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 At all times relevant hereto, Respondent, Jack W. Miller, was a licensed real estate broker having been issued license number 0060257 by the Petitioner, Department of Professional Regulation. Respondent, Robert D. Stewart, was a licensed real estate broker-salesman having been issued license number 0085004 by Petitioner. Miller was the broker for Jack Miller Realty, 319 Park Lake Circle, Orlando, Florida, and Stewart was employed as & broker- salesman by Systems Four, Inc., 1561 Lee Road, Winter Park, Florida (Petitioner's Exhibits 4 and 5). Belair Woods Subdivision is located west of Orlando, Florida, within the corporate limits of Ocoee, Florida. Miller began selling homes exclusively for Belair in 1971 and continued doing so until December, 1975. In late 1973, Miller sold a home in Belair Woods to Carlton and Willie Mae Hall, husband and wife. Miller left Belair in December, 1975 to open his own real estate firm, Jack Miller Realty, in Orlando. In January, 1977, Carlton Hall called Miller and advised him he wished to sell his home. Hall then signed an exclusive right of sale contract with Miller on January 19, 1977, to expire six months thereafter (Respondents' Exhibit 4). The contract provided for a $53,900 selling price and a 7 percent sales commission to Miller. The contract also noted that a second mortgage on the horse for a swimming pool was "net assumable" and "have (sic) to be approved". The $53,900 price was arrived at by comparing the selling prices of other new homes in the subdivision ($42,050), taking into consideration the "extras" that Hall had added to his home since its purchase, and an allowance for a 7 percent sales commission. During the six month period that the contract remained in effect, little interest was shown in the property by prospective buyers. In fact, only one person actually expressed an interest in purchasing it, but because of financing difficulties was unable to make an offer. The contract was subsequently renewed for an additional 3 months to and including October 19, 1977 (Respondents' Exhibit 6). 2/ The extension of the agreement contained the same terms and conditions as the original exclusive right of sale contract, including the selling price and a 7 percent sales commission. There were no offers made by prospective buyers during the following 3 months, and the listing expired in October. Miller advised Hall at that time that because of the lack of interest, "he better rest on it for awhile." On or about April 8, 1978, the Halls visited Miller's house and again requested Miller's services in selling their home. Because of a pending job transfer to another city in the state, Hall was anxious to sell his property. Miller and the Halls agreed upon a $53,900 selling price and a $500 sales commission for Miller. This agreement was embodied in an exclusive right of sale contract signed by the parties on April 8, 1978, to be effective for 6 months (Petitioner's Exhibit 1). Miller agreed to charge a $500 commission because Hall was a friend and he wished only to recoup the advertising expenses previously incurred under the prior listings. They also agreed that Miller would not have to advertise the property; however, he did place a sign in front of the house as well as list the property in the Multiple Listing Service. Miller advised Hall that if another realtor presented an acceptable offer, Hall would be liable for a sales commission which typically was 7 percent of the total sales price. Sometime thereafter, but still in the month of April, 1978, Respondent Stewart noticed the Halls' listing in the Multiple Listing Service and called Miller to inquire if the property was still on the market. Stewart also advised that he had prospective buyers (Steven and Linda Day) for the property. Miller replied that it was for sale, but that he (Miller) had agreed to charge only a $500 commission, and in order for another realtor to sell it, the selling price would have to be increased to compensate the Halls for a normal sales commission. Miller then called Carlton Hall, advised him of the situation, and told him that although the commission would be greater, the sales price would also be increased. Hall told Miller to have Stewart bring out the prospective purchasers to look at the house. An appointment was then made for Stewart to show the prospective buyers the horse within the next few day. After the Days were shown the home, they decided to present an offer which was executed on April 29, 1978 (Petitioner's Exhibit 2). The contract for purchase offered $59,100 conditioned upon the Days obtaining a $55,000 VA loan. The remainder was to be paid by cash at the closing. The offer was to expire at midnight on the same date. In arriving at a $59,100 sales price, Stewart increased the original asking price of $53,900 in order to cover a 7 percent sales commission and to compensate Hall for VA points that he would be required to pay. On the evening of April 29, 1978, Respondents visited the Halls to present the offer. At that time they discussed the estimated sales expense involved in the sale (Petitioner's Exhibit 3). Stewart told Hall he would receive "approximately the same as if they were selling it for fifty-three nine and paying a five hundred dollar commission." He did not tell them they would net the same amount. Miller also told Hall he would receive an amount "fairly close" to that which he would have received under the original asking price. Hall declined to sign the contract and instead requested an extension of time in which to review the offer until the next morning. This was agreed upon, and Hall retained the estimated sales expense overnight to study the figures. At 7:00 a.m. the next morning, Stewart returned to the Halls' home with the contract. The Halls modified the contract by increasing the sales price to $59,600; they also agreed to pay a 7 percent sales commission out of the proceeds. However, after reviewing the counter-offer, the Days rejected it that same morning. On May 18, 1978, while the listing agreement was still in effect, and unknown to the Respondents, the Halls sold their home to the Days for $55,900 (Respondents' Exhibit 7). Under the terms of their agreement, the buyer agreed to pay all closing costs while the seller agreed to pay a "real estate fee" of $500. Hall sent a $500 check to Miller, which Miller refused to accept. Miller and Systems Four, Inc. then filed suit in circuit court against the Halls seeking reimbursement for the 7 percent sales commission. They ultimately recovered $3,253.33 and certain costs (Respondents' Exhibit 1). The judgment of the circuit court was affirmed by the District Court of Appeals. Hall v. Systems Four, Inc., 383 So.2d 1220 (Fla. 5th DCA 1980). The Halls then filed a complaint with Petitioner that gave rise to this proceeding. During his dealings with the Days, Stewart and the Days discussed several alternatives for buying the Halls' home but only formalized one offer in writing. This offer was presented to the Halls on April 29, 1978. The second mortgage on the Halls' home was a home improvement loan from Winter Park Federal for a swimming pool. In order to assume that mortgage, a buyer would have to requalify with the lending institution by presenting a satisfactory financial statement. As a general rule, home improvement loans are not assumable and the representation by Stewart that the loan was not assumable was correct.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the charges against Respondents, Jack W. Miller and Robert D. Stewart, be DISMISSED. RECOMMENDED this 14th day of August, 1981, 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 14th day of August, 1981.
Findings Of Fact The facts here involved are undisputed. At all times here relevant Leroy Herron, Respondent, was registered with the Florida Real Estate Commission as a broker and active firm member of Chase Realty, Inc. Chase Realty, Inc. was a corporate broker, one hundred percent of whose stock was owned by Carl F. German, a non-registrant. At and prior to August 1977, Respondent Herron was employed at the Ramada Inn at Lake Worth as bartender. He had received his real estate broker's registration two or three years before, but had never actively participated in a real estate office or sold real estate. Carl F. German, a former comptroller for the business owning Ramada Inn, came into the Ramada Inn several times per month and during a conversation with Herron learned that Herron was a registered broker. German said he was in need of a broker and asked if Herron was interested. The conversation was general and no specific employment agreement was reached. Although German had Herron registered with the Petitioner as active firm member of Chase Realty, Inc., Herron was assigned no duties, provided with no office space or was ever invited to come to the office. German explained the firm's business at this time did not involve real estate sales and that he had Herron available in case a deal came up involving a real estate transaction. In August 1977 German brokered a deal to sell a liquor lounge known as Crazy Jim's to one Sheridan, who gave German a $5000 deposit on the transaction. Herron had no involvement in this deal and was totally unaware of it until Sheridan contacted him after he had, been unable to get his deposit back from German. The Deposit Receipt and Contract for Sale and Purchase (Exhibit 2) was prepared by the attorney for the seller and stated "This represents the purchase and sale of personal property only and the lease of the real estate." The contract provided for a commission of $5000 to Chase Realty, Inc. or one-half of the deposit in case the buyer forfeited. The $5000 down payment was deposited by German in an account of Chase Realty, Inc. on which German was the only authorized signature. When the transaction failed to close and the buyer demanded return of his deposit, German refused to return the deposit. A complaint by the buyer to the Petitioner led to the investigation and the charges here involved. German contends that the transaction was for the sale of a business only and that he was not involved with the lease recited in Exhibit 2, as that was between the buyer and the lessor. German readily acknowledged that he had made no specific arrangements with Herron to perform the functions of an active firm member broker but insisted that at this time the company was not engaged in any real estate transactions and that he had no need for a registrant. Upon being advised that he had been registered as active firm member of Chase Realty, Inc. Herron had his certificate removed from the Chase Realty Office and presumably placed his registration in an inactive status. He cooperated fully with the investigator for Petitioner and with the buyer regarding the return of the buyer's deposit. Carl F. German was tried on criminal charges resulting from the transaction leading to the charges preferred against Herron. Those criminal charges against German involved acting as a real estate broker without a license. The business card German showed to Herron had the name Carl F. German, President, Chase Realty, Inc. (address) Real Estate Brokers. Herron was not aware that German was not a registered real estate broker or that Herron was to be registered as the active broker of Chase Realty, Inc. when he agreed to have his license registered with Chase Realty, Inc.
The Issue Whether respondents' licenses as real estate brokers and salespersons should be disciplined for alleged misrepresentation, fraud, breach of trust, culpable negligence, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, violation of a duty imposed by statute and contract, and aiding and conspiring with other persons engaged in misconduct-- all in violation of Section 475.25(1)(b), Florida Statutes (1981).
Findings Of Fact On March 25, 1981, Elaine P. Stein, a licensed real estate salesperson, showed Mordechai and Nuti Antebi a house for sale at 1704 North 44th Avenue, Hollywood, Florida. The house was owned by Wayne L. and Gladys E. Hunter and listed with Murray Realty. The listing broker for Murray Realty was Warren Stein, and the salesperson directly involved in the listing was Alex Olson. Elaine Stein was a salesperson in the Emerald Hills office of Chinelly Real Estate, Inc.; the manager for that office was Frederick A. Lewis, a licensed real estate salesperson. (Testimony of Stein, Antebi, Olson, Lewis.) The Antebis, who were in the process of selling their present Pembroke Pines house through the Hollywood Hills office of Chinelly Real Estate, Inc., liked the house and expressed a desire to purchase it. They were told that if they assumed the existing mortgage on the Hunters' house, the interest rate would escalate on the day of closing. (Testimony of Olson, Stein.) The Antebis and Ms. Stein then returned to the Emerald Hills office where a written offer was prepared by Ms. Stein, Vilma Sardiello--a licensed real estate salesperson who frequently worked with her--and Alex Olson, the listing Murray Realty salesperson. Ms. Antebi told Ms. Stein and Ms. Sardiello that she had only $500 to place as an earnest money deposit. The purchase price was $106,000. Ms. Stein then spoke with Mr. Lewis, who advised her that the problem could be handled by executing an assignment of funds. Such an assignment would allow proceeds from the scheduled sale of the Antebis' Pembroke Pines house to be used in the Hunter-Antebi transaction. Ms. Stein, who was unfamiliar with assignments, then procured a written assignment of funds from Ms. Antebi for the sum of $19,500 and prepared a written offer. Ms. Antebi signed the offer and provided a $500 earnest money deposit. (Testimony of Stein, Olson, Sardiello, Antebi; P-1, R-1.) Immediately thereafter, Alex Olson, Murray Realty's listing agent, telephoned the offer to the Hunters in Ocala, Florida. He informed them that the Antebis were offering to purchase their house for $106,000, consisting of a $20,00 deposit, $15,000 at closing, and assumption of the current mortgage of approximately $43,000 at the prevailing interest rate. In addition, the Hunters were to take back a $28,000 purchase money mortgage at 12 percent for five years, with only interest payable monthly (He did not inform them that $19,500 of the $20,000 deposit was in the form of, an assignment of funds from the sale of the Antebis' Pembroke Pines house. He was unaware of the assignment, which Ms. Stein had inadvertently failed to disclose in the written offer.). The Hunters telegraphed their acceptance of the offer pursuant to Mr. Olson's instructions. (Testimony of Olson, W. Hunter, G. Hunter, Antebi, Stein; P-1, P- 4.) After receiving the Hunters' telegram, Ms. Stein realized that the phrase, "assignment of funds," had been mistakenly omitted from the written offer. She alerted Mr. Lewis, who, in turn, contacted Mr. Olson on March 26, 1981, and advised him that $19,500 of the deposit would come from an assignment of the proceeds from the sale of Antebis' Pembroke Pines house. Mr. Olson responded that he would not transmit another offer to the Hunters without a written letter from Chinelly Real Estate, Inc., verifying the amount of deposit held in escrow on the Hunter-Antebi transaction. (Testimony of Olson, Lewis, Stein.) Consequently, on March 26, 1981, Mr. Lewis telephoned Ann Shetter, bookkeeper and accounts supervisor at Chinelly Real Estate, Inc.`s main office. He asked her for the amount of money on deposit in the escrow account for the Antebi transaction. She replied that there was $8,000 held in escrow on the Antebi transaction; but she failed to indicate whether she was referring to the Hunter-Antebi transaction or the Antebi sale of their Pembroke Pine house which was being handled by another Chinelly Real Estate, Inc., office at that time. Mr. Lewis reasonably (although mistakenly) assumed that she was referring to the Hunter-Antebi transaction, the only Antebi transaction being handled by his office (He was unaware that the Antebis' Pembroke Pines house was being sold by another office of Chinelly Real Estate, Inc.). Instead, Ms. Shetter was referring to $8,000, which was being held in escrow, on the Antebis' sale of their Pembroke Pines house. (Testimony of Lewis, Shetter.) Mr. Lewis then in response to Mr. Olson's request, signed and delivered an escrow letter to Mr. Olson on March 26, 1981, verifying that Chinelly Real Estate, Inc., was holding $8,000 in escrow on the Hunter-Antebi transaction. (Testimony of Lewis; P-6.) Mr. Olson then telephoned the Hunters in Ocala on March 26, 1981, and told them that the deposit would be $8,000 instead of $20,000, and that $27,000 would be paid at closing instead of the agreed upon $15,000 (These changes did not affect the total purchase price.). He also told them that be felt an $8,000 deposit would be sufficient. The Hunters agreed to the changes and at Mr. Olson's request, sent a confirming telegram to the Emerald Hills office of Chinelly Real Estate, Inc. (Testimony of Olson, Hunter, Stein; P-5.) Shortly thereafter, Mr. Olson picked up the revised contract which had been prepared by Ms. Stein and signed by the Antebis; without reading it, he sent it to the Hunters for execution. This contract, fully executed by buyers and sellers, provided for a purchase price of $106,000, an initial $500 deposit, an additional deposit paid to Chinelly Real Estate, Inc.`s trust account on or before March 26, 1981, in the amount of $7,500, an assumption by buyers of an existing first mortgage held by American Savings and Loan at prevailing interest rate in the principle amount of $43,000, a $28,000 purchase money mortgage bearing interest at 12 percent for five years, interest only, payable monthly, balloon in five years, and approximately $27,000 due at closing, including $12,000 provided by assignment of funds from the sale of the Antebis' current house. (Testimony of Stein, Olson, W. Hunter, G. Hunter; P-2.) On April 9, 1981, Nancy Gooch, vice-president in charge of processing transactions for Chinelly Real Estate, Inc., discovered the discrepancy in the Hunter-Antebi transaction, that the contract indicated that $8,000 would be deposited in the firm's escrow account while, in fact, only $500 had been deposited. She alerted her boss, John Chinelly, Jr., a licensed real estate broker, who, upon further investigation, found the Lewis letter which mistakenly represented that $8,000 was held in escrow on the Hunter-Antebi transaction. (Testimony of Chinelly; P-9.) Mr. Chinelly, who was about to depart on a four-day religious retreat, called in Reginald D. Lucas, general sales manager and a licensed real estate broker, and instructed him to find out the facts surrounding the discrepancy and solve the problem. On April 9-10, 1981, Mr. Lucas called Mr. Lewis and obtained his explanation of the escrow discrepancy; after discussing alternative courses of action, Mr. Lucas told him to meet with Ms. Stein and Ms. Sardiello and decide how they would solve the problem. Various options discussed included: (1) canceling the transaction, (2) persuading the Antebis to place an additional $7,500 into escrow, and (3) depositing the personal funds of Mr. Lewis, Ms. Stein, and Ms. Sardiello to cover the escrow shortage. On Friday, April 10, 1981, and during the ensuing weekend, they discussed among themselves possible penalties, such as loss of their jobs and licenses, and what course of action would be ethical and proper. After Ms. Stein failed to persuade Ms. Antebi to place an additional $7,500 into escrow, the three real estate salespersons--Mr. Lewis, Ms. Stein, and Ms. Sardiello--reluctantly agreed to each loan the Antebis $2,500 to make up for the Hunter-Antebi escrow shortage (They obtained a promissory note dated April 10, 1981, from the Antebis requiring repayment when the Pembroke Pines house was sold.). (Testimony of Lucas, Stein, Lewis; R-5.) Mr. Lewis, Ms. Stein, and Ms. Sardiello acted on their belief that Murray Realty and the Hunters had been told of the escrow discrepancy and consented to their loaning money to the Antebis to make up for the difference. Mr. Lucas led them to believe that such was the case. Between April 10 and 13, 1981, he had telephoned Mr. Olson to tell him about the escrow shortage. Because Mr. Olson was out of town, he spoke with Warren Stein (unrelated to Elaine Stein), the listing broker for Murray Realty. He and Mr. Stein agreed that they should promptly notify the Hunters of the situation. (Testimony of Lewis, Stein, Sardiello, Lucas.) Shortly thereafter, on April 13, 1981, Mr. Lucas went to Mr. Stein's Murray Realty office for the purpose of jointly notifying the Hunters. In the ensuing telephone call, the Hunters were told of a problem with the escrow account, that the three sales persons--Ms. Stein, Ms. Sardiello, and Mr. Lewis- -had agreed to make up for the shortage by depositing $7,500 of their own money into escrow, and that the closing would be unaffected. The Hunters knew of and consented to the three salespersons contributing $7,500 into escrow (There is conflicting testimony on whether the Hunters were told of this $7,500 contribution. The Hunters deny it while Mr. Lucas insists they were told of and consented to the arrangement. Mr. Lucas's testimony on this question is accepted as persuasive. The Hunters' testimony conflicts with the statements contained in their complaint filed with the Department.). (Testimony of Lucas; R-7.) When Mr. Olson returned to Murray Realty on April 14, 1981, and learned of the events which had transpired in his absence, he requested written verification from John C. Chinelly, Jr., that the three real estate salespersons had placed the $7,500 in escrow. Mr. Chinelly verified that the money had been placed into escrow and wrote a letter to Murray Realty confirming that fact. At that time, Mr. Chinelly--based on his conversations with Mr. Lucas and Mr. Stein--also believed that the Hunters had consented to the salespersons depositing the additional $7,500 into escrow. (Testimony of Chinelly, Olson, Lucas; P-7.) Closing of the Hunter-Antebi transaction was scheduled for April 28, 1981. At closing, the Antebis complained about the condition of the roof, pool, and air conditioner. The Antebis also did not have sufficient funds to close the transaction. The transaction failed to close. (Testimony of Stein, Antebis, Olson.) Subsequently, the Antebis closed on the scheduled sale of their Pembroke Pines house. As a condition to this closing, $7,500 was placed into escrow pending a court decision on a complaint for interpleader filed in Broward County Circuit Court by Chinelly Real Estate, Inc., concerning the Hunter-Antebi transaction. At all times material to the proceeding, respondents John C. Chinelly, Sr., Richard M. Chinelly, Paul James Fleck, Nancy J. Gooch, Mary E. Hulsey, James A. Chinelly, John C. Chinelly, Jr., Shana Munden, Joseph Tresser, Reginald D. Lucas, Harold E. Whitter, Asa F. Brand, Josephine B. Shanefelt, Brett A. Slabe, William F. Kuemerle, Jr., and Marshall Feinsilber were the qualifying brokers for Chinelly Real Estate, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED: That the two administrative complaints and all charges against respondents be dismissed, with prejudice. DONE AND RECOMMENDED this 14th day of June, 1982, in Tallahassee, Florida. R. L. CALEEN, JR., 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 14th day of June, 1982. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36 Court Miami, Florida 33135 Howard Todd Jaffe, Esquire 1915 Harrison Street Hollywood, Florida 33020 Rodger L. Spink, Esquire 6600 Taft Street, Suite 404 Hollywood, Florida 33024 Michael J. Garavaglia, Esquire 3111 Cardinal Drive Vero Beach, Florida 32960 Vilma Sardiello 5207 Hayes Street Hollywood, Florida 33020 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the licensure and real estate brokerage and sales practice standards embodied in Chapter 475, Florida Statutes. The Respondent is a licensed real estate broker, licensed under that chapter. The Respondent, Keith Ellis, while engaged in the business of real estate development, entered into a contract whereby he would purchase a parcel of land adjacent to U.S. Highway 90, the "Scenic Highway," in Pensacola, Florida. That agreement was entered into in February, 1985, with the Respondent's purpose being to commence development of the property, consisting of eight residential lots, into a single-family residential subdivision. Mr. Ellis, in embarking upon his development plan, after entering into the contract for purchase of the subject lots, found that he lacked capital necessary to finance construction of certain infrastructure for the subdivision. He sought additional funding and ultimately was referred to Robert Tegenkamp as a potential investor. He entered into discussions with Mr. Tegenkamp and ultimately the two agreed that Tegenkamp would invest $25,000 in the project. In return, as consideration, Mr. Ellis agreed to repay the $25,000 investment to Tegenkamp within six months. He also agreed to pay Tegenkamp a $25,000 profit within twelve months. He prepared a written agreement to that effect, executed March 1, 1985. The Respondent also proposed to give Mr. Tegenkamp an option on one lot, Lot Number 8, in the planned subdivision, as further consideration for Tegenkamp investing the necessary capital. This option was executed February 28, 1985. The subdivision totaled eight lots, all of equal value, as established by the opinion of the Respondent himself, who is experienced in appraising real estate, and by M. Eugene Presley, a licensed M.A.I. appraiser. It was the intent of both Ellis and Tegenkamp, at the time of the signing of the agreement, that Ellis would seek to sell all the eight lots, including the lot on which Tegenkamp held an option. Both those parties also understood that Tegenkamp could not be repaid unless the lots were sold. Tegenkamp had no desire to take title to any lot in the subdivision and understood from the outset that he would be entitled to Lot 8, (or any lot), only if Ellis was otherwise unable to repay him. The Respondent arbitrarily chose to indicate Lot 8 on the option contract, but Tegenkamp had no special desire to acquire any interest in that particular lot. The true intent of the parties was simply that Tegenkamp have an option on a lot in the subdivision to secure him, in the event the debt was not repaid by Ellis. In view of the fact that the value of each lot was identical, it did not matter to Tegenkamp on which lot he had an "option," or other form of security interest. He never expected to get title to a lot and was never told that he would, by the Respondent or any other person. The Respondent has always acknowledged that he owes the money in question to Mr. Tegenkamp and that he was obligated under the "option" to convey one of the lots to Tegenkamp, if he could not repay him. Ellis borrowed the funds for acquisition of the property, and for coverage of most development costs, from the First National Bank of Escambia County. Before the agreements between Ellis and Tegenkamp were signed, he told Mr. Tegenkamp, who also did his banking business at the same bank, of the bank's involvement in financing the project. The Respondent suggested that Tegenkamp contact the loan officers involved to reveal his interest in the project. This Tegenkamp failed to do, nor did he ever record his option agreement. Consequently, the bank acquired a first priority lien on the eight lots by the execution and recording of the mortgage from Ellis to the bank, for financing the purchase, installation of the infrastructure and payment of other development costs. When Mr. Ellis obtained the $25,000 capital from Mr. Tegenkamp, he proceeded with his development plans. He negotiated a sale of all the lots in the subdivision to Ray Lemon, a general contractor. On May 10, 1985, he entered into a written sales contract with Mr. Lemon as to all eight lots. This contract required Ellis to proceed to complete all improvements, such as paving and drainage provisions, as well as to obtain approval of the plat of the subdivision by the City of Pensacola. Mr. Ellis informed Mr. Tegenkamp of this agreement with Mr. Lemon. Thereafter, on May 28, 1985, Mr. Ellis closed the loan with First National Bank of Escambia County, giving that bank a first priority mortgage lien on the entire subdivision. Shortly thereafter, the plat of the subdivision was accepted by the City of Pensacola. Most of the improvements installed by Ellis were complete by late July, 1985. Mr. Lemon then indicated to Ellis that he was having financial difficulties and needed to delay the closing of his purchase of the eight lots. If Lemon had been able to complete his planned purchase of all eight lots on time, Mr. Ellis could have paid Tegenkamp the agreed upon $50,000 and still netted about $10,000 profit himself. In any event, shortly after Ellis learned of the delayed Lemon closing, he was approached by Dr. and Mrs. Tousignant, who were interested in purchasing Lots 7 and 8. Dr. Tousignant owned a neighboring parcel of property and wanted to preserve his view of Escambia Bay by acquiring ownership of Lots 7 and 8. The Respondent obtained Mr. Lemon's approval to sell Lots 7 and 8 to the Tousignants and also informed Mr. Tegenkamp of the proposed sale to the Dr. and his wife, as Mr. Tegenkamp himself admitted. Mr. Tegenkamp approved of Ellis selling the lots in question, and on August 25, 1985, Ellis entered into a written agreement to sell Lots 7 and 8 to the Tousignants. The sale was closed on September 17, 1985, but did not produce enough money for Ellis to pay off Tegenkamp. Tegenkamp had not demanded payment at this time anyway and the final time limit for repayment had not elapsed. Thereafter, Ray Lemon encountered more financial problems and for several months was unable to close the planned purchase of the remaining six lots. Eventually, Lots 3, 4, 5 and 6 were sold to Ray Lemon and K. C. Hembree. These closings took place between January and March, 1986. The sales did not produce enough funds to pay off Tegenkamp because of development expenses which had to be covered, mortgage release amounts and interest attributable to each lot, which had to be paid to the bank holding the first mortgage. The Respondent thus retained ownership of only Lots 1 and 2 by the end of March, 1986. His ownership of these two lots was subject to the first mortgage to the bank, the principal balance of which remained at approximately $20,600. That mortgage was subsequently assigned to Ray Lemon who had payed off the bank. Lemon now holds that mortgage. The Respondent has attempted, without success, to sell the remaining two lots. Because of economic conditions prevailing, the value of each of the two remaining lots declined from an estimated $59,000 in March, 1985, to about $50,000 by April, 1986. Because Ellis did not timely pay the $25,000 required by the original agreement, Mr. Tegenkamp retained an attorney to represent him in seeking repayment. Attorney Miles Davis entered into various discussions with Ellis from November, 1985 through April, 1986. In December, 1985, Ellis had proposed to Davis that he deliver to Tegenkamp a quit claim deed conveying his interest in Lot 1 to Tegenkamp. Ellis could not give a warranty deed because title was then encumbered by the above-mentioned mortgage held by Lemon, as assignee of the bank, and because of a potential claim of lien by the paving contractor for $7,000 to $8,000. The contractor since failed to pursue and perfect his claim of lien. In February, 1986, Attorney Davis wrote to Ellis expressing a willingness to accept a quit claim deed on behalf of Tegenkamp. In April, 1986, Ellis delivered the quit claim deed to Davis, conveying his interest in Lot 1 to Tegenkamp. It was recorded in the public records of Escambia County. Davis then filed a civil suit against Ellis in May, 1986, on behalf of Tegenkamp. The parties since arrived at a settlement of that litigation whereby Tegenkamp is to receive approximately $25,000 and Lot 1 will be re-conveyed to Ellis. Tegenkamp's attorney, Miles Davis, testified that Ellis never denied owing the money to his client and every indication was that the Respondent was trying to sell the property as soon as possible to pay his obligation to Tegenkamp. Mr. Tegenkamp himself testified and acknowledged that the Respondent was not trying to take advantage of him, but was simply "someone who had gotten himself into a bad deal."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint be DISMISSED in its entirety. DONE and ENTERED this 22nd day of February, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0228 Petitioner's Proposed Findings of Fact: The Petitioner filed no proposed findings of facts. Respondent's Proposed Findings of Fact: 1-41 Accepted. COPIES FURNISHED: Danny L. Kepner SHELL, FLEMING, DAVIS & MENGE Seventh Floor, Seville Tower Post Office Box 1831 Pensacola, Florida 32598 Arthur R. Shell, Jr., Esquire Senior Attorney Division of Real Estate 400 West Robinson Post Office Box 1900 Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Herbert Goldman is a registered real estate broker holding license number 0032343 issued by the Florida Real Estate Commission. Herbert Goldman maintains an office at the Robertson Building, Ocala, Florida, consisting of at least one closed room, wherein negotiations and closings of real estate transactions of others may be conducted and carried on with privacy and where the books, records, and files pertaining to the real estate transactions of Herbert Goldman are maintained. On the entry way to the Robertson Building, Ocala, Florida, there is a Building Directory and on this directory, there appears "Goldman, Herbert, Realtor, Room 214." See Exhibit 4. On the second floor of the Robertson Building, Ocala, Florida, in Room 214, Herbert Goldman maintains the office described above outside of which is a sign stating the following: "Herbert Goldman, Registered Real Estate Broker." It was admitted that the second floor of the Robertson Building is generally closed to public and that the Robertson Building is owned by the Estate of Mr. Herbert Goldman's deceased father. By direct contact with Herbert Goldman or his brother, an attorney who maintains an office on the first floor of the Robertson Building with access directly to the street, authorized persons may gain access to Herbert Goldman's office. Herbert Goldman engages in an active real estate brokerage primarily consisting of site location for shopping centers and similar developments for clients throughout the United States. Herbert Goldman does not solicit nor desire to participate in a general real estate practice. Goldman makes no pretense that he maintains an office in Room 214 of the Robertson Building, which is at all times staffed and which is an office in the conventional sense. However, Goldman does maintain an active brokerage practice visiting clients in various portions of Florida and in other states in the course of his brokerage business. Due to the nature of transactions which Goldman is involved in, all of the closings are conducted in the business offices of the firms with which he does business or of their attorneys. The foregoing Findings of Fact are substantially identical to the general proposed findings submitted by Goldman.
Recommendation At hearing, the forthrightness of Mr. Goldman was evident, and it was clear that he did not desire to be uncooperative with the Commission or to flaunt its rules. His concern was that to maintain an accessible office would create more problems than it would solve. He felt that such an office would appear to be closed and "inactive", and to avoid this problem he would have to hire office staff to advise people he did not handle general real estate. This would be an unnecessary expense for him and would possibly create misunderstandings. It was, therefore, simpler to maintain his office where it has been for many years, from where, although inaccessible to the public, he centers his brokerage activity. Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no disciplinary actions be taken. In view of Goldman's general cooperativeness and the fact that he is not totally pleased with the security of his office, it might be useful and beneficial for the Commission to examine with Goldman alternatives which would be acceptable to all concerned and would result in office accommodations which re more conventional and secure but which would not prevent a confusing picture to the public. DONE and ORDERED this 25th day of July, 1977, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mary B. Steddom, Esquire O'Neill & Steddom Post Office Box 253 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, vs. PROGRESS DOCKET NO. 3123 MARION COUNTY HERBERT GOLDMAN, DOAH CASE NO. 77-443 Defendant. /
Findings Of Fact The Respondent Karen Kay Colucci, whose license No. is 0062107,is a registered real estate salesman in the State of Florida. The Respondent is employed by Magnolia Homes, Inc., 300 Embassy Boulevard, Port Richey, Florida. The owner of the business is David Lukacher. On May 20, 1976, Harvey Thompson and his wife Mary Thompson looked at model homes built by Magnolia Homes, Inc. They were assisted by a registered real estate salesman for Magnolia Homes, Inc., Patrick D. DePianto. Mr. and Mrs. Thompson told the real estate salesman that they wanted to build a house but wanted to sell their own house first. Mr. and Mrs. Thompson found a lot and model home they desired and then proceeded to Mr. DePianto's office to make a deposit. The office in which the transaction took place is a large room in which several people worked for the builder including the Respondent Karen Kay Colucci who is the sales manager. Mr. DePianto's desk and work area was in rather close proximity to Mrs. Colucci's desk and work area. Mrs. Colucci was not involved in the assistance to the Thompsons in locating a lot and model home and was not directly involved with Mr. DePianto and Mr. and Mrs. Thompson at the time the transaction under consideration took place. At the time of making the deposit Mr. and Mrs. Thompson asked Mr. DePianto if they could get their deposit back if they did not sell their home. Mr. DePianto called over to Mrs. Colucci and asked if a refund could be made if the Thompsons could not sell their house and, satisfied with the answer, assured the purchasers that there would be no problem. A check was written out for five hundred ($500) dollars and handed to Mr. DePianto and a receipt was written out by Mr. DePianto and handed to the Thompsons. There was no representation on the receipt written by Mr. DePianto concerning the refundability of the deposit. The Thompsons did not request that the representation be included on the receipt. Mr. and Mrs. Thompson left the office feeling that there would be no problem obtaining a refund of the deposit if they could not sell their home , although they were confident that the sale of their home was imminent. Thereafter the expected sale of Mr. and Mrs. Thompson's home was not consummated and the Thompsons asked Mr. DePianto for a refund of the deposit. Mr. DePianto asked for the request to be in letter form and Mr. Thompson complied. Thereafter he was advised by Mr. DePianto that the builder, Mr. David Lukacher, would not return the deposit but would hold the $500 until they were able to buy one of their homes and credit that amount to the purchaser. Mr. Thompson requested Mr. DePianto to put the discussion in letter form which Mr. DePianto did. Mr. Thompson wrote Mr. Lukacher a letter and called him on the telephone requesting that the deposit be refunded but no refund was forthcoming. Approximately six months later Mr. DePianto sent Mr. and Mrs. Thompson a check for $250, half of the deposit, plus 7 months of interest at 6 per cent per annum. The remainder of the deposit has not been returned to Mr. and Mrs. Thompson and Mr. Lukacher retains the $250, having previously sent $250 of the $500 deposit to Mr. DePianto. Petitioner Florida Real Estate Commission contends: that the Respondent Karen Kay Colucci knowingly misrepresented to the Thompson's that there would be no problem obtaining a refund of the $500 deposit if the Thompson's could not sell their home; that such representation means the Respondent is guilty of misrepresentation, false promises, false pretences, culpable negligence, or breach of trust in a business transaction and that therefore her license should be suspended. Respondent contends that she was doing other work at the time the subject transaction took place and that she had no involvement with the transaction between Mr. DePianto and the Thompsons. Respondent further contends that in reply to the question posed to her by Mr. DePianto in the busy office that a refund could be made providing Mr. Lukacher, the builder, approved it. The hearing Officer further finds: There is no consistent testimony by the witnesses as to exactly what was said in reference to a refund at the time Mr. and Mrs. Thompson were seated at the desk of Mr. DePianto. There is no consistent testimony as to what exactly Mr. DePianto asked the Respondent or what her answer was. Mr. and Mrs. Thompson failed to request that the receipt reflect that the deposit was conditional and would be returned if the Thompson's could not sell their home. Mr. DePianto did not make the receipt a conditional receipt. Mr. David Lukacher, the builder, refused to refund the deposit to the Thompsons, kept $250 of it, and sent Mr. DePianto the salesman, $250. Mr. DePianto refunded his share of the deposit plus interest to the Thompsons.
Recommendation Dismiss the complaint. DONE and ORDERED this 23rd day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth A. Meer, Esquire Staff Counsel Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Karen Kay Colucci Magnolia Homes, Inc. 300 Embassy Boulevard Port Richey, Florida 33568
Findings Of Fact Prestige Realty, Inc. and Anthony C. Cappello were at all times here relevant registered with the FREC as alleged. Mrs. Cappello, wife of Respondent, is a salesperson with Prestige Realty, Inc. Prestige Realty, Inc. is an Electronics Realty Associates (ERA) franchisee and actively promotes the ERA Homeowners warranty Plan which will, for a fee, warrant to pay for repairs to structure and equipment within the first year of purchase all costs over the minimum for which the policy is written. While showing prospective purchasers William and Dora Keys various properties, Mrs. Cappello told them about the ERA Buyers Protection Plan (BPP) and the Keys expressed an interest in having same, particularly if the seller would pay for it. Mrs.. Cappello has worked with the Keys for several months showing them various properties for sale. Thomas Hanrahan listed his home for sale with B & M Real Estate as listing agent at a price of $52,000 on 31 January 1977. On April 28, 1977 Mrs. Cappello obtained an offer from William and Dora Keys to purchase Hanrahan's house for $49,000. Keys had inherited some money, and after seeing the Hanrahan house which they liked, made an offer to purchase the property for $49,000 including the drapes and BPP. Inclusion of the BPP in the offer was suggested by Respondent Cappello and/or Mrs. Cappello. The fact that an offer had been received was communicated to the listing salesperson and the listing agent met the Cappellos to present the offer to Hanrahan. Respondent Cappello, who had accompanied his wife to present the offer, first discussed the contract conditions, including drapes and BPP, before revealing the offering price to Hanrahan and the listing broker's agent. When Respondent revealed the $240 premium for BPP Hanrahan remarked it was a "rip- off"; however, Respondent Cappello emphasized that the seller shouldn't mind paying this premium if the selling price of the home is right. After obtaining Hanrahan's agreement to the BPP "if the price is right', Respondent disclosed the offering price of $49,000. Hanrahan refused this offer and made a counter offer of $51,000, which was communicated to the buyers who re-countered with a $50,000 offer. At no time during these negotiations did Respondents advise Hanrahan that Prestige Realty would receive 25 percent of the premium the contract provided the seller would pay for the ERA BPP. Of the $240 premium paid for the BPP, $C0 was retained by Respondent, Prestige Realty, and the remaining $180 was forwarded to ERA. When the offer of $50,000 was presented to Hanrahan by Respondent Cappello, it was represented to be the buyers' final offer, that the ERA BPP was an essential element of the offer, and if not accepted by the seller they would find the buyers another house. The Keys never insisted to Cappello that the BPP be included in their offer, and both William and Dora Keys testified they would have paid $50,000 for the Hanrahan home without the BPP. Attempts by Hanrahan to share the cost of BPP with the buyers or discourage their insistence upon having this policy provided were rebuffed by Respondents. Following the closing the Keys were offered the option of taking a lower deductible on the BPP than $100, but after being advised the additional cost to them for a lower deductible, it was declined. Respondents and other ERA franchisees consider the BPP to be a good selling tool in the conduct of their business. In addition to the BPP, ERA offers a sellers protection plan which, if the seller lists his house with an ERA franchisee and agrees to pay for a BPP when the house is sold, will insure the seller from failure of certain equipment (less a deductible) during the period the house is listed before sale.
