Findings Of Fact The Defendants are registered with the Florida Real Estate Commission as brokers. The Defendant Mershon is the President of the Defendant Orlando Metro Realty, Inc. During May, 1971, the Defendant Mershon, acting as a real estate broker, negotiated a sale of land from Carolina Caribbean Corporation to Edye Lynn. The property is located in North Carolina, and the contract for sale was signed in an airplane between North Carolina and Florida. For reasons that are not relevant to this proceeding, Ms. Lynn became disenchanted with the transaction. The Defendant Mershon agreed to assist her in finding a purchaser. On January 23, 1972, Charles Schiller Martin, signed a contract to purchase Ms. Lynn's property. The Defendants acted as brokers in securing the purchaser. The contract was signed in North Carolina. The contract was received in evidence, and is marked as Exhibit number 1 to each of the four depositions. Mr. Martin deposited the sum of $500 with the Defendant when he signed the contract. A copy of the cancelled check from Mr. Martin to the Defendants was received in evidence and is marked as Exhibit number 2 to each of the depositions. Ms. Lynn accepted Mr. Martin's offer. Mr. Martin submitted the contract to his attorney, George W. English III. On March 7, 1972 Mr. English wrote to Henry J. Prominski, an attorney who represented Ms. Lynn, requesting that several items respecting the property be forwarded to him. This letter was received in evidence and is marked as Exhibit number 5 to each of the depositions. On March 22, 1972, Mr. English wrote to Mr. Prominski informing him that Mr. Martin wished to cancel the contract to purchase. A copy of this letter was received in evidence, and is marked as Exhibit number 3 to each of the depositions. Mr. English advised Mr. Martin that marketable title could not be delivered, primarily because there were deed restrictions applying to the property which were not mentioned in the contract for sale. Assessments for water, sewer, and road grading were cited by Mr. English as particularly onerous. The March 22 letter was followed on April 25, 1972, with another letter. This letter was received in evidence, and is identified as Exhibit number 4 to each of the depositions. Mr. English never made any direct demand upon Mr. Mershon for return of the $500 deposit to Mr. Martin. He did make a demand upon Mr. Prominski. It is Mr. English's legal opinion that the seller could not deliver marketable title to the buyer. Mr. Prominski, representing the seller, is of the opinion that marketable title was available to be delivered to the buyer. Mr. Prominski stated that his client did not default in her obligations under the contract. Mr. Mershon opted to construe the purchase contract between Mr. Martin and Ms. Lynn as breeched by Mr. Martin. He forwarded $250 of the deposit to Ms. Lynn and retained $250 for himself. He explained his action in this regard in a letter to Mr. Prominski dated September 13, 1972. This letter was received in evidence, and is marked as Defendants' Exhibit number 1. This arrangement was apparently satisfactory to Ms. Lynn, and Mr. Prominski communicated Ms. Lynn's approval through a letter dated October 11, 1972. This letter was received in evidence, and is marked as Exhibit number 8 to each of the depositions. Approximately three weeks prior to the time that Mr. Martin signed the contract to purchase the Lynn property, Mr. Mershon delivered copies of various reports to Mr. Martin, including the restrictions that would apply to the property, and the contract to purchase from Carolina Caribbean Corporation which had been executed by Ms. Lynn. At approximately the time that Mr. Martin signed the contract, Mr. Mershon advised him that title insurance was available. The Defendants acted as brokers in many transactions in the development in which the property involved in this case is located. They had obtained title insurance on many similar lots. Only in this case was there any objection to title. Prior to his distributing $250 of the $500 deposit to Ms. Lynn and his retaining the remaining $250, Mr. Mershon consulted with attorneys for Carolina Caribbean Corporation who advised him that the Martins had defaulted in their obligations. Mr. Mershon personally spent approximately $1,000.00 in transporting Mr. Martin from Florida to North Carolina. Defendants did not seek the advice of the Florida Real Estate Commision respecting the disposition of the deposit monies, did not submit the issue to arbitration, did not interplead the parties, and did not otherwise seek an adjudication in a proper court. No evidence was offered with respect to standards for determining the marketability of real property in North Carolina. No evidence was offered respecting the marketability of title to the land in this case, other than the opinions of Attorney English, Attorney Prominski, and Defendant Mershon.
Findings Of Fact I.Z. Mann Realty Corporation was at all times material to this proceeding a corporation registered as a real estate broker with the Commission, with its principal business address at 240 North Washington Boulevard, Sarasota, Florida, 33577. Irving Z. Mann was at all times material to this proceeding a real estate broker registered with the Commission, and the holder of two registration certificates: one as an individual broker with an office at 2197 Princeton Street, Sarasota, Florida 33577; and the other license as president and active broker of I.Z. Mann Realty Corporation. Stanley M. Robbins was at all times material to this proceeding a registered real estate salesman in the employ of I.Z. Mann Realty Corporation. At all times material to this proceeding Fritz K. Grolock was a registered real estate salesman, and from April 12, 1972, to February 2, 1976, he was registered with the Commission as a real estate salesman in the employ of I.Z. Mann Realty Corporation. From February 2, 1976, to November 29, 1976, Mr. Grolock was registered with the Commission as a real estate salesman in the employ of I.Z. Mann & Associates, Inc. At all times material to this proceeding Irving Z. Mann was president, and Stanley M. Robbins was vice president, assistant secretary, treasurer and general sales manager of I.Z. Mann & Associates, Inc., a Florida corporation which was the owner and developer of the Palma Sola Harbor condominium development in Sarasota County, Florida. On or before February 4, 1976, Mr. Grolock and Mr. Robbins had agreed that Mr. Grolock would receive for his services as a real estate salesman for I.Z. Mann & Associates, Inc. a three percent commission based upon the sales price of individual condominium units sold at Palma Sola Harbor. Commissions were to be paid to Mr.Grolock at the end of the month in which the sale of each such unit was consummated. Mr. Robbins explained to Mr. Grolock at the time of this agreement that I.Z. Mann & Associates, Inc. was short of cash, and that should Grolock make any sales, he might have to wait for some indefinite period of time to receive his commission. Mr. Grolock indicated his willingness at the time to proceed on that basis. No testimony was adduced, and no documentary evidence was offered to establish that Mr. Grolock was employed by I.Z. Mann Realty Corporation, Inc., at any time material to the allegations contained in the Administrative Complaint. During the course of his employment as a real estate salesman with I.Z. Mann Realty Corporation, Inc. Mr. Grolock solicited and obtained a real property sales contract between Elmer C. Sutter and Ruth W. Sutter, as purchasers, and I.Z. Mann Realty Corporation, Inc., as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $26,450, and the evidence established that Mr.Grolock is due, and has not been paid, a commission of $793.50 for that sale. During the course of his employment as a real estate salesman with I.Z. Mann & Associates, Inc., Mr. Grolock solicited and obtained a real property sales contract between Martin G. Tepatti and Dorothy L. Tepatti, as purchasers, and I.Z. Mann Realty Corporation, Inc., as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $37,450, and the evidence established that Mr. Grolock is due, and has not been paid, a commission of $1,123.50 for that sale. During the course of his employment as a real estate salesman with I.Z. Mann Realty Corporation, Inc., Mr. Grolock solicited and obtained real property sales contract (Petitioner's Exhibit #1) dated April 29, 1976, between Donald F. Brown and Barbara S. Brown, as purchasers, and I.Z. Mann Realty Corporation, Inc. as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $37,450, and the evidence established that Mr. Grolock is due, and has not been paid, a real estate commission of $1,123.50 for that sale. Mr. Grolock did not attend the closing of any of the three transactions referenced above and described in the Administrative Complaint. However, the only evidence of record establishes that these transactions resulted in "negative closings" that is, after deductions of amounts due on the pre-existing construction mortgage, charges for documentary stamp taxes, tax pro-rations and the like, no funds remained for disbursement to I.Z. Mann Realty Corporation, Inc. for payment to Mr. Grolock as a commission. Neither Mr. Mann, Mr. Robbins, I.Z. Mann Realty Corporation, nor I.Z. Mann & Associates, Inc. received any funds at the closing of these transactions. Some time after the closings of the three transactions described in the Administrative Complaint, Mr. Grolock spoke with Mr. Robbins concerning non- payment of his commissions. Mr. Robbins explained t6hat the three transactions had resulted in "negative closings," but that if Mr. Grolock would be patient he would be paid his commissions in due course. Mr. Robbins discussed the commissions once or twice thereafter with Mr. Grolock, each time explaining that the company was short of money but that Mr. Grolock would be paid eventually. Because of poor market conditions in the condominium industry, I.Z. Mann Realty & Associates experienced financial problems which ultimately resulted in the company's insolvency. The company eventually voluntarily relinquished its assets to creditors, or had its interest in those assets foreclosed, and at the present time is no longer actively engaged in business. By letters to Mr. Robbins dated December 7, 1976, and January 19, 1977, (Petitioner's Exhibit #2) Mr. Grolock demanded that some arrangements be made for payment of his past due commissions. When he received no reply to these letters, Mr. Grolock sent a letter (Petitioner's Exhibit #2) to Mr. Mann dated April 25, 1977, listing the transactions which resulted in $3,040.50 being owed to him for real estate commissions. Shortly after receiving this letter, Mr. Mann telephoned Mr. Grolock, on May 5, 1977, and told him ". . . the company had been inactive for a long time, but that I would see to it that he would get paid eventually. Just give us a chance to get some money to do it." (Transcript, p. 63). Mr. Grolock agreed at that time to wait for payment of his commissions. Some time after his May 5, 1977, telephone conversation with Mr. Mann, Mr. Grolock filed a complaint with the Commission ". . . [b]ecause I found no other recourse. . . [t]o obtain my commission . . . ." (Transcript, p. 26).
Findings Of Fact Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued. DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN 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 2nd day of May, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 Michael E. Crane, Esquire 521 Landmark Building Naples, Florida 33940 =================================================================
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
The Issue Whether the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes. Whether the Respondent's guilty of failing to return an earnest money deposit upon demand, in violation of Section 475.25(1)(d), Florida Statutes, and of failing to comply with the directives of this statute when conflicting demands were made upon him concerning escrowed property. By Administrative Complaint issued on September 2, 1981, the Petitioner seeks to revoke or suspend the Respondent's real estate license, or otherwise discipline him, for alleged violations of Section 475.25(1)(b) and Section 475.25(1)(d), Florida Statutes. The Petitioner presented two witnesses in support of the Administrative Complaint, together with eleven exhibits which were received in evidence. The Respondent testified in his own behalf, along with one other witness, and introduced two exhibits which were received in evidence.
Findings Of Fact Based upon the testimony and exhibits in evidence, the stipulations of the parties, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent, Robert W. Browning, is a licensed real estate broker, having been issued License No. 0112998. The Respondent has a 25 percent interest in a Florida Partnership known as WTBS. The remaining partners are Orian P. Wells, John S. Thompson, and Luther W. Strickland. The Partnership WTBS purchased many acres of land in Dixie County, Florida from Georgia- Pacific, platted this land into lots, and offered these lots for sale. The Respondent was the registered real estate broker responsible for sales of property for the Partnership WTBS, and he was the person who had the authority to sign all closing documents in connection with transactions on behalf of the partnership. Dale Herring a licensed salesman working for the Respondent, conducted sales of the Dixie County parcels while acting under the brokerage license of the Respondent. Dale Herring negotiated a contract dated December 13, 1980, in which Robert and Frances Harburg agreed to purchase approxi- mately 14 acres of the Dixie County property. Mr. Harburg wrote a check for $2,850, payable to the Respondent, and gave the check to Dale Herring as a deposit on the property described in the contract. The Respondent placed this deposit check in his escrow account. The Respondent signed the Purchase and Sale Agreement with the Harburgs on behalf of the Partnership WTBS, as Seller, on December 16, 1980. This purchase and Sale Agreement contained the following pertinent provisions: Closing was to take place December 29, 1980. Graded-road access would be completed within four weeks of the contract. Conveyance of the property was to be by warranty deed. Seller would pay for stamps on the deed, title insurance, survey, and real estate commission. Paragraph 10 of this Agreement states: "If the Seller fails to perform any of the covenants of this contract, the [deposit] paid by the Buyer, at the option of the Buyer, shall be returned to the Buyer on demand. The closing was to take place by mail. When the Harburgs did not receive their closing docu- ments on the date set for closing, they telephoned the Respondent's real estate office. The Respondent did not return their call. The Harburgs received the closing documents January 5, 1981. The documents received conflicted with the Purchase and Sale Agreement by indicating: Conveyance was to be by contract for deed rather than by warranty deed. The Purchaser could not transfer the property without approval of the Seller. If the Seller could not give clear title to the property for any reason, the purchase price could be refunded with no interest. The contract for deed provided for a five day default period. The contract for deed required the buyer to pay certain monies to Georgia-pacific in the event of a release request. The contract for deed required the Buyer to pay for stamps on the deed. After reviewing the submitted closing documents, Mr. Harburg sent a letter to the Respondent dated January 7, 1981, requesting the return of his earnest money deposit because the closing documents submitted were in conflict with the sales contract. The purpose of this letter was to put the Respondent on notice of the Harburg's dissatisfaction with the submitted documents. The Respondent did not reply to Mr. Harburg's letter of January 7, 1981. The Harburgs visited the subject property on January 19, 1981, and found that there had been no material progress made on completion of the graded access road as required by the Purchase and Sale Agreement. On January 20, 1981, Mr. Harburg sent a second letter to Mr. Browning, requesting the return of his earnest money deposit because: The closing papers were received seven days late. The closing papers were in conflict with the Purchase and Sale Agreement. The graded access road was not completed. Upon receiving no reply from the Respondent, the Harburgs retained Richard Oehler, Esquire, to recover their earnest money deposit. Mr. Oehler wrote to the Respondent on February 6, 1981, demanding the return of this deposit within ten days. The Respondent replied to Mr. Oehler on February 10, 1981, agreeing to return the deposit upon resale of the subject property. The Respondent indicated that this would be within 30 days. Mr. Oehler wrote the Respondent on February 12, 1982, advising that the Harburgs would not wait 30 days, and that if the deposit was not returned immediately the Harburgs would file suit to recover the deposit. Mr. Oehler talked with the Respondent on February 9, 1981, March 13, 1981, March 30, 1981, and April 6, 1981, without success in securing return of the deposit. The Harburgs filed suit seeking return of the deposit in September, 1981. In mid-1981, the Respondent withdrew the deposit money from his escrow account, and deposited it into the escrow account of the attorney who represented both himself as broker and WTBS as Seller of the subject property. The Respondent neither offered to rectify the conflict in the closing documents, nor did he advise the Harburgs of any dispute between them and the Seller, WTBS, con- cerning their right to the earnest money deposit. The Respondent failed to notify the Florida Real Estate Commission concerning the dispute between the Buyer and Seller as to their rights to the earnest money deposit. The lawsuit filed by the Harburgs in September, 1981, was dismissed upon the return of their earnest money by the Respondent in February, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Robert W. Browning, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and Section 475.25(1)(d), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered this 1st day of November, 1982, in Tallahassee, Florida. 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 1st day of November, 1982. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 Allen C. D. Scott, Esquire 12 North University Boulevard Jacksonville, Florida William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32501 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On January 23, 1984, the Secretary of the Department of professional Regulation (hereinafter "Department") signed an Administrative Complaint, count one of which alleges, in pertinent part: Respondents in their capacity as real estate brokers employed Doris H. Swanton as a real estate broker and office manager from approximately October 20, 1980 to April 18, 1982. On or about April 8, 1982 to the present, Doris H. Swanton has made numerous and repeated demands upon Respondents for the payment of a share of the compensation received by Respondent and earned by Doris H. Swanton while in the employ of the Respondents in the amount totalling approximately $7,815.52 involving a number of brokerage transactions. A copy of a list reflecting the transactions, dates and amounts owing is attached as Petitioner's Exhibit 1. Since April 8, 1982, Respondents have failed, refused and neglected to give a reasonable accounting or to pay Doris H. Swanton the $7,815.52 or any part thereof notwithstanding the demands for same made upon Respondents by Doris H. Swanton, the person entitled to said money. That by reason of the foregoing, Respondents are guilty of having failed to account and deliver a share of a real estate commission and other compensation to Doris H. Swanton in violation of Subsection 475.25(1)(d), Florida Statutes. The Administrative Complaint signed on January 23, 1984, does not contain an allegation that there has been a judicial determination that Respondents are not entitled to retain the property claimed by Doris H. Swanton. On February 22, 1984, the Respondents served an Answer and Written Defenses in which the Respondents, inter alia, admit the first of the paragraphs quoted in finding number 1, above, and deny the other three paragraphs quoted above. The Respondents' Answer and Written Defenses also sets forth a detailed itemization of Respondents' reasons for contending that Doris H. Swanton is not entitled to the full amount of a single one of the twelve commissions she claims are due her from the Respondents. ANALYSIS OF THE ISSUES The thesis of the Motion to Dismiss filed by Respondents is that a broker cannot be disciplined for failure to account for and deliver non-escrowed property until there has been a judicial determination that the broker is not entitled to retain the property in dispute. The case of Golub v. Department of Professional Regulation, F.R.E.C., 9 FLW 460 (Fla. 5th DCA, Feb. 23, 1984), appears to be exactly on point. There a majority of the court concluded: Once there is a judicial determination that a broker is not entitled to retain non-escrowed property then this statute [475.25(1)(d)] is authority to discipline the broker for a failure to account and deliver the property to any person, including a salesman, who is entitled to its prossession. Corollary to the quoted language from Golub is the conclusion that until there is a judicial determination that a broker is not entitled to retain non- escrowed property, the statute does not authorize discipline of a broker for failure toe account and deliver the property. In other words, when the property in dispute is non-escrowed property, a judicial determination that a broker is not entitled to retain the property is an indispensable prerequisite to the establishment of a violation of Section 475.25(1)(d), Florida Statutes, on the basis of a failure to account for or deliver such property. Accordingly, until a court determines that the Respondents in this case are not entitled to retain the property in dispute in this case, it cannot be established that Respondents have violated Section 475.25(1)(d), Florida Statutes. And inasmuch as the Administrative Complaint fails to allege that there has been any such judicial determination, the Administrative Complaint is fatally deficient.
Recommendation Based on the foregoing Findings of Fact, Analysis of the Issues, and Conclusions of Law, I recommend that the Florida Real Estate Commission issue a Final Order in this case dismissing the Administrative Complaint without prejudice to the refiling of an Administrative Complaint against these Respondents if and when a court determines that the Respondents are not entitled to the property claimed by Doris H. Swanton. DONE and ORDERED this 3rd day of July, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1984. COPIES FURNISHED: Robert W. Lee, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 G. Michael Keenan, Esquire Post Office Box 1900 Fort Lauderdale, Florida 33302 Mr. Harold R. Huff, Director Division of Real Estate Legal Section 400 West Robinson Street Orlando, Florida 32801
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1982.
