Findings Of Fact James V. Hodnett, Jr., was registered as a real estate broker in 1974 and has been continually so registered since that time (Exhibit 7). Sea Pines Realty, Inc.'s Articles of Incorporation were filed December 13, 1977, and it was authorized to operate as a Florida corporation on December 15, 1977. Respondent, Sea Pines Realty, Inc., applied for registration as a corporate real estate broker on January 14, 1978, with James V. Hodnett, Jr., as president and active firm member. Request for initial certification for corporation was forwarded to the Florida Real Estate Commission on January 20, 1978, and license was issued to Sea Pines Realty, Inc., as a corporate broker effective February 9, 1978 (Exhibit 6). Of those nine witnesses who purchased homes or lots in Sea Pines, only one of these witnesses, William Barnes, purchased a lot (or home) in Sea Pines later than 1977. Mr. Barnes purchased his home in 1979 from the previous owner and neither of Respondents was involved in or had any influence on that transaction. Mr. Miller testified on direct examination that he had searched the public records and learned that Hodnett had owned the land abutting Sea Pines to the north which was sold to Belcher mines, that Belcher mines set off explosives to blast rock in those mines, and that his house was damaged by those explosives. Upon cross-examination, Mr. Miller admitted that he could not say for certain that the property had been sold to Belcher by James Hodnett, Jr., or James Hodnett, Sr., and that it could have been sold by the latter. In addition to Miller, who purchased his property in 1976; Wurst, who purchased in 1971; Morgal, who purchased in 1977; Farrelly, who purchased in 1971; Leggiere, who purchased in 1976; Senderling, who purchased in 1976; Anderson, who purchased in 1969; and Campbell, who purchased in 1971, all testified that they purchased their properties through, and had contact with, Jean Humphries, who was the salesperson for the developer of this property. Representations regarding the plans to build a golf course, to install underground utility lines, and other representations constituting the gravamen of these charges were all made by Ms. Humphries and none of these representations was made by Hodnett.
Findings Of Fact Mr. Harry A. Bayly, Jr., a real estate salesman, obtained a listing for the Sails Motel in 1975, while he was employed by respondent Donald M. Mlinarich, a real estate broker. Mr. Perz, at that time co-owner with his wife of the Sails Motel, showed Mr. Bayly a piece of paper on which he had written figures which he claimed represented gross income earned and expenses incurred on account of the Sails Motel. At the same time, Mr. Perz told Mr. Bayly that the figures on the piece of paper did not agree with federal income tax returns, or with state sales tax returns which Mr. Perz had filed. Mr. Perz told Mr. Bayly that income from the motel was understated on the tax returns, but that the figures he alleged were accurate could be substantiated by examining the motel's registration slips. The discrepancy between the gross income figure reported for tax purposes for 1974 and the gross income figure Mr. Perz gave Mr. Bayly for 1974 was twenty thousand dollars ($20,000.00). Mr. Bayly did not tell Mr. Mlinarich about the double bookkeeping at the Sails Motel. Mr. Charles George was also a real estate salesman in Mr. Mlinarich's office. Mr. George procured a purchaser for the Sails Motel, one Anton K. P. Loetschert, who signed a duly witnessed agreement to buy the motel. Before the transaction closed, however, Mr. Loetschert appeared at the Sails Motel, accompanied by an accountant, and asked to see the motel's books. Learning for the first time of the dual bookkeeping, Mr. Loetschert indicated his unwillingness to go through with the purchase. Even though the deal fell through, the broker's office obtained five thousand dollars ($5,000.00) in satisfaction of its claim for commission on the sale. Mr. Mlinarich caused half of this sum to be paid to Mr. George, in accordance with a standing agreement between Mr. Mlinarich and each of his employees. Under the same standing agreement, Mr. Bayly, because he had secured the listing, had presented Mr. Loetschert's offer, and had otherwise assisted in the transaction, was entitled to one fifth of any commission, or one thousand dollars ($1,000.00). By letter dated September 23, 1975, Mr. Bayly demanded this sum, but Mr. Mlinarich refused payment at that time, on the advice of counsel. In addition to the circumstances surrounding the Sails Motel transaction, Mr. Mlinarich related the following facts to his lawyer which were proven to be true at the hearing: On at least two occasions, Mr. Bayly added provisions to listing contracts of which he did not inform Mr. Mlinarich, so that Mr. Mlinarich was lead to believe and did believe that the property owners involved had agreed to pay a broker's fee if the property were sold within 180 days of listing, while in actuality the owners contractual obligations were subject to termination earlier, and were in fact terminated early. Mr. Bayly accomplished this by writing additional contract clauses in his own hand on the sellers' copies of the contracts, while taking care that his handwriting did not appear on the realtor's carbon copies. Mr. Mlinarich and the other salesmen in his office advertised the properties and took other steps in the mistaken belief that the property owners were legally bound for the full 180 days. Mr. Mlinarich's lawyer advised him that he had a claim against Mr. Bayly for damages in excess of one thousand dollars ($1,000.00) and told Mr. Mlinarich he need not pay Mr. Bayly his share of the commission settlement, for that reason. Shortly after Mr. Mlinarich learned that Mr. Loetschert wanted his earnest money back, he advised Mr. George Illi, an investigator for the Florida Real Estate Commission, of the details of the Sails Motel transaction. Mr. Mlinarich kept Mr. Illi posted as matters developed, through and including the time of the dispute between over payment of the one thousand dollars ($1,000.00). Altogether, Mr. Mlinarich spoke to Mr. Illi, on the telephone and in person, between five and ten times. He kept Mr. Illi fully apprised of every detail, including his lawyer's advice to pay Bayly. When the administrative complaint was filed against Mr. Mlinarich, he caused Mr. Bayly to be paid one thousand dollars ($1,000.00) in full satisfaction of Mr. Bayly's claim.
Recommendation It is strongly recommended that no disciplinary action be taken against respondent. DONE and ENTERED this 15th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Emerson L. Parker, Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733
The Issue Whether petitioner's application for licensure as a real estate salesman should be denied because he allegedly lacks the requisite honesty, trustworthiness, truthfulness, good character, and good reputation for fair dealing.
Findings Of Fact On June 10, 1983, petitioner filed an application for licensure as a real estate salesman with the Florida Real Estate Commission. Question No. 6, on the application, reads: Have you ever been arrested for, or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full. Question #6 was answered by Petitioner as follows: Feb. 11, 1979 arrested - (hit & run & possession of cocaine) [sic] Case #79521C. In hit & run charge - (felony was dropped) In the cocaine [sic] charge 3 yrs. probation (Aug. 1, 79, Aug. 1, 82). Also (July 11, 80) went to court for loitering or prowling charge - Pleaded no contest and paid $25 court cost - Case No. 80-4630mm. On August 17, 1983, the Commission tentatively denied his application because of his criminal record disclosed by this answer to Question No. 6. His answer was truthful and correct. On February 11, 1979, he was arrested in Lake Worth, Florida, and charged with possession of cocaine and hit and run. The hit and run charge was dropped and, on August 1, 1979, he pled guilty to the charge of possession of cocaine. He was adjudged guilty and sentenced to three years of probation. On April 22, 1980, while on Probation, petitioner, was arrested in Boynton Beach, Florida, charged with loitering or prowling, and later convicted. II. Petitioner, 22, was 18 years old in 1979, when he was arrested, and convicted of possessing a small amount of cocaine. The seriousness of his loitering or prowling conviction, which occurred in the next year, is revealed by the minimal sentence he received--a $25 fine. That was his last unlawful act, and it occurred almost four years ago. During the last two years, his life and character have changed dramatically. He avoids illicit drugs; he works 60 hours a week as a salesman in a West Palm Beach furniture store; and he is the sole support for his 2 year old daughter, Keisha. Both he and his friends attribute his change in lifestyle and character to the love and responsibility he feels for Keisha, whose mother left him approximately a year ago. Two character witnesses, admittedly his friends, know petitioner to be an honest, trustworthy, and straight-forward person. They have been impressed by his willingness to accept responsibility for his young daughter and raise her almost single-handedly; by his willingness to work hard as a salesman and improve his lot. Both witnesses are reputable real estate brokers or salesmen in Florida. One has been in the real estate business for 11 years, is president of the largest realtor office in Palm Beach County, does a real estate radio talk show, and teaches and publishes articles on investing in real estate. He has known petitioner for about three years and stated, without hesitation, that he would hire petitioner if he obtains a real estate license. The other witness, licensed since 1977, has known petitioner since boyhood and believes that respondent would make a good real estate salesman. The opinions of these character witnesses are persuasive and supported by other convincing evidence. Until recently, when he began working at a West Palm Beach furniture store because of the opportunity for increased sales, he had worked at a Lake Worth furniture store for 3 and 1/2 years. He began as a delivery boy, was promoted to part-time sales, then full-time sales. He opened the store four to six days a week. For the last four years, he has been a stable, productive and, by all accounts, reliable employee. The Commission has not alleged or shown otherwise. Petitioner's completion of his application, and his candor and demeanor at hearing, provide further evidence of his character and honesty. On his application he truthfully and fully disclosed his previous arrests and convictions. At hearing, he candidly admitted his past indiscretions or unlawful acts, and expressed a sincere desire for an opportunity to become a real estate salesman: Yes, I would very much appreciate an opportunity to take the test. Like I say, my four years is a very long time. I don't know if it is for most people. It's been a long time for me. My lifestyle, you could really call it boring. Like I say, I am working sixty hours a week and taking of the business with the baby just about the rest of the time, and ninety percent of my spare time is spent with her. I am trying to prove something to you today that I already know in my heart, and that is that I would not cheat anybody and I do have a general fair and loving outlook on life. That's all. (TR.-28) Based on the above, it is concluded, as an ultimate finding, that petitioner is honest, truthful, and trustworthy, and has good character and reputation. His conduct, over four years, demonstrates that he possesses these qualities. Two licensed real estate professionals, aware of his past misdeeds, enthusiastically vouch for his good character and ask that he be given an opportunity to become a salesman. It appears likely that his licensing, should he pass the examination, will not endanger the interests of the public or real estate investors.
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioner be found qualified, under Section 475.17, and that, upon passing the required examination, he be licensed as a Florida real estate salesman. DONE and ENTERED this 16th day of February, 1984, 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 16th day of February, 1984.
Findings Of Fact At all times material hereto Respondent James M. O'Nan was a licensed real estate broker in the state of Florida having been issued License No. 0222587. At all times material hereto Respondent International Real Estate Consultants, Inc., was a corporation registered as a real estate broker in the state of Florida having been issued License No. 0222586. At all times material hereto Respondent O'Nan was the qualifying broker for and president of Respondent International Real Estate Consultants, Inc. On or about May 29, 1984, Respondents solicited Dr. Murray Heiken to invest in a limited partnership for the purpose of acquiring real property located in Miami at South Dixie Highway and Southwest 67th Avenue to be used as the site for a bank. Respondents represented in that solicitation that all monies would be placed into an interest-bearing escrow account. The minimum investment solicited by Respondents was $28,000. On or about June 6, 1984, Murray and Rosalyn Heiken gave Respondents $28,000 to be placed in Respondents' escrow account. On or about September 25, 1984, Respondents again solicited Dr. Murray Heiken and Rosalyn Heiken regarding the sale of the Nautilus Hotel in Miami Beach. On or about October 1, 1984, Dr. Murray Heiken, Rosalyn Heiken, and Dr. Bruce Heiken paid $14,000 to Respondents toward the Nautilus Hotel purchase. On or about February 25, 1985, Respondents informed Dr. Murray Heiken and Rosalyn Heiken that the Nautilus Hotel transaction had been terminated. Respondents offered a new project and requested an investment of $24,000 from the Heikens. Dr. Murray Heiken paid $24,000 to the Respondents. On or about February 24, 1986, Respondents notified the Heikens that the other transaction did not close. The Respondents stated that all deposits would be refunded. On or about June 23, 1986, Respondents notified Dr. Murray Heiken that they were still liquidating the partnership and that the investors should be patient. Despite repeated demands made, Respondents have failed to return any monies to the Heikens although those monies were required to have been maintained in escrow and even though none of the properties were purchased by the partnership.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding Respondents James M. O'Nan and International Real Estate Consultants, Inc., guilty of the allegations in the Administrative Complaint and revoking their licenses as real estate brokers. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 James M. O'Nan International Real Estate Consultants, Inc. c/o Fort Loudoun Investments, Inc. 11020 Kingston Pike Knoxville, TN 37922 James M. O'Nan International Real Estate Consultants, Inc. c/o Patricia O'Nan Crews 6850 Cassia Place Miami Lakes, Florida 33014 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent's license as a real estate broker should be suspended, revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes as set forth in the Administrative Complaint dated September 3, 1981. By Notice of Hearing, dated October 26, 1981, this case was set for hearing to be held on December 17, 1981. However, on December 3, 1981, another Administrative Complaint seeking to take disciplinary action against Respondent by Petitioner's Construction Industry Licensing Board was referred to the Division. In view of the fact that both complaints alleged matters arising out of the same transaction, Petitioner's Motion to Consolidate for purposes of hearing was granted and the final hearing was rescheduled for March 10, 1982. The complaint herein alleges that Respondent, a licensed real estate broker, in her capacity as a certified residential contractor and as President of CAT Development, Inc., a construction firm, contracted to build a dwelling for Jenny Soto, and received full payment under the contract, but abandoned construction prior to completion, permitted the property to deteriorate, and has not refunded monies due the purchaser. It is therefore alleged that Respondent violated Subsections 475.25(1)(b) and (d), Florida Statutes.
Findings Of Fact Respondent Catherine W. Grabhorn is a licensed real estate broker, doing business ads CAT Realty Company at East Palatka,Florida. She was so licensed at all material times alleged in the Administrative Complaint. (Testimony of Respondent) Respondent is also a certified residential contractor operating as CAT Development, Inc. at East Palatka, Florida, and was so licensed at all material times alleged in the Administrative Complaint. (Testimony of Respondent) In October, 1978, Jenny Soto, Bronx, N. Y., accompanied other prospective land purchasers to Palatka, ,Florida, where she was shown and purchased a lot for $10,000 at a development known as P & B Ranchettes. The group had traveled to Florida in a van. After the land purchase, the driver of the van took Soto and the others to Respondent's combination real estate and construction firm office where Respondent showed the group a catalog of various homes for possible construction on the lots which had been purchased. Soto saw a split level design that she liked, and Respondent told her that she could build it for $43,000, with the garage and the below ground level part of the split level to be unfinished, and without appliances. A contract was entered into between Respondent as President of CAT Development, Inc. and Soto on October 22, 1978. The contract provided for payments of $13,000 on October 24th, $25,700 on November 12th and the balance of $4,300 due on completion of the house. However, no completion date was stated in the contract. (Testimony of Respondent, Soto, Petitioner's Exhibits 16-19) On October 24, 1978, Respondent flew to New York City to obtain the initial payment under the contract. Soto met her at the airport and paid $13,000. At that time, Soto asked Respondent when house construction would commence, and Respondent indicated that she needed additional money for materials. On November 30, 1978, the parties entered into a new contract to add additional features to the house, including a finished downstairs and garage, and appliances. The new contract price was $47,600, which reflected that $13,000 had been paid, $20,000 was due on December 1, 1978, $10,000 due on January 15, 1979, and the balance of $4,600 due on completion of the house. Again, no time for completion was stated in the contract. Pursuant to the agreement, Soto paid Respondent $20,000 on December 1, 1978 in New York City where the contract was signed. At some undisclosed date thereafter, Soto decided she wanted to upgrade the carpeting and appliance allowances, and the parties entered into an oral agreement for a total contract price of $53,000. (Testimony of Respondent, Soto, Petitioner's Exhibits 19-22) On January 4, 1979, Respondent obtained a Putnam County building permit for the Soto project, and plumbing and electrical permits were obtained by subcontractors later that month. Construction commenced on the house and it was discovered that the ground water table was close to the surface of the land and that there would be drainage problems. However, Respondent told Soto that she would be able to cure the problem by pumping out the standing water in the area. On January 26, Respondent again went to New York and obtained a $10,000 payment from Soto. In February, Soto visited the construction site and observed that standing water near the house was "like a lake". Soto visited the house again in March and gave Respondent the final $10,000 payment on the contract price. At that time, the house was substantially completed and there was no apparent water damage. Respondent told Soto that it would take a couple of months to finish construction. It appeared to Soto then that the only remaining work to be done was to install carpeting, light fixtures, and appliances. Several county inspections were made as the work progressed during January and February, 1979, and it was determined, after certain minor corrective measures, that the work was being performed satisfactorily. (Testimony of Durbin, Michaels, Soto, Respondent, Petitioner's Exhibits 1-3, 23-24) During ensuing months, Soto periodically telephoned Respondent to ascertain when the home would be completed, and on these occasions Respondent promised that the house would be completed within thirty days. However, no further work has been done by Respondent, except to obtain approval of a temporary electrical pole in June, 1981. At that time, the county building inspector observed that there was a considerable amount of standing water around the house, and that the outside of the building had deteriorated. Siding was warped and pulled away, the front door was open, and some wrought iron was located in a nearby ditch. (Testimony of Soto, Resondent, Durbin, Petitioner's Exhibit 3) In response to a request by Soto in 1980 concerning the market value of the house, Respondent wrote her on July l, 1980 that the home was 90 to 95 percent complete and that completion was anticipated "as soon as possible". On May 28, 1981, the building permit was extended by the county to August 31, 1981. In July of that year, Soto visited the property and observed that a lock was missing from the door, mud was present in the lower level, sheetrock on the walls had rotted out, and the kitchen cabinets were missing, apparently due to vandalism. Soto saw the Respondent and asked her why the property was in that condition, and Respondent told her that she had no money because workmen on the project whom she had paid had "run off" with the money. During this visit, Respondent provided Soto with a written statement that the said house would be completed within sixty days, which would be September 20, 1981, unless prevented by "some act of God". (Testimony of Respondent, Soto, Michaels, Petitioner's Exhibits 14, 15, 25) On September 1, 1981, the county building official wrote to Respondent and advised her that the permit extension had expired the previous day and that new permits would be required to complete the work. The letter also stated that if substantial work was not evident within ten days from her receipt of the letter, he would be forced to conclude that she had effectively abandoned the project and he would bring the matter to the attention of the county contracting board, and to the Florida Construction Industry Licensing Board. Complaints by Soto to the building official of Putnam County resulted in a letter written to him on January 14, 1982 by Respondent wherein she stated that she had not been able to do anything about the Soto house due to her financial situation, but that she hoped to be able to finish the project in thirty to sixty days. (Testimony of Michaels, Petitioner's Exhibits 10, 11) On February 48, 1982, the county building officials went to the project site and found further evidence of deterioration, but no indication that any corrective or preservative work had been accomplished. Doors and windows were missing from the house, siding and fascia board were warped and pulled away, and several panels fallen from the side of the house. A ditch had been dug around the house and there was standing water in it. Inside, it was observed that gypsum board had been removed from the walls, and in the lower level water stains were evident sixteen to eighteen inches above the flooring. Roof trusses had been broken and structural integrity had deteriorated with rotted 2 x 4 lumber forming bearing walls. It was further noted that kitchen cabinets had been removed from the property. (Testimony of Durbin, Michaels, Petitioner's Exhibits 4-9) Although construction of the house was substantially completed at the time Respondent ceased work, the remaining cost of installing heating and air conditioner units, kitchen appliances, washer/dryer, bathroom and lighting fixtures, pump for septic tank, and carpeting is estimated at approximately $13,000. Additionally, to correct the present deficiencies and procure new windows, kitchen cabinets, and other vandalized property, would require a substantial, but unknown additional cost. Respondent estimates that it would take about $10,000 to $15,000 to complete the house. (Testimony of Michaels, Respondent) Since commencing construction on the Soto house in January, 1979, Respondent has obtained permits and completed construction on nine single family homes, the last permit being issued as recently as January 20, 1982. No complaints have been received by the Putnam County building department on these projects. (Testimony of Michaels, Petitioner's Exhibit 12) Respondent testified at the hearing and conceded that she had not completed the Soto house, but attributed her failure to "cash flow" problems which had resulted in financial inability to complete the work. Respondent had deposited all of the money paid to her by Soto in her general banking account. This account was used for expenditures on the Soto house, as well as other concurrent projects. Respondent produced a statement of expenditures on the Soto house in the amount of $47,000. However, this statement reflected that Respondent had included airplane fare for two trips in the total amount of $434,. These trips were made to pick up checks from Soto in New York. Respondent stated that other costs for fill, construction of a ditch, and rock would not have been necessary if she had followed later advice as to the water problem on the property, and installed a sump pump and "french" drains. She further stated that on various occasions she would lock the house, but each time when she went back the locks would have been stolen, and that although she reported vandalism to the police, the problem continued. Respondent admitted that she had made promises to Soto to complete the house which she had not kept, but that she had never intended to take her money and not perform the work under the contract. She underestimated the cost of building the house due in part to her unfamiliarity with the particular design of the Soto house. (Testimony of Respondent, Petitioner's Exhibits 13, 29)
Recommendation That Respondent's license as a real estate broker be suspended for a period of six months. DONE and ENTERED this 25th day of May, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 25th day of May, 1982. COPIES FURNISHED: James Quincey, Esquire Post Office Box 1900 Gainesville, Florida 32602 William N. Gambert, Esquire 630 North Wild Olive Avenue Daytona Beach, Florida 32018 Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= MEMORANDUM December 8, 1982 TO: Harold Huff, Executive Director, Florida Real Estate Commission; Gail Rodrigues, Chief Investigator; Darlene Keller, Administrative Assistant; Renata Hedrick FROM: John Huskins, Staff Attorney SUBJECT: Final Commission Action Case No. 0011848 Catherine W. Grabhorn 0033021-1 DOAH Case No. 91-2491 You are advised that by Final Order entered July 15, 1982, the Commission ordered Respondent's license revoked (copy attached); and the Respondent took appeal from this ORDER, and that on November 9, 1982, the District Court of Appeal entered its ORDER dismissing the appeal (copy attached). Accordingly, the Commission's ORDER of revocation became effective November 9, 1982. CLOSURE CODE: PLOO Catherine W. Grabhorn, broker, Palatka, Florida; Revoked, effective November 9, 1982; fraud, misrepresentation, conceal- ment, false promises, dishonest dealing, culpable negligence, breach of trust. Attachments cc: Sandy Maston w/file Randy Schwartz JH/DM
Findings Of Fact Ben L. Musick is a registered real estate broker, t/a Ben Musick holding License No. 0062987. In September or October of 1975, Ben Musick was contacted by Barbara Hawkins who requested Musick to represent her in the sale of her home located at 3802 East Esther Street, Orlando, Florida. At that time, Hawkins advised Musick that she had had a recurrence of cancer, was behind on the second mortgage to her house, and desired to sell her home. Musick advised Hawkins that he could assist her in selling the home but that if he undertook to list the house in a direct capacity, that by virtue of his membership in the Orlando/Winter Park Multiple Listing Service that he would have to charge her seven percent commission on the sale. Hawkins advised Musick that she did not desire to have the house so listed and did not desire to place a sign on the property. Hawkins was desirous of paying off the money owned on the house, and obtaining as much money as possible on the sale. Musick was unable to give her an approximation of the money she could hope to realize on the sale of the home because Hawkins was unable to tell him the amount she was in arrears on the second mortgage. Musick undertook to represent Hawkins and advised her that he would check into the status of the second mortgage and would contact her. Upon checking with the second mortgagor and with the courthouse, Musick determined that there was a lien against the property for a deficiency judgment from a small loan company. He also determined the amount of money which she was in arrears on the second mortgage. With this information, Musick met with Hawkins on the 12th or 13th of October, 1975 and discussed with Hawkins the fact that the judgment lien of the small loan company would have to be satisfied together with the amounts due and owing on the second mortgage. A firm purchase price was not reached, but it was their understanding that he would attempt to get the very best price for the home and bring any offers to her and see if she would approve. Musick, having been limited in the manner in which he could advertise Hawkins' property, contacted several friends of his wife and as a result of these contacts showed the home to two couples during the months of October and November. Mrs. Hawkins entered the hospital at the Naval Station in Orlando around November 10, 1975. After her initial examination, it was determined that she would have to be evacuated by air to a cancer treatment center and arrangements were made to do this. She was to be transferred on November 20 or 21, 1975. Ben Musick had shown the Hawkins' home to Bobby and Jerry Hill who on November 19 communicated their decision to Musick that they would offer to pay all outstanding obligations on the Hawkins' home and assume the first mortgage on the home. By this time it had come to light that there was due and owing four months payments on the first mortgage and that both mortgage companies were considering foreclosure. Ben Musick communicated the offer made by the Hills to Hawkins on November 19, 1975 by telephone speaking with her at the Naval Hospital. Based upon her acceptance of the offer and having been advised by Hawkins that her husband was present, Musick prepared the contract for sale based upon the estimates of the cost which the Hills would have to pay and the amount of the first mortgage which they would have to assume. Then Musick presented the contract for purchase and sale and the deed to the property to Barbara Hawkins and her husband at the Naval Hospital on November 20. At that time Musick advised Hawkins that upon signing the contract and deed that the property would be effectively transferred although there would be a formal closing at which he would appear and represent her. Hawkins concurred in this and signed the contract for sale and the deed conveying the property from herself and her husband to Bobby and Jerry Hill. She was told prior to signing that she would receive no cash proceeds from the sale pursuant to the offer of the Hills to pay all debts owing on the home and assume the first mortgage. On November 21, 1975, Barbara Hawkins was transferred from the Naval Hospital in Orlando to Keesler Air Force Base Hospital in Biloxi, Mississippi. The Hills had determined to obtain title insurance on the subject property; and, therefore, Musick turned to Lawyers Title Insurance Company to handle the closing in this transaction because they offered to do so for free thereby saving the Hills money in closing the sale of the property. The final closing statement for the sale of the property was prepared by Jody Sellers of Lawyers Title Insurance Company. She prepared the closing statement based upon information obtained by her from the mortgage companies involved. The information provided her was slightly different from the information provided to Ben Musick and the estimates which he had been required to make regarding the cost of title insurance and other closing costs as stated in the contract for sale. However, the offer was premised upon a payment of debts and assumption of mortgage with the understanding that Hawkins would receive no cash proceeds. Because of the difference in Sellers and Musick's figures there was a slight difference ($250) between the purchase price figures arrived at by Sellers and that arrived at by Musick as expressed in the contract for sale. On November 28, 1975, Ben Musick called Barbara Hawkins at the Air Force Hospital at Keesler Air Force Base, Biloxi, Mississippi, where he advised her that the closing had been approved and was imminent and that she would receive $55 cash from the proceeds of the sale. He further advised her that he would be at the closing and represent her picking up her papers and check. She acknowledged his representation of her at the closing. At closing Jody Sellers requested that Ben Musick execute an affidavit stating that the subject property was free and clear of any mechanics liens, which Ben Musick signed as follows: "Ben Musick, Realtor for Barbara M. Hawkins" Ben Musick signed the closing statement indicating the receipt of $55.31 in behalf of Barbara M. Hawkins in the same manner. Upon her return from Biloxi, Mississippi, around December 10, 1975, Ben Musick delivered the closing papers and the check for $55.31 to Barbara Hawkins.
Recommendation The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends that the Florida Real Estate Commission take no action against the license of Bennett L. Musick, t/a Ben Musick, as a registered real estate broker. DONE and ORDERED this 28th day of December, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Randy J. Schwartz, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Thomas F. Lang, Esquire Post Office Box 633 Orlando, Florida 32802 Charles T. Wells, Esquire Post Office Box 3109 Orlando, Florida 32802
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to these proceedings, respondents Barry P. Rifkin and Flag Realty, Inc. were registered with the Florida Real Estate Commission as brokers, and respondent Sandra Mae Rifkin was registered as a broker-salesman. Respondents caused to be placed in the yellow pages of a Southern Bell Telephone and Telegraph Company telephone directory for Hollywood a full page advertisement containing the words "Free Appraisals by Licensed Real Estate Appraiser". As noted above, all the respondents were registered with the Florida Real Estate Commission, but none were specifically licensed as appraisers by any governmental or regulatory agency regulating only appraisers. Bobby Glenn Johnson, who was a broker for Flag Realty, Inc. at the time the ad was placed, had received on December 1, 1971, a certificate from an instructor of the Broward County Public Schools, Division of Vocational, Technical and Adult Education, certifying that ,he had met the requirements of a 36-hour course of training in real estate appraising. Prior to November or December of 1974, respondent Barry Rifkin and one Arnold Savader each held a fifty percent interest in Broward Investment Company. The purpose of this company was to purchase from the owner derelict houses needing repair or houses going into foreclosure, fix them up and then resell them. It appears from the testimony that at the time houses were originally purchased by Broward Investment, respondent Rifkin was nothing more than a silent partner an investor who at times gave advice to Savader regarding the value of the property to be purchased. After the houses were repaired or restored by Savader, they were listed with Flag Realty, Inc. for resale. The homes purchased were put in Savader's name, and only Savader's name appeared on the Company's business card. It appears that prior to purchasing the homes and listing them with Flag Realty, all contact with prospective clients was done by Savader. A form of advertising used by Broward Investment Company was a door- hanger advertisement stating in part "No Brokers Involved (No Commissions)". There was no evidence that brokers' commissions were ever charged to the sellers.
Recommendation In consideration of the findings of fact and conclusions of law recited above, it is recommended that the charges contained in the information based upon the offenses of misleading advertising be dismissed. Respectfully submitted and entered this 17th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
