The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 20, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating and disciplining real estate licensees. At all times material to the allegations of this case, the Respondent has been a real estate licensee having been issued salesman's license no. 0455312. In March, 1989, Respondent met with Thomas and Cheryl Bellaw regarding the purchase of real property. The Bellaws were interested in investment property which would enhance their retirement options. Respondent showed the Bellaws a 7.5 acre tract which he claimed could be subdivided into smaller lots and resold at a substantial profit. As an inducement to convince the Bellaws to make the purchase, the Respondent drew several plans to show how the tract could be divided, made resale projections to compute the buyers' estimated profits from the subdivision of the land, and gave the buyers sales comparables from other lots to justify the figures he presented. In truth, the tract could not be subdivided and was the subject of a county ordinance which prohibited its division. Respondent knew that the tract could not be subdivided but nevertheless encouraged the Bellaws to complete the purchase. Once the purchase was completed, the Bellaws listed the property for resale with the Respondent at a substantial increase. At no time prior to the purchase by the Bellaws or prior to the subsequent relisting, did the Respondent advise the Bellaws that the tract could not be subdivided. When the listing produced no offers, the Bellaws investigated and discovered that the tract they had purchased had been illegally subdivided earlier from a 10 acre parcel. Respondent admitted that the 10 acres had been owned by a married couple who, in the course of their divorce, quitclaimed part to the wife (the portion not sold to the Bellaws) and part to the husband (the portion purchased by the Bellaws), and that this subdivision was impermissible. The Bellaws then went to the county for relief. They sought after-the- fact permission to subdivide the 10 acre parcel so that their tract would be able to receive a building permit. That relief was denied. Consequently, the Bellaws have been unable to assure that a building permit can be issued for their property and are unable to use the tract for the purpose for which it was purchased. Respondent should have known of the county ordinance which prohibited the subdivision of the 10 acre tract as it had been enacted some seven to eight years prior to the transaction which is the subject of this case. A prudent real estate licensee checks governmental restrictions which might impair the marketability of a parcel.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license. DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is accepted but is irrelevant to the allegations of this case. Paragraphs 4 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: James H. Gillis Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Paul Edward Ebbert, Jr. 1000 Abernathy Lane, #206 Apopka, Florida 32703 Paul Edward Ebbert, Jr. 770 Lake Kathryn Circle Casselberry, Florida 32307 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times material hereto, Defendant was registered with Plaintiff as an active broker, holding certificate NO. 0182756. On or about October 4, 1976, a Contract for Sale of Real Estate ("the contract") was entered into between Merit Properties Corporation as seller, Frances G. Williams ("the buyer") as buyer, and Defendant as "agent." The contract was for purchase and sale of certain real property and improvements located in Tampa, Florida. The contract provided that purchase of the property was contingent upon the buyer qualifying for and obtaining an FHA mortgage in the amount of $20,850. At the time the contract was signed, the Defendant obtained a $300.00 deposit from the buyer, and at some later date, accepted an additional deposit of $550.00, making a total deposit of $850.00 toward the purchase price of the property. The contract provides that the deposit shall apply as part of the purchase price of the property "...and shall be held by said Agent in escrow pending closing of [the] transaction..." In addition, the contract provides that upon closing of the transaction "[t]he Seller agrees to pay said Agent a sum equal to 7 percent of the purchase price as commission...." Finally, the contract contained a provision indicating that "[n]o agreements, unless incorporated in this contract shall be binding upon the Agent, Buyer, or, Seller." Sometime in late 1976, the buyer applied to Mortgage Associates, Inc. for an FHA mortgage. On or about November 5, 1976, this application was rejected. On or about November 29, 1976, the buyer again applied for an FHA mortgage, this time through Charles F. Curry and Company. This mortgage application was rejected on December 10, 1976. Defendant was aware that the buyer had applied for an FHA mortgage through Charles F. Curry and Company. Written notification of rejection of the buyer's application through this company was sent to the buyer, but a copy was not forwarded by Charles F. Curry and Company to Defendant. The record establishes, however, that Charles F. Curry and Company's general practice was to notify real estate brokers involved in financing transactions of the disposition of mortgage loan applications. Defendant denies receiving any such notification from Charles F. Curry and Company. On several occasions, after the aforesaid rejections of the buyer's mortgage loan applications, the buyer attempted to contact Defendant by telephone, but was unsuccessful in these attempts. Subsequently, on February 21, 1977, the buyer orally advised Defendant that her mortgage loan application had been rejected, and requested return of her $850.00 deposit. When Defendant did not return the deposit, the buyer retained an attorney to assist her in recovering her deposit. Finally, pursuant to a Compromise and Settlement Agreement dated September 5, 1978, Defendant returned the buyer's deposit of $850.00, together with an additional $100.00 as accrued interest. However, of this $950.00 total, the buyer received only $650.00. The remaining $300.00 constituted a fee which the buyer had to pay to her attorney for services rendered in recovering the deposit. Defendant was a substantial owner of Merit Properties Corporation, the purported seller of the real property here involved. Evidence of record in this proceeding clearly establishes that Defendant did not deposit the $850.00 earnest money deposit received from the buyer in an escrow account maintained either in his own name or in the name of Merit Properties Corporation. In fact, Defendant admits that the $850.00 deposit was used to make improvements to the real property which was the subject matter of the contract. Defendant contends that he received the earnest money deposit from the buyer as an officer of Merit Properties Corporation, and that he had an oral understanding with the buyer entered into prior to the execution of the contract that the money so received would note be held in escrow, but would be used to make improvements on the property. These contentions are not supported by the evidence and are specifically rejected. The record clearly establishes that during negotiations leading to the signing of the contract, Defendant informed the buyer that he was a real estate broker. In addition, the record also establishes that Defendant prepared the contract, and was therefore responsible for the wording of that document. The contract clearly provides that Defendant acted as "agent" for Merit Properties Corporation, and that as such, he was to receive a 7 percent commission on the purchase price at the closing of the transaction. By the very terms of the contract, therefore, Defendant was acting in the capacity of a real estate broker in this transaction. In addition, the contention that there existed an oral agreement between Defendant and the buyer prior to the signing of the contract to use the deposit money for construction purposes is not supported by the evidence of record in this proceeding, and, in fact, is directly contrary to the language contained in the contract document prepared by Defendant. Finally, Defendant contends that he never refused to return the buyer's deposit, but informed her that the deposit would be returned upon the buyer furnishing to Defendant both a copy of correspondence rejecting the buyer's mortgage loan application, and a "release." There is no provision in the contract involved in this transaction which would require the buyer to furnish Defendant any sort of "release", or to furnish notice of inability to obtain the necessary financing in any specific form. Thus, oral demand for return of the deposit was clearly permissible under the terms of the contract. Further, Defendant was aware of the fact that the buyer had applied for mortgage financing through Charles F. Curry and Company, and therefore could either have obtained a copy of the rejection of the buyer's mortgage loan application himself had he chosen to do so, or could at the least have inquired of that company as to the disposition of the buyer's application. Both Plaintiff and Defendant have submitted Proposed Findings of Fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as having been irrelevant to the issues in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Board of Real Estate, suspending Defendant's real estate broker's license No. 0182756 for a period of sixty (60) days from the date of final agency action in this proceeding. DONE and ENTERED this 21st day of July, 1980, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Gwynne A. Young, Esquire Post Office Box 3239 Tampa, Florida 33601 ================================================================= AGENCY MEMORANDUM ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone 904-488-6692 MEMORANDUM TO: C. B. Stafford, Executive Director, Board of Real Estate E. B. Ashley, Administrator on Investigations FROM: John Huskins, Assistant General Counsel SUBJECT: FINAL ACTION - Suspension PD 3402 (DOAH 79-744) James E. Black, Broker 182756-1 DATE: February 6, 1981 This is to advise you that by FINAL ORDER dated September 15, 1980 (copy attached) the license of James E. Black was suspended for six (6) months, effective October 16, 1980, provided no appeal was taken. Black did appeal. January 21, 1991 the Appellate Court entered its ORDER dismissal of appeal (copy attached), therefore, suspension became effective immediately. Broker Black, through his lawyer, delivered to me Black's Certificate Number: 182756, as individual broker Certificate Number: 182755, as corporate-Best Opportunity Realty Corporation. both of which are attached to this memo to C. B. Stafford. It is suggested that revocation records be updated to reflect suspension and the effective date. It is further suggested that investigation be made as necessary to determine if James E. Black is in fact refraining from real estate activities, in compliance with his suspension. JH/pkr Enclosures* cc: Mr. Michael Schwartz, General Counsel Susan Penquite, Central Files Mr. Fred Wilson, Assistant General Counsel Ms. Renata Hendrick, Supervisor of Records * NOTE: Enclosures noted are not available at the Division and therefore not a part of this ACCESS document.
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. WILLIAM B. THOMAS, 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 27 day of September, 1982.
Findings Of Fact At all times relevant hereto, respondent, George Sherbon, was a licensed real estate broker having been issued broker's license number 0348688 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesman for V. P. Stone, Inc., a real estate firm located at 5905 Gulf Boulevard, St. Petersburg Beach, Florida. On April 1, 1987, Paul D. and Anna Martin entered into a listing agreement with Century 21 Spinning Wheel Ent., Inc. (Century 21) to sell their home at 2543 58th Terrace South, St. Petersburg, Florida. The listing agent was Cheryl Coudry, now known as Cheryl Hutton, a licensed salesperson with Century 21. On September 11, 1987 respondent solicited and obtained a contract for sale on the Martin property executed by Frank Dicenzo, a resident of Pittsburgh, Pennsylvania, who had a daughter living in the St. Petersburg area. Dicenzo had responded to an advertisement run by Sherbon in a Pittsburgh newspaper. After a week or so of negotiations, the parties eventually agreed to a sales price of $92,500, and the final contract was executed on September 20, 1987. The contract called for Dicenzo to make an initial $100 deposit when the contract was executed and an additional deposit of $19,900 by September 25, 1987, or a total deposit of $20,000. Dicenzo gave respondent the initial $100 which was deposited into the escrow account of V. P. Stone, Inc. The contract provided further that the sale would be contingent on Dicenzo obtaining a $72,500 first mortgage. Finally, in accordance with Dicenzo's request, the contract provided that Dicenzo could take occupancy of the premises four weeks after the loan was approved. It is noted that Dicenzo initially asked for occupancy by October 16, 1987. On September 18, Sherbon introduced Dicenzo to Tony Black, a loan officer at Savings of America, a local lending institution, for the purpose of Dicenzo making a loan application. On September 24, or the day before the additional deposit was due, Dicenzo became ill with what he described as a bleeding ulcer and decided to return to Pittsburgh and stay at his mother's home. Before he left, Dicenzo did not make the additional deposit as required by the contract. According to Dicenzo, he placed no great significance on the September 25 due date and felt that if the deposit was made "within a reasonable time," it would be okay. Respondent was aware of the September 25 deadline and attempted to get a check for the $19,900 deposit from Dicenzo's daughter but was unsuccessful. Respondent contends he kept trying to contact Dicenzo in Pittsburgh during the next five week period but was unable to reach him. Dicenzo acknowledged he knew that Sherbon was trying to contact him but still made no effort to talk to Sherbon. Instead, he simply told his daughter he would take care of the matter when he returned to Florida in late October. Whether this message was conveyed to Sherbon is not of record. Sherbon prepared contemporaneous notes concerning the transaction and used these to refresh his recollection at hearing. He pointed out that such notes were kept on all real estate transactions. According to his notes, he telephoned Coudry and Black on September 24 concerning Dicenzo's illness and the fact that he was having difficulty obtaining the additional deposit from Dicenzo. Although Black recalled talking with Sherbon, he denied that Sherbon told him that there was no deposit and said such information was a material item that would have prompted him to stop processing the application until the deposit could be verified. Likewise, Coudry, who could not recall many aspects of the transaction, did recall speaking with Sherbon but remembered Sherbon simply telling her that he was in the process of showing Dicenzo various commercial properties and would be obtaining the deposit at that time. Their testimony is deemed to be more credible and persuasive and is hereby accepted. Coudry assumed that Sherbon had received the additional deposit since she was never specifically told otherwise by Sherbon. Accordingly, she did not contact the Martins until several weeks after the September 25 due date. Coudry did not learn that no deposit had been collected until mid-January 1988 when Anna Martin disclosed to her this fact. In the meantime, although the Martins knew the contract was contingent on Dicenzo obtaining a loan, they nonetheless assumed that Dicenzo would have no problem securing a loan and that such a loan would be approved in a week or so. Also, they knew the contract called for possession of the property by Dicenzo four weeks after the loan was approved. Because of these assumptions, and having received no advice from Coudry that the full deposit had not been made on September 25 as required by the contract, the Martins made application around September 28 to buy another home in a nearby modular home park and asked that the application be expedited. Unfortunately for the Martins, they were far more successful than Dicenzo in securing prompt approval of their loan application. Once approved, and after a closing was held, the Martins had the utilities hooked up, erected a storage shed, and incurred other expenses. Also, they began making mortgage payments on the second house. On October 24, 1987 the Martins telephoned Sherbon and told him their listing with Century 21 had expired. During the conversation, Sherbon did not mention that Dicenzo had failed to make the $19,900 deposit. Dicenzo's application with Savings of America was denied on October 30, 1987 because of Dicenzo's "ratio of ... expenses to ... total income." By this time, Dicenzo had returned to Florida and had spoken with Sherbon. At respondent's urging, Dicenzo reapplied to the same institution and was turned down a second time on November 12, 1987. In addition, at Coudry's suggestion, Dicenzo had already visited another lender in October but refused to pay a $250 application fee and consequently did not file an application. Also, through Sherbon, Dicenzo was given the name of a mortgage lender suggested by the Martins but, after three visits, decided not file an application. Information regarding the second Savings of America denial was conveyed to Coudry around mid-November but, for whatever reason, she did not contact Sherbon regarding the status of the contract. It is noteworthy that at that time Sherbon did not tell Coudry that Dicenzo had still failed to make an additional deposit as required by the contract. Despite the loan application denials, Sherbon encouraged Dicenzo to keep trying to arrange financing so that the deal could go through. Dicenzo agreed to do so but, as noted in the following finding of fact, at that point Dicenzo considered the contract to be "null and void." Sherbon's efforts to find financing continued until mid-January 1988. When the loan application was denied on November 12, Dicenzo construed the contract to be void since the financing contingency was not met. According to Dicenzo, he did not believe the property was tied up while his contract was pending, felt no obligation to make the $19,900 deposit because it meant he would have to transfer funds from a money market account he purportedly maintained in Pittsburgh, and felt no moral obligation to the Martins even though by then they had committed themselves to a second home. The Martins were advised by telephone on the evening of November 12 of the second turn down of Dicenzo's loan application. By then, however, they were already committed to the second purchase. They claimed they did not learn of Dicenzo's failure to make the $19,900 deposit until mid-January 1988 when Sherbon visited their home and disclosed this fact. This is also borne out by a letter from the Martins' attorney to Dicenzo on December 1, 1987 advising Dicenzo that the contract was void and a claim might be made on his deposit for damages. When the Martins learned that only $100 had been deposited, they filed a complaint with the Division. That prompted this proceeding. Because of the failed contract, the Martins were unable to maintain two mortgage payments and were ultimately forced to give up the second home at a substantial monetary loss. They have since returned to their first home. The evidence shows that in the real estate trade, it is not customary or proper for the buyer's realtor to personally contact the seller. Rather, the practice and custom is for the buyer's agent to advise the listing broker of all pertinent developments and the listing broker then relays any necessary information to the seller. Thus, Sherbon had no responsibility to personally advise the Martins of any information pertaining to the contract. Rather, this responsibility rested with Coudry. Respondent contended he kept Coudry abreast of all developments concerning Dicenzo and that he assumed Coudry would advise the Martins that no deposit had yet been collected. To the extent this version of events conflicts with previous findings, it is not accepted. Sherbon expressed sympathy for the Martins' plight but maintained he was not at fault. There is no evidence that Sherbon has been subjected to prior disciplinary action by the Division.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes (1987) to the extent noted in the conclusions of law and that his broker's license be suspended for three months. All other charges should be dismissed. DONE and RECOMMENDED this 26th day of April, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4688 Petitioner: 1-2. Covered in finding of fact l. Rejected as being unnecessary. Covered in finding of fact 2. 5-7. Covered in finding of fact 3. Covered in finding of fact 5. Covered in finding of fact 10. Covered in finding of fact 7. Rejected since respondent owed a duty to Coudry, and not the Martins, to keep her abreast of all pertinent matters. Covered in findings of fact 7 and 12. Covered in findings of fact 7 and 8. Covered in finding of fact 8. Covered in findings of fact 6 and 10. Rejected as being subordinate to other findings. Covered in finding of fact 11. 18-19. Covered in finding of fact 6. Respondent: Respondent's proposed order contains sections entitled "admitted facts", "unrebutted facts" and "uncontested facts". They are ruled upon in that order. Admitted facts: Covered in finding of fact l. Covered in finding of fact 3. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 3. Covered in background. Unrebutted facts: Covered in finding of fact 7. Covered in finding of fact 15. Covered in finding of fact 10. 4-6. Covered in finding of fact 6. 7-8. Covered in finding of fact 5. Covered in finding of fact 11. Covered in finding of fact 12. Rejected since Sherbon learned of the loan denial even though he did not receive a written copy of the turn-down letter. Covered in finding of fact 13. Covered in finding of fact 8. Rejected since the testimony of Anna Martin is accepted as being more credible on this factual issue. Uncontested facts: Rejected as being cumulative. Partially covered in findings of fact 6, 7 and 16. The remainder is rejected as being cumulative, argument of counsel or not supported by the more credible evidence. COPIES FURNISHED: James H. Gillis, Esquire Post Office Box 1900 Orlando, Florida 32802 Daniel B. Schuh, Esquire 248 Mirror Drive St. Petersburg, Florida 33701 Darlene Keller, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact William J. Francis, Respondent, is now, and was at all times alleged in the Administrative Complaint, a licensed real estate broker in the State of Florida, having license No. 0388666. Respondent, V R Business Brokers of Lakeland, Inc., is currently, and was at all times alleged in the Administrative Complaint, a real estate broker corporation, having been issued license No. 0224405. At all times alleged in the Administrative Complaint, Respondent Francis was licensed and operating as a real estate broker and sole qualifying broker and officer of Respondent, V R Business Brokers of Lakeland, Inc. Respondent, via Theresa Rosalie Francis, a broker/salesman and wife of Respondent, employed by V R Business Brokers, obtained from Joyce Houser a listing agreement (Exhibit 1) to sell a restaurant called "Bac O' The Mall at a price of $43,000. This listing agreement provided a minimum commission of $6,000 to the broker. Subsequent to obtaining the listing agreement, another employee of V R Business Brokers, James Rice, a real estate salesman, obtained a written offer to purchase "Bac O' The Mall" on January 13, 1983 (Exhibit 2). This offer was made by Robert Stevens and Richard Destin to purchase the business for $30,000, with a $500 deposit and an additional $1,500 down payment when the seller accepted the offer and the balance of $28,000 at closing. Joyce Houser was advised the offer had been received and was requested to come down to Respondent's office to have it presented. Mrs. Houser went to the office of Respondent and was quite upset with the disparity in asking price and the offer. Salesman Rice, who had obtained the offer, urged Mrs. Houser to accept the contract immediately because the business had been losing money and a better offer might not be forthcoming. Mrs. Houser refused this offer and contacted her brother, a real estate broker, who helped her prepare a counteroffer. Prior to this offer being submitted, Mrs. Houser had become unhappy with her dealings with V R Business Brokers due to salesmen bringing clients in at inopportune times to show the business and for failing to maintain secrecy with respect to her employees of the fact that the business was for sale. A prior offer had also been obtained on which Mrs. Houser felt she had been pressured by Respondent to accept; and she had directed all negotiations to be made through her brother, Charles Whitten. The buyers accepted the counteroffer (Exhibit 7) When the counteroffer was accepted, Whitten reminded Respondent that the additional $1,500 was due. When the buyers did not appear the following day with the additional deposit, Respondent, who had agreed to hold the buyers' personal check for $500 to be replaced with a cashier's check for $2,000, apparently became suspicious of the buyers' ability to pay and called the bank on which the check had been written to find out if sufficient funds were on deposit to cover the check. When advised that there were insufficient funds to cover the check, Respondent sent the check to his escrow agent to have the check sent to the bank where, in fact, it was subsequently dishonored. Respondent never advised Mrs. Houser or Charles Whitten that the $500 check bounced or that the buyers had failed to deposit the additional $1,500 required by the contract until after the scheduled date of closing. A few days before the February 15, 1983, scheduled closing date Respondent or his salesman contacted Whitten to solicit Mrs. Houser to finance part of the purchase price. She declined to do so. At the time the initial contract was submitted by Destin and Stevens, Respondent knew these buyers were unemployed engineers and soon thereafter learned they were attempting to borrow the money to finance the deal, and that the banks would not lend them the money they needed. Nevertheless, Respondent attempted to induce the seller to finance the sale of the business when he knew, or should have known, the buyers to be sufficiently poor credit risks they could not obtain financing. When February 15, 1983, passed without the scheduled closing taking place by reason of default on the port of the buyers, Mrs. Houser, on February 18, 1983, wrote to Respondent (Exhibit 5) requesting the earnest money deposit as liquidated damages and a release from the listing agreement which she had been promised. In response thereto, Respondent, by letter dated February 24, 1983 (Exhibit 6), advised Mrs. Houser that the buyers' $500 check was no good and that they had failed to put up the additional $1,500 required by the contract. He agreed to cancel the listing agreement `as soon as this matter is resolved." Mrs. Houser then reported the entire transaction to the Florida Real Estate Commission and these proceedings followed their investigation.
Findings Of Fact At all times pertinent to the issues involved in this hearing, Respondent, Stephen P. McCrady, was licensed by the State of Florida as a registered real estate broker. Prior to the month of August 1983, Abraham L. Starr and John W. Dowler had listed their real property located at 1425 East Lake Drive, in Ft. Lauderdale, for sale with Sophist Realty, a Ft. Lauderdale real estate brokerage firm in which the two principal brokers were John J. Makos, III and W. Thomas Pospeshil. The asking price for the residential property was approximately $925,000.00. Prior to the time in issue here, no offers to purchase the property had been made as long as it was listed with Sophist Realty. In late July or early August 1983, Respondent was approached by LaVern McDonald and a woman identified as Georgia Rhea, his fiancee, who indicated they were interested in buying residential property in the Ft. Lauderdale area. Respondent showed these individuals several pieces of property including that in issue here. During the course of the relationship with Respondent, McDonald had advised him that he was a wealthy man who was expecting considerable sums of money from his mother's estate in Germany. Respondent believed this story considering it credible. After Respondent had taken the prospects to the Starr property three times, McDonald finally indicated he was interested in making an offer to purchase it. Thereafter, Respondent drew up a rough contract containing the basic terms for an original offer of approximately $775,000.00, typing the draft of the contract himself in his office on the evening of August 8, 1983. When he asked McDonald how much he was willing to put down as a binder, McDonald indicated $20,000.00 and Respondent entered that amount on the sales contract as the deposit. When he asked McDonald for a check to cover this sum, McDonald advised him that the money had to come through a bank in Atlanta and that he would have it there in less than 24 hours. At that point, Respondent called Makes and told him that he had an individual who wanted to make an offer on the property but that the deposit money was not in hand yet. As a result, he did not take the contract to Mr. Makos then or, for that matter, on the next morning because the money had still not arrived. In the interim, Mr. Makos' secretary called Mr. Starr on the evening of August 8, and advised him that an offer would be presented at 1 p.m. the next day. Mr. Starr and his partner were somewhat concerned as to why the offer was not presented immediately when the contract was signed by the prospective purchaser. When they checked with Makes office on the morning of August 9, they were told by Makos that he was waiting for a $20,000.00 check, which was to be the deposit, to be forwarded from Atlanta. Mr. Makos confirms most of this indicating that prior to August 8, after being advised of the pending contract, he had several conversations with Respondent about the money which was expected but not yet received. He indicates, however, that after several notifications that the money was not in and that the contract would not be presented until it was, on August 8, Respondent called and requested an appointment with the sellers to present the offer contained in he proposed contract. Makos cannot be sure if Respondent made a positive representation at that time that he had the money in hand. When the contract was presented the next morning, however, it showed in paragraph 2, "Method of Payment," the words, "Deposit herewith," and the figure $20,000.00. The contract also called for an "additional" deposit of $30,000.00 to be paid upon acceptance of the contract by both parties. Both the original contract form and the re-typed copy executed somewhat later indicate a place for the escrow agent to show where the deposit has been received. On neither copy of the contract here is that particular clause filled in. Neither Mr. Starr, his partner, his broker nor his lawyer noticed this omission at the time the contract was signed or shortly afterwards. After the contract was signed by both parties, Mr. Makes partner, Mr. Pospeshil, in placing into motion those steps necessary to bring about the closing, first noticed it on or about August 10. He attempted to contact Respondent several times but was unable to reach him. Messages he left were unreturned until August 14, when he was finally able to reach McCrady to ask him for an escrow letter to cover not only the $20,000.00 but the $30,000.00 as well. At this point Respondent advised that no deposit money had been received and that both Makos and the seller knew this, a contention which Makos denies. Respondent also disputes Pospeshil's statement that he failed to return messages indicating he was either at home or available through his pager the entire time and got no calls on this matter until August 14. Nonetheless, Respondent advised Mr. Pospeshil that he would get the deposit money that evening and call back when he had it. He did not call back and Pospeshil called Respondent's counsel to advise him of the situation. When the deposit money was not delivered even the next day, Pospeshil called the sellers and told them that there was no deposit. When advised that Respondent had indicated that they knew the money had not been in hand at the time the contract was signed, both denied this. Considering the evidence, it is obvious than neither did know. The property was subsequently sold by Starr and Dowler for approximately $625,000.00. Respondent urges that Makos concealed his knowledge that at the time the contract was signed the deposit money was not in hand because the listing on the property was about to expire and Makos wanted to present a contract so that he could get a renewal of the listing. There is no evidence to support this theory and it is rejected. Respondent presented a series of contracts for the purchase and sale of real estate executed in other transactions in the Ft. Lauderdale area. Of these, however, the most recent is approximately three years before the instant situation and the oldest goes back to 1969. They were presented for the purpose of establishing the practice in the area of filling in the receipt portion of the contract form. This was supported by the testimony of Mr. LeGault, who had no participation in the instant case. He has presented contracts without the deposit being received but only upon full disclosure to the seller and then only when the seller requests that the contract be presented without the deposit. In his opinion, when the receipt portion of a contract is left blank, like here, it is more a letter of intent to open negotiations rather than a firm offer. The attorney, Mr. Parker, testifying for Respondent also related that the failure to show either a deposit received or a promissory note for the amount constitutes a failure of consideration and results in an invalid contract. Both Respondent and Makos agree that the receipt portion on a sales contract is normally filled in. However, Makos was quite adamant as to the fact that when it is not, he always asks the presenting broker for an escrow letter establishing that receipt. Whether the contract here is valid or not is immaterial to the issue in this case which is whether or not Respondent made a false representation when he presented the contract to the broker for the seller which indicated that a substantial down payment had been tendered. On the basis of the evidence outlined above, the inescapable finding is that Respondent, by either word or deed, communicated to Mr. Makos when he brought the offer, that the money had been received and was in his trust account as reflected in the upper portion of the contract form. Under the circumstances of this case where, among other things, nobody even noticed that the lower portion of the contract was not filled in, it is clear that Respondent intended to impart that idea. It must also be noted that in September 1983, Respondent, without either admitting or denying the allegations against him, signed a stipulation with Petitioner which disposed of other allegations in a different Administrative Complaint resulting in his being reprimanded, paying a $500.00 administrative fine, and agreeing not to violate the statutes and rules governing the practice of real estate in Florida in the future.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore: RECOMMENDED that Respondent, STEPHEN P. McCRADY'S license as a registered real estate broker in Florida be suspended for one year; that he pay an administrative fine of $1,000.00; that he be reprimanded; and that upon the completion of the period of suspension, he be placed on probation for two years. RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985. ARNOLD H. POLLOCK 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 8th day of March, 1985. COPIES FURNISHED: Arthur R. Shell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ronald R. Rogowski, Esquire 208 Southeast Sixth Street Ft. Lauderdale, Florida 33301 Harold Huff, Executive Director Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent Gustave A. Miller was a licensed real estate broker with license number 0060208, and Respondent Pamela Michaels was a licensed real estate salesman with license number 0059873. At all times pertinent to this case, Respondent Miller operated Gus Miller Real Estate, Inc., 5505 E. Colonial Drive, Orlando, Florida; and Respondent Michaels was a salesperson working for him at that office. On or about November 15, 1981, Respondent Michaels prepared a contract for the sale of property owned by Betty B. Stahl (1/2 interest) and Helen Vierbickas or Flora Belle Turner Van Trease (1/2 interest) in Orlando, Florida, to Timothy Karl Kunke and Shawna Jean Kunke. Purchase price was to be $64,000 with $1,000 paid as deposit. Buyer was to apply and qualify for a loan guaranteed by the Federal Housing Administration (FHA). Seller was to clean and paint the inside of the house, but did not enter into a contract with Respondents to accomplish this work. The contract contained the usual provision for the division of forfeited deposit in the event of buyer default. Due to a death in the buyer's family, he was not able to qualify for an FHA loan, and without any coordination with or approval of seller, Respondent Miller deducted $235 from the deposit held by him, as his fee for painting the property, and refunded $765 to the Kunkes. Thereafter, on or about December 4, 1982, Respondent Michaels presented a second contract for the sale of the same property to Mrs. Stahl, although the majority of her dealings were actually with Mr. Stahl, who was advising his wife. The buyer listed this time was Robert G. McRae, and the contract reflected a deposit in the amount of $4,000 paid by check to Gus Miller Real Estate, Inc. This contract, which was accepted by the sellers, also called for the buyer to apply for and qualify for an FHA loan, and seller agreed to pay the discount points on that loan, not to exceed 3 percent. Though the $4,000 was reflected as paid on the front of the contract, the provision reflecting the receipt of earnest money to be held in escrow on the bottom of the reverse side of the contract was not filled in or signed by either Respondent, even though Respondent Miller's firm name was stamped in. Nonetheless, when Mr. Stahl asked Respondent Michaels about the check at the time the contract was signed by Mrs. Stahl, Michaels assured him they had it in their possession and agreed to send him a photocopy of it, which she failed to do. In the prehearing stipulation, Respondents agreed that no deposit had been paid. At some point in time, Respondents admitted they did not have the deposit. Mrs. Vierbickas, a friend of Mrs. Stahl's sister, Mrs. Van Trease, was told by Respondent Michaels that they did not have the check, but she is unsure when she was told this. I find, nonetheless, that Respondents continued to represent to the Stahls that the deposit had been received and was being held by them until after the transfer was cancelled for other reasons. McRae signed the contract on December 4, 1981. That same day, he was taken by Respondent Michaels to the Orlando office of Countrywide Funding Corporation where, before an employee of that Company, Joyce Freed, he filled out an application for an FHA mortgage in the amount of $61,300. On that same visit, he signed a certificate that the property to be covered by the mortgage would serve as his primary home. He also acknowledged in writing that he understood FHA financing could not be utilized for any purpose other than owner- occupied properties. He subsequently signed additional documents in relation to the loan in which he affirmed that the property to be financed would be occupied by him, even after the mortgage commitment was received from the FHA. On January 11, 1982, McRae certified on a U.S. Department of Housing and Urban Development (BUD) form that he intended to occupy the property. Coincidentally, that same day, a lease was signed by a Barbara Sullivan, on behalf of herself and her husband, purporting to lease the home McRae was then occupying for one year at $650 per month with an advance deposit of $1,300 paid. McRae was not asked to sign this lease, which was witnessed by both Respondents and notarized by Respondent Miller. McRae did not receive any rent from this lease, which was not a bona fide conveyance of an interest in the property. It was not intended to convey the property, but was generated by Respondents for some purpose not related to a tenancy by the Sullivans. McRae testified that when Michaels took him to Countrywide's office, he did not intend to occupy the property to be purchased, but instead intended for his daughters to live there. However, when he saw from the forms he was signing that there was a requirement for the property to be owner-occupied, he, at that moment, changed his mind; and when he signed the documents, minutes thereafter, he intended to move in. I find this testimony to be unworthy of belief. During the period from the date of the sales contract with McRae to the date of the proposed closing, the interest rate went up higher than was called for in the contract, and McRae refused to close. Sometime later, in late February, 1982, a Larry Werts came to the property in question and discussed with Mr. Stahl the possible purchase of Mrs. Stahl's one-half interest in the property for $27,500 in cash. Werts was, however, unable to secure this much cash. Thereafter, he indicated he would make an offer on the entire parcel through Respondent Michaels; and subsequently, Respondents, together, brought a contract to Mrs. Stahl, signed by Werts, which reflected a purchase price of $50,000. The Stahls rejected this offer as being too low.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the license of each respondent be suspended for one year, that each respondent pay an administrative fine of $1,000, and that each respondent be reprimanded in writing, but that the execution of the suspension be deferred for one year with a provision for automatic recission. RECOMMENDED this 31st day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert W. Olsen, Esquire 205 N. Rosalind Avenue Post Office Box 1767 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Department of Business and Professional Regulation, Division of Real Estate (Petitioner), is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Robert A. Schwartz (Respondent) was a Florida licensed real estate broker, having been issued license number 0481297, with an address of American Real Estate Properties, Inc., 13833 Wellington Trace, West Palm Beach, Florida. Respondent was initially licensed on or about May 23, 1988. At all times material hereto, Respondent was the qualifying broker and officer of American Real Estate Properties, Inc. (American Real Estate). On or about May 18, 1992, Respondent met with Ms. Renate Schuetze in West Palm Beach. 4/ Ms. Schuetze was from the State of New York and was interested in buying lots, building homes on the lots and renting the homes. Respondent had been referred to Ms. Schuetze by her friend, Ms. Mary Ann Runer. A few years ago, on behalf of Ms. Runer and using monies provided by her, Respondent had purchased a lot in West Palm Beach, overseen the contracting and construction of her home on the lot and rented out the home. All for which he charged Ms. Runer a fee. Ms. Schuetze wanted Respondent to do the same for her. On that same day, after meeting with Respondent, visiting prospective lots and model homes with him and discussing his process and procedure, Ms. Schuetze gave Respondent a check for $15,120 made payable to American Real Estate and returned to New York. Although Ms. Schuetze noted on the check that the money was for a deposit on one of the model homes, the monies were actually for a deposit of $2,000 on two certain lots ($1,000 each) and Respondent's fee of $13,000 ($6,500 per house) 5/ for performing the same service for her that he had performed for Ms. Runer. Ms. Schuetze wanted to pay Respondent his fee in advance instead of waiting until the homes had been built and rented. This was the first time that Respondent had received his fee in advance. The following day, on May 19, 1992, Respondent deposited the $15,120 into the operating account of American Real Estate which did not have an escrow account. Furthermore, Respondent had no intentions of opening an escrow account. However, the day before, on May 18, 1992, Respondent wrote two checks for $1,000 each to Miki S. Murray Realty (Murray Realty) for a deposit on two certain lots on behalf of Ms. Schuetze, leaving a balance of $13,120 from the monies given by her to Respondent. The deposits held the lots for Ms. Schuetze. On May 19, 1992, Murray Realty completed a document entitled "Reservation Deposit" for each of the lots. The document represented an acknowledgment of a deposit and the terms associated therewith. Murray Realty sold the lots and the homes to be constructed as a package deal. Each Reservation Deposit indicated, among other things, a lot deposit of $1,000 on a certain lot, the location of the lot, the purchase price of the house to be constructed on the lot, the representative for the builder/seller (Murray Realty), and the buyer who was indicated as Respondent. Also, each Reservation Deposit indicated that the deposit was an "earnest money deposit," that the contract was to be entered into on June 10, 1992, and that the deposit could be returned for any reason on or before June 10, 1992. Murray Realty required no further monies until after the signing of a contract for purchase from which construction draws would come from an account specifically setup for that purpose. This was not the first time that Respondent had entered into such a transaction with Murray Realty. Respondent used the same transaction for Ms. Runer. From on or about May 12, 1992, through on or about June 1, 1992, Respondent wrote checks from American Real Estate's operating account, totalling $10,403.01, from the remaining $13,120 given to Respondent by Ms. Schuetze. The expenditures were for Respondent's own use and benefit; none were associated with the services requested by Ms. Schuetze. On or about June 1, 1992, Respondent sent a completed contract for sale and purchase of the lots and homes and a blank buyer-broker contract, by express mail, to Ms. Schuetze for her signature. The contract for sale and purchase reflected that a "deposit" of $15,120 had been paid to American Real Estate, as seller, toward the purchase price and that the deposit was being held in "escrow." The blank buyer-broker agreement contained spaces for Respondent to insert an agreed upon fee but these were also left blank. Prior to sending these documents, Respondent had discussed the contracts with her and informed her that he was sending them to her. At the same time, on or about June 1, 1992, Ms. Schuetze wrote to Respondent requesting the return of her "deposit" of $15,120 within three days, indicating that she had decided not to sign a contract for the purchase of the homes. After she received the contracts, Ms. Schuetze returned them to Respondent unsigned. At no time prior to June 1, 1992, had Respondent presented to Ms. Schuetze for her signature a buyer-broker contract or a contract for sale and purchase. At no time pertinent hereto has Ms. Schuetze executed a buyer-broker contract or a contract for sale and purchase. Not having received a response to her letter of June 1, 1992, on or about June 8, 1992, Ms. Schuetze again made a demand by way of a letter for return of the $15,120 within three days. On or about June 11, 1992, at the request of Ms. Schuetze, Murray Realty returned her deposit of $2,000 on the two lots. At that time, Respondent had not contacted Murray Realty regarding her request, and he was unaware that Murray Realty had returned the deposit. Shortly thereafter, but also in the month of June 1992, Respondent agreed to return the $13,120, less the value of services he had already rendered, to Ms. Schuetze but requested additional time in which to so do since he had spent the money. She agreed to give Respondent additional time. On or about December 4, 1992, Respondent gave a statement to Petitioner in which he agreed to return, within 12 months, the $13,120 less 10 percent for the services that he believed that he had already rendered, leaving a balance of $11,808 to be returned. At the time of hearing on October 13, 1993, Respondent had failed to refund any of the money to Ms. Schuetze. Respondent has no history of disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order DISMISSING Count II of the amended administrative complaint; and SUSPENDING the broker's license of Robert A. Schwartz for five years. Provided, however, that the duration of his suspension may be lessened upon the return to Ms. Schuetze of the $13,120. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of May 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May 1994.
Findings Of Fact James W. Collins was first licensed in Florida as a real estate salesman in 1978 and has been continuously so licensed since that time. At all times relevant hereto, he was licensed as a real estate salesman. On January 14, 1983, Respondent pleaded nolo contendere to three counts of grand theft, adjudication of guilt was withheld and he was placed on probation for five years. Conditions of probation included residing in the Department of Corrections for 300 days and making restitution. On January 14, 1983, Respondent Pleaded nolo contendere: to uttering a forged instrument (using a stolen credit card), adjudication of guilt was withheld and he was placed on five years probation to run concurrently with the probation noted in Finding 2. On January 14, 1983, Respondent pleaded nolo contendere to five counts of forgery, involving the same stolen credit cards in 3 above, adjudication of guilt was withheld and he was sentenced to the same five years probation and conditions of probation as in 2 and 3 above. In an application for licensure as a real estate broker sworn to on June 20, 1984, Respondent answered question 8, which asks if applicant has ever been arrested or charged with the commission of an offense, "No." In the addendum to this application which also contains the signature of Respondent, he answered the rephrased question 8, "No."
Findings Of Fact Respondent Holt is a registered real estate salesman having been issued license number 0334695. She has not been issued a real estate broker's license. Count II of the Amended Administrative Complaint concerns a failure by the original Respondents to timely place an earnest money deposit in escrow. These funds came into the hands of Donna Duffy, the broker, and Best Sellers Group, Inc., the brokerage firm, on February 14, 1981, but were not deposited until February 23, 1981. Former Respondent Duffy and Respondent Holt testified on the question of who was responsible for making the deposit. These individuals have had a falling out and their testimony was conflicting as well as self-serving. Other testimony supporting this charge was inconclusive. Counts II and III concern a property lease which Respondent arranged for out of state property owners after she left the Atkins, Green, Stauffer and Clark brokerage. The lease arose out of an exclusive right of sale listing with this firm. However, the brokerage was not interested in handling the lease and Respondent undertook this transaction as a favor to the property owners. Holt located a potential lessee in October, 1980. She then forwarded a copy of the lease agreement to the owners along with a bill for her expenses and her personal check for $495. This amount equaled the first month's rent and security deposit which she had collected from the lessee. Thereafter, the property owners negotiated Holt's check, but it was dishonored by the bank. Subsequently, the property owners were deprived of a further $395 in rent collected by Holt. In August, 1981, Holt made restitution in the amount of $890. In mitigation, Holt stated that her estranged husband had withdrawn the original funds intended to cover the returned check. She also had experienced other expenses of divorce and family problems which led her to spend funds she subsequently collected. In further mitigation, Holt pointed out that she did not seek a commission for obtaining the lease, nor did she charge a monthly fee as is customary in such matters when handled through a brokerage.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent Mary Ann Holt guilty as charged in Counts II through VI of the Amended Administrative Complaint, and suspending her real estate salesman's license for a period of three years. DONE and ENTERED this 11th day of January, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.
