RECOMMENDED that William H. McCoy's license as a real estate broker be suspended for one year. However, if before the expiration of the year's suspension Respondent can prove, to the satisfaction of the Real Estate Commission, that he fully understands the duty owed by a broker to the seller and the elements of a valid contract, the remaining portion of the suspension be set aside. ENTERED this 29th day of November, 1989, in Tallahassee, Florida. K. N. AYERS 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 29th day of November, 1989. COPIES FURNISHED: John Alexander, Esquire Kenneth E. Easley 400 West Robinson Street General Counsel Orlando, Florida 32802 Department of Professional Regulation William H. McCoy 1940 North Monroe Street 4002 South Pocahontas Avenue Suite 60 Suite 106 Tallahassee, Florida 32399-0792 Tampa Florida 33610 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact Based upon the documentary evidence received, the testimony of Respondent and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed herein on September 28, 1981, Petitioner, Board of Real Estate, Department of Professional Regulation, seeks to suspend, revoke or take other disciplinary action against the Respondent as a licensee and against his license as a real estate broker/salesman under the laws of the State of Florida. Respondent is a real estate broker/salesman and has been issued License No. 0315273 by Petitioner. On June 9, 1981, Respondent was charged by the State Attorney of the Seventeenth Judicial Circuit of Florida, with violations of Florida Statutes Subsection 812.014(1)(b), and Florida Statutes subsection 812.014(2)(b), criminal theft and second degree grand theft, respectively, to wit: that the Respondent did unlawfully use, or endeavor to use the property of Rus Realty, Inc. (his former employer), an IBM typewriter, of a value in excess of one- hundred dollars ($100.00), with the intent to appropriate the property to his own use or to the use of any person not entitled thereto, knowing or having reason to know said property was stolen. (Petitioner's Composite Exhibit No. 1) On April 22, 1981, Respondent appeared in the Circuit Court, in and for the Seventeenth Judicial Circuit, in and for Broward County, Florida, and entered a plea of nolo contendere to the offense of grand theft and it was ordered and adjudged that the adjudication of guilt and imposition of sentence would be withheld and Respondent was placed on probation for a period of two (2) years. (Petitioner's Composite Exhibit No. 1) Respondent admits to the fact that he entered a nolo contendere plea and that he was placed on probation for a period of two (2) years. However, he testified that he, while formerly employed as a salesman with Rus Realty, Inc., purchased a typewriter from a handyman who was working for Rus Realty, Inc., Tomm Marty, for which he paid one hundred fifty dollars ($150.00) cash for an IBM selective typewriter. (Respondent's late-filed Exhibit No. 1) In mitigation., Respondent, while admitting to the above facts, offered that he had learned a lesson by his involvement in the above purchase of the referenced typewriter. Respondent also related the fact that he had, in addition to losing the money for the purchase of the above typewriter, expended substantial legal fees in an effort to resolve the criminal and administrative charges surrounding the above-referred incident. Respondent learned a lesson by his involvement in the above transaction and has vowed to never again be involved in any questionable acts and/or
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent's broker/salesman License No. 0315273 be suspended for a period of thirty (30) days from the date of the Petitioner's final order herein 2/ . RECOMMENDED this 21st day of July, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1982.
Findings Of Fact At all times pertinent to the allegations herein, the Respondent, James C. Condrack, Jr., was licensed in Florida as a registered real estate broker under license number 0140067. Respondent J C C Company and Son, Inc., at all times pertinent hereto, was a licensed real estate brokerage corporation in Florida operating under license number 0215540. Both Respondents operate in Sarasota, Florida at 2831 Ringling Blvd., Suite 202 A. In addition to his real estate brokerage business, Respondent Condrack also operates a real estate holding company, (Flagship Equity), which holds approximately six properties valued at about one-half million dollars. These properties are all income producing properties which are either straight rentals or are sold on a lease option basis and generate rental income which in some cases, constitutes a slight positive cash flow. In September and October, 1987, Respondent, Condrack, was seeking to buy several properties in Bradenton, Florida. Two of these were private residences and the third, a multifamily home to be converted into an adult congregate living facility. At the time, Respondent, Condrack, was making the purchases on behalf of his holding company for his personal investments, not as a part of the business of J C C Company and Son, Inc., and was utilizing the brokerage services of Sharon Hendricks, an associate with MacIntosh Realty in Bradenton. Prior to making an offer on the properties in question, Mr. Condrack indicated he would like to have an appraisal made of them and through Ms. Hendricks, was put in touch with Mr. Robert Laney, owner and operator Key Realty Appraisal, Inc. of Bradenton Beach, Florida. On September 9, 1987, Mr. Condrack, through Ms. Hendricks, requested that Mr. Laney perform an appraisal on property located at 6008 11th Street East in Bradenton. The appraisal was accomplished and was delivered on September 15, 1987. Thereafter, on October 9, 1987, Respondent requested, again through Ms. Hendricks, that Mr. Laney do an appraisal on property located at 2109 12th Street West in Bradenton and this appraisal was accomplished and delivered on October 27, 1987. On or before October 20, 1987, Respondent Condrack met with Mr. Laney and went through the property with him. At that time, Respondent gave Mr. Laney no criteria for the appraisal nor did he indicate any minimum figure he would consider acceptable. Mr. Laney did the appraisal as requested and wrote up the results on a form provided by the Federal National Mortgage Association. In conducting his appraisal, he used the three standard appraisal methods; the income method, the cost data method, and the sales data comparison method. As to the third property, located on 55th Avenue in Bradenton, the cost data method reflected a value of $165,282.00; the income method reflected a value of $168,000.00; and the sales data comparison method reflected a value of $155,000.00. To get a valid appraisal using the comparable sales method, a minimum of three comparable sales must be considered. In this case, Laney used six sales no older than three months prior the appraisal date, using research records kept in his office. For the first appraisal, Mr. Laney charged $150.00 plus tax; for the second, the same; and for the third, $300.00 plus tax. This came to a total amount owed of $630.00 which was, by individual property billings, billed to attorney David Wilcox, but shown to be for either Mr. Condrack, in the case of the last property, or Flagship Equity in the case of the other two. Mr. Laney was not paid for any of the appraisals and on January 15, 1988, wrote to Mr. Condrack requesting that he be paid for the three appraisals. He was not paid. Respondent contends that he did not pay Mr. Laney because, as to the last appraisal, that on the 55th Avenue property, he was unable to secure financing from Key Savings Bank, to whom he applied for financing. He contends this was because Key refused to accept the appraisal done by Mr. Laney who was no longer on their list of approved appraisers because he had failed to initiate certification procedures as an appraiser. Mr. Laney contends that at the time he prepared the appraisal and forwarded it to Mr. Condrack, he was on Key's approved appraiser list but was subsequently removed because Key went to a designated appraiser system at the request of the Federal government. It matters not, however, whether Mr. Laney was certified by Key or not. There is no evidence that certification by Key was made a condition precedent to the appraisal services being rendered for Mr. Condrack and it appears that at the time the services were rendered and when the appraisal forms were delivered to the client, he was certified not only by Key but by the Island Bank (now First Union Bank) as well. He is still on the approved list with First Union. Mr. Condrack contends that when he first was turned down for financing on the 55th Avenue property, he was "miffed" and decided to extend payment to Mr. Laney over a period of time rather than pay immediately. He communicated this intention to Mr. Laney. Mr. Laney declined to accept extended payment and instead requested immediate payment. Mr. Condrack has failed to make any payments whatever to Mr. Laney for any of the three appraisals performed for him even though he utilized the appraisal on the first property in purchasing it and is currently drawing income from it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the so much of the Administrative Complaint as relates to the Respondent, J J C Company and Son, Inc., be dismissed, but that the broker's license of Respondent, James C. Condrack, Jr. be suspended for a period of one year. RECOMMENDED this 7th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 7th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3010 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By The Petitioner: 1 - 7. Accepted and incorporated herein except as they pertain to Respondent, J C C Company and Son, Inc., which has been found not to be a part of Respondent Condrack's actions herein. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James C. Condrack, Jr. J C C Company and Son, Inc. Post Office Box 182 Sarasota, Florida 34230 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Dan Lee Isaacs is a real estate broker/salesman with the Petitioner, Key Realty, Inc. He seeks in this proceeding to have approved his dual licensure as a broker for Key Realty Management, Inc., as well as to retain his broker/salesman licensure with the Petitioner, Key Realty Inc. In his capacity as a broker/salesman for Key Realty Inc., he works under the supervision of Mr. Les Epperson, who is the licensed broker for that entity. Mr. Isaacs owns no stock in the corporation, Key Realty Inc. He does own stock and would be sole manager of the separate corporation known as Key Realty Management, Inc. Key Realty Management, Inc., is not affiliated in a subsidiary or other relationship with Key Realty, Inc., although there is some commonalty of ownership in that Les Epperson is a minority shareholder. The President and majority stockholder of Key Realty, Inc., Les Epperson, would have no part in the management of the operations of Key Realty Management, Inc. Mr. Isaacs desires, for personal and financial reasons, to remain active in the real estate sales field as a broker/salesman under the supervision of broker Epperson. He would, as sole manager and broker with Key Realty Management, Inc., engage in no sales activities, but rather solely in the management and supervision of various rental properties for clients of that firm. The two corporations maintain and would maintain separate accounting books and records; and, as pertinent, separate escrow and trust funds and accounts. It is to the advantage of both firms, both financially and in terms of legal liability, to maintain these escrow funds and accounts separately because of the financial and operational differences characteristic of a real estate management firm, as compared to a purely real estate sales operation as conducted by Key Realty, Inc. The Petitioner has complied with all requirements for qualification as a real estate broker pursuant to Chapter 475, Florida Statutes, and the rules promulgated thereunder. In October, 1980, the Petitioner applied for the above described dual licensure. The Respondent denied the application on the basis that an individual cannot be a broker and a broker/ salesman simultaneously. The principals of both corporations, Mr. Epperson and Mr. Isaacs, have submitted the affidavits and agreements pursuant to Rule 2IV-6.06, Florida Administrative Code, attesting to the absence of any conflict of interest stemming from Mr. Isaacs' licensure as a broker of the separate corporation and that both of them agree and consent to the dual registration. There is no dispute between the parties that in essence a "salesman" and a "broker/salesman" perform some of the same real estate transaction functions under the supervision of a licensed broker, for instance, the depositing with the broker of any escrow or other funds involved in a given real estate transaction for appropriate disposition and disbursement by the broker and acting in all other pertinent operative capacities under the supervision of a broker, rather than independently. The parties also did not dispute that the real basis for the "broker/salesman" designation in the licensing scheme in Florida is to allow a licensee to demonstrate to the public that a broker/salesman is clothed with additional internship, educational and experience credentials and is thus possessed of a greater degree of expertise in real estate transactions and operations than one licensed as a salesman. The Respondent however, in its argument during and subsequent to the hearing, apparently takes the position that a "broker/salesman" and a salesman perform identical functions; and, therefore, are legally to be considered as the same type of license and licensee, for purposes of establishing its legal position that since a salesman's license may not be issued to a person registered as an active broker unless the active broker's license is surrendered that neither may a person be dually licensed as both a "broker/salesman" and a broker.
Recommendation In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the pleadings and arguments of counsel, it is; therefore, RECOMMENDED that a Final Order be entered granting Dan Lee Isaacs a license as an active real estate broker for, and on behalf of, Key Realty Management, Inc., and allowing his retention of licensure as a broker/salesman with Key Realty, Inc. RECOMMENDED this 15th day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 15th day of September, 1981. COPIES FURNISHED: W. Kirk Brown, Esquire Post Office Box 4075 Tallahassee, Florida 32303 Randy Schwartz, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding are two-fold. First it must be determined whether Infiniti Realty, LLC (Infiniti) is guilty of having employed persons as sales associates who do not hold a valid and current licenses as sales associates. Secondly, it must be determined whether those individual sales persons, the Respondents in this case, operated as sales associates for any person or entity not registered as their employing broker, in violation of Subsections 475.42(1)(b)and (e), Florida Statutes (2002) and, derivatively, in violation of Subsection 475.25(1)(e), Florida Statutes (2002). If the violations or any of them are proven, it must be determined what if any penalty should be imposed on the Respondents' real estate licensure.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the statutory provisions pertaining to real estate licensure and to persons and entities holding real estate licensure and practicing the profession of real estate in Florida both as sales persons and brokers, in accordance with Chapters 455, and 475, Florida Statutes (2002), and rules promulgated thereunder. The Respondent, Infiniti was, at all times pertinent hereto, a real estate corporate brokerage licensed in Florida holding license number CQ1015795. The other named Respondents, at all times pertinent hereto, have been real estate sales persons licensed in the State of Florida. Infiniti is located at 511 North Oceanshore Boulevard, Flagler Beach, Florida 32136. The Respondents all practice their profession in Flagler Beach, Florida. The broker for Infiniti is Ms. Carolyn Cass-Lamore. The owner, a licensed sales person, is Mr. Sean O'Neill, who organized the new real estate brokerage known as Infiniti Realty, LLC in late 2002. Most of the staff, including the Respondents in question, had formerly been employed as sales persons at Connie Boyle Realty, located in the Flagler Beach area. The Respondents became increasingly dissatisfied with their practice and with business and working conditions at Connie Boyle Realty, because they felt that the business was not being properly operated. Consequently, they elected to leave Connie Boyle Realty and form their own firm, with Mr. O'Neill as owner and Ms. Cass-Lamore as the licensed broker. With this in mind, the Respondents all executed "forms 2050," which provide for a change of employer registration for sales persons and/or the means by which sales persons inform and record with the Petitioner agency their change of employment from one broker to another broker or brokerage. These forms were completed after consultation between Ms. Cass-Lamore and Mr. O'Neill on Friday, December 27, 2002. The Respondents Mr. O'Neill and Ms. Cass-Lamore had to act quickly to change the registration with the Department because a newspaper advertisement announcing the advent and operation of Infiniti Realty was published, or they learned that it was to be published, one or two weeks before they had requested it to be published. Consequently, they had to act hurriedly to inform Ms. Boyle that they were leaving the employ of her firm and to also file their appropriate change of registration forms with the Real Estate Commission (Commission), because they would have to get into business sooner than they had originally planned with the new firm. In any event, the change of registration forms were completed on December 27, 2002. Mr. O'Neill was to file the forms with the Real Estate Commission. Consequently, on that day, Ms. Cass-Lamore faxed the forms for all the Respondents to Mr. O'Neill in Philadelphia. He, in turn, dispatched the forms to the Petitioner agency by Federal Express from Philadelphia, for overnight delivery, to be received by the Commission on December 30, 2002, in order to comply with the statute regarding changes of registration and changes of employing brokers. This fact is supported by Mr. O'Neill's testimony and that of Ms. Cass-Lamore, as well as evidence of the transaction obtained by Mr. O'Neill and submitted in the form of Petitioner's Exhibit Nine, in evidence. The relevant documents for change of registration were also sent by fax to the local Board of Realtors for Flagler Beach. The Commission registered Infiniti as a corporation and Ms. Cass-Lamore as the broker, but for some reason did not immediately register the above-named Respondents, Ms. Mulligan, Ms. Turner, Ms. McDaniel, Mr. Steven Thomas, and Mr. O'Neill as being employed by the broker and corporation. In early January 2003, however, approximately January 4th, Mr. Thomas, one of the Respondents looked for his registration status on the Agency's website and, at that point, observed that he and the other Respondents had indeed been registered as being employed as sales agents with Infiniti. All the Respondents were thus notified that their status was active and legal at that point, in order to practice with Infiniti. For unknown reasons at a later time the registrations of the Respondents were either deleted from or not completed in the records of the Agency and Infiniti and the other Respondents were required to resubmit the form 2050. As result of contact with the Petitioner's investigator, this fact and the apparent lapse of registration (after registration had been originally recorded for the Respondents with Infiniti) resulted in charges being filed against the Respondents for practicing with a new broker without being properly registered as such. The greater weight of the evidence establishes that the Respondents genuinely believed that they were properly licensed. They exercised due diligence in filing the required documents to establish that their licenses were transferred or were to be transferred to Infiniti. Mr. O'Neill timely dispatched the required transfer documents to the Commission by Federal Express, overnight delivery, and it is most likely given the facts and circumstances proven, that the documents were received by the Commission. This is especially the case, given Mr. Thomas' testimony that in the first week of January he inquired of the Commission's website and observed that all of the Respondents were recorded thereon as having active licenses with Infiniti at that point. Sometime later, for unknown reasons, their names were apparently deleted from the Agency's record as being active licensee with Infiniti. The testimony of Mr. O'Neill and Mr. Thomas is accepted as credible in this regard. It is thus determined that the Respondents, due to efforts of Mr. O'Neill and Ms. Cass-Lamore, timely and reasonably exercised diligence in filing the required licensure transfer documents with the Real Estate Commission and the Respondents' names were recorded as having been transferred as to their licensure to the Infiniti brokerage. If their names were then deleted from the Agency's records sometime later, requiring them to be re-entered, effective February 11, 2003, it can only be presumed to have occurred through some ministerial error or omission. It may be, as Ms. Mulligan, in her testimony, opined, that only a portion of the licensure information was originally entered in the Commission's computer file and that the entirety of it was either mis-placed or entered much later.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is therefore RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding that the Respondents are not guilty of the statutory violations charged and that the administrative complaint be dismissed in its entirety. DONE AND ENTERED this 7th day of October, 2004, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 7th day of October, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate 400 West Robinson Street, Suite N-801 Orlando, Florida 32802 Steven W. Johnson, Esquire 100 South Bumby Avenue, Suite B Orlando, Florida 32803 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate 400 West Robinson Street, Suite N-802 Orlando, Florida 32802
The Issue Whether Respondent violated provisions of chapter 475, Florida Statutes (2016),1/ regulating real estate sales brokers, as alleged in the Administrative Complaint; and, if so, what sanctions are appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. Ms. Murata is a licensed real estate broker in Florida, having been issued license numbers BK 3266198, 3326041, 3330594, 3334183, 3338731, 3345773, 3346456, 3346845, 3350300, 3364670, 3366527, 3366441, 3368235, 3369788, 3372663 and 3378303. Ms. Murata is under the jurisdiction of Petitioner and subject to applicable statutes and rules. Ms. Murata is the owner of the Florida Qualifying Broker of Record Service and maintains the Internet website, http://floridabrokerofrecord.com, which states its business model to be an opportunity for Florida real estate sales associates to run their own real estate companies without having to share their commissions with the broker of record. Friendly International Realty, LLC ("Friendly"), was formed in June 2011. From March 3, 2016, to June 7, 2016, Ms. Murata was the qualifying real estate broker for Friendly. Ms. Murata agreed to receive a monthly fee of $289.00 in exchange for being the qualifying broker of record for Friendly. Ms. Murata did not physically visit the license location of Friendly, at 937 Northeast 125th Street, North Miami, Florida, 33161, during the time that she was the qualifying broker. Ms. Murata was not a signatory on any escrow account used by Friendly. Ms. Murata did not keep any of Friendly's brokerage records. From March 4, 2016, to November 21, 2016, Jean Berthelot was a registered real estate sales associate with Friendly. He acted as an independent contractor. Ms. Murata was aware that Mr. Berthelot was doing business on the Multiple Listing Service ("MLS"). After she became the broker for Friendly, Ms. Murata activated one sales associate to help Mr. Berthelot. Joan Feloney is the owner of the subject property. Audrey Flanders is a real estate broker acting on behalf of Ms. Feloney in her efforts to lease the subject property. Ms. Flanders received a contract to enter into a lease from Tamara Stanton, a real estate sales associate at Friendly, on behalf of Paul Allicock. Ms. Feloney accepted the offer. Mr. Allicock paid $2,350.00 to Friendly toward lease of the subject property in the form of signed money orders dated March 6 and March 18, 2016. The money was placed in a Friendly escrow account. These money orders were paid to engage the services of Friendly and Ms. Murata as broker in the rental of the subject property. Pursuant to a written statement signed by Ms. Feloney, $550.00 of this amount was to be paid to Friendly, and $1,650.00 was to be paid to Ms. Feloney. A lease agreement between Mr. Allicock as tenant and Ms. Feloney as landlord and owner of the subject property was executed on March 21, 2016. Mr. Berthelot wrote a check from the Friendly escrow account to Ms. Feloney for $1,650.00 on the same date. Ms. Feloney attempted to deposit the check, but on April 14, 2016, the check was returned to her marked "NSF," indicating that insufficient funds were in the account. She was charged a $15.00 return item fee. Under the agreement between Ms. Murata and Friendly, Mr. Berthelot was not authorized to have an escrow account or otherwise hold funds or assets on behalf of a third party. As for brokerage transactions, he was supposed to e-mail transactional records to Ms. Murata or place them in a dropbox. Neither Ms. Stanton nor Mr. Berthelot ever placed documents in the dropbox. But, as Ms. Murata told Investigator Percylla Kennedy, she did learn that Friendly was doing business on the MLS. Ms. Murata became aware of the Friendly escrow account on April 26, 2016, in connection with a complaint about a transaction unrelated to this Administrative Complaint. She discussed the escrow account with Mr. Berthelot on April 27, 2016. Ms. Murata requested that Mr. Berthelot close the escrow account, submit proof that he had closed the account, and turn over all contracts between Mr. Berthelot and current clients. Ms. Murata did not want to perform a reconciliation of the escrow account. As she testified in deposition: Q: When you learned that there were third party funds being held by Friendly International Realty, did you demand the records of that account so you could perform a reconciliation? A: No, because [sic] was to be closed, because I did not want to manage an escrow account. So when I discovered what he was doing, the agreement was that he was going to close it immediately. I was not going to manage an escrow account for him, so I demanded, what I demanded was proof that the account was closed and proof that he had engaged in a written agreement with a title company for all escrow funds. Q: Approximately when did you make that demand? A: The moment that Jessica Schuller came up and he confessed that he had kept the account from his previous broker. That he had not told me because he was going to close it. I threatened I was going to resign once he paid those funds to Jessica. But then I agreed to continue if he closed that account immediately. On May 10, 2016, a complaint was filed with the Department against Ms. Murata, as broker of Friendly, regarding the lease transaction involving the subject property. After Ms. Murata became aware that Friendly owed money to Ms. Feloney, she maintained regular contact with her brokerage in an attempt to ensure that the money owed to Ms. Feloney was paid. Ms. Murata cooperated with the Department's investigation. Ms. Feloney, through Audrey Flanders, requested on June 2, 2016, that the $1,650.00 and an additional service charge of $82.00 be paid within 15 days or a case would be filed with the state attorney's office. The parties stipulated that on June 7, 2016, Ms. Murata resigned from her position as broker of record for Friendly. She testified that she resigned because she had not received the documents or actions that she had requested of Mr. Berthelot. Ms. Murata did not write a check to Ms. Feloney to pay the amount Friendly owed her because, with an investigation underway, Ms. Murata did not want it to be construed as an admission that she had personally collected funds from Mr. Allicock. She also evidently believed that since she had resigned, she was not professionally responsible for obligations that arose during the time that she had been the broker. Ms. Murata convincingly testified that in another, unrelated, situation, she became involved as the broker to resolve a potential dispute by ensuring that the party entitled to funds was paid. On June 25, 2016, a Bad Check Crime Report was filed with the Broward County State Attorney's Office. By letter dated June 8, 2016, the Department requested that Ms. Murata provide copies of monthly reconciliation statements; bank statements and records; and sales, listing, and property management files of Friendly. As Ms. Kennedy testified, Ms. Murata never provided those accounts and records to the Department, saying she did not have them. While Ms. Murata insists that any failure was only because Mr. Berthelot actively kept information from her, the parties stipulated that Ms. Murata failed to maintain control of, and have reasonable access to, some of the documents associated with the rental of the subject property. Mr. Trafton, an experienced real estate broker and expert in real estate brokerages, reviewed chapter 475; Florida Administrative Code Rule Title 61J; the deposit paperwork of Mr. Allicock; the Bad Check Crime Report; the investigative report; and the Administrative Complaint. He prepared an expert report to the Department. As Mr. Trafton testified, the usual and customary standard applicable to brokers is that they must promptly deliver funds in possession of the brokerage that belong to other parties. Mr. Trafton also testified that the standard of care applicable to a broker in supervising sales associates requires active supervision. He also testified that a broker must maintain the records of the brokerage. Mr. Trafton testified that in his opinion, Ms. Murata failed to meet these standards. Ms. Murata failed to promptly deliver funds to Ms. Feloney that were in possession of the brokerage. Ms. Murata failed to manage, direct, and control Real Estate Sales Associate Berthelot to the standard expected of a broker of record. She did not actively supervise him, instead relying completely on Mr. Berthelot and other associates to provide her any information she needed to know. Ms. Murata failed to preserve accounts and records relating to the rental or lease agreement of the subject property. Petitioner did not clearly show that Respondent was guilty of either "culpable negligence" or "breach of trust." As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of this complaint through September 14, 2017, costs incurred by the Department were $1,443.75, not including costs associated with an attorney's time.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission: Finding Maria Camila Murata in violation of sections 475.25(1)(d)1., 475.25(1)(u), and 475.25(1)(e) as charged in the Administrative Complaint; imposing an administrative fine of $2,250.00; imposing license suspension for a period of two months; and imposing costs related to the investigation and prosecution of the case. DONE AND ENTERED this 2nd day of January, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 2018.
