Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Division of Real Estate, (Division), was the state agency responsible for the regulation of the real estate profession in Florida. At the same time, Respondent, Thomas Twitty, Jr. was a licensed real estate broker in Florida, operating under license number 0090569, and was broker for the Respondent, Twitty and Company, Ltd., which operates under license number 0211681 at 13090 B. Starkey Road, Largo, Florida. Respondent, Lonnie A. Fitton, was a licensed real estate salesman under license number 0442127. On March 12, 1985, while employed as a salesman with Twitty & Company, Ltd., Fitton solicited and obtained from James L. Schneider a sales listing for Schneider's house located at 1316 Kennywood, Largo, Florida. The listed sales price was $129,500.00. Mr. Schneider had purchased the property, along with another individual no longer involved, Mr. Daly, from Pioneer Federal Savings and Loan Association in December, 1984 for $50,000.00 in a distress sale. The property had been occupied but was abandoned, and Pioneer, which had held the mortgage on it, gained title in a foreclosure action. When Schneider purchased the house, it was in poor condition. The walls and cement slabs on which it rested were severely cracked in numerous places. The foundation, pool decking, and decorative block walls were severely cracked, and it was determined that this condition was due to an abnormal settling and subsidence of the ground on which the house had been constructed. This settling caused and continues to cause door and window frames to fall out of square resulting in a poor fit and, in many cases, large gaps and along the window and door parameters. After Mr. Schneider purchased the property, Fitton, along with Fitton's father, both of whom resided next door to the property in question, assisted Mr. Schneider in making repairs to the property. Cracks were filled in with cement, plaster and caulking, and the property was painted which covered up the filled in cracks and gaps which had existed. When the repairs were completed, the property was put on the market with Fitton securing the listing. There is little evidence as to how the repairs were made to the property other than that the cracks were filled and painted. No effort was made to correct the soil conditions which underlay the problem. No evidence was produced to indicate whether the corrective actions taken by Mr. Schneider, along with the Fittons, was appropriate to correct problem causing the cracks or if filling was the appropriate method of correction. Also, it was not clearly established how much and of what nature the work was accomplished by Respondent, Fitton. Whereas he indicates his participation was limited to only carrying away trash and debris, Ms. Renshaw indicates he was actively engaged in actual repair work. Whatever the actual work involvement, it is clear that he knew of the condition of the house and was familiar with the steps taken to correct the deficiencies. In May, 1985, Yvonne L. and Lorraine Renshaw, sisters, were shown the property by Diane Y. Palcelli (Booth), a salesperson employed by a different realty company. The Renshaws made an initial offer of $96,000.00, and Ms. Palcelli transmitted the offer, through Fitton, (and Twitty & Co.), to Mr. Schneider who resided out of state. A series of proposals by both sides followed and ultimately, on June 1, 1985, the parties agreed upon a sales price of $106,000.00. After the sales price had been agreed upon and the contract for sale signed, during the interim period leading up to closing, which was held in late July, 1985, the Renshaws, along with their agent and friends, visited the property on numerous occasions even going so far as to commence decorative work to fix it up to their tastes. Also during this period, Fitton, who had done some work on the repairs to the property, advised his broker, Twitty, that there had been defects in the property and asked if it was necessary to disclose this. Mr. Twitty, who himself had, at this point, not seen the property, asked if the defects had been corrected, and when told that they had been, advised Fitton it was not necessary to make any further disclosure. During the course of their repeated visits to the property, the Renshaws noted some minor cracking which they brought to Fitton's and Daly's attention. Fitton mentioned this to Twitty who suggested they have someone out to look at them. Someone was called, reportedly an engineer, who looked at the cracks and agreed to fix them. Daly indicated insurance would cover the repairs and agreed to have the cracks repaired. They were. Ms. Palcelli, (Booth), also advised the Renshaws to have the property examined by their own expert to insure it was structurally sound. The Renshaws did not do this. The sale was closed on July 23, 1985 for the $106,000.00 purchase price and both Fitton and Twitty & Co. received their respective shares of the commission. Several months after the closing, the Renshaws noticed cracks beginning to open in the walls of the house and between the pool deck and the house wall. They contacted Ms. Palcelli, (Booth) who examined the property and then tried to contact Fitton. Both Fitton and Twitty disclaimed any responsibility for the damage. Thereafter, the Renshaws filed suit against Schneider, Daly, Fitton, Twitty and Twitty & Company in Circuit Court in Pinellas County alleging one Count of fraud and one Count of grand theft. On February 22, 1991, the Court entered its Order granting Defendants', (Respondents') Motion to Dismiss the Count alleging grand theft, but denied a similar motion relating to the fraud Count. That same date, the Court entered a Final Judgement concluding that the knowing representation the property was in "excellent" condition when they knew it was not, in an anticipation of making a profit on the sale, constituted fraud. Twitty was faulted for not having inquired of Fitton, his "novice employee", more thoroughly before advising him no disclosure to the buyers was necessary. Fitton is faulted by the Court for having: ... intentionally, knowingly and fraudulently misrepresented to the [Renshaws] the high quality, excellent condition and good value of the property, intending that the [Renshaws] would rely on those representations; [they] hid the true condition of the property from the [Renshaws] and induced them to make the purchase, believing that they were purchasing a quality property worth the price being asked. The Court also concluded that the [Respondents] were obligated to disclose to the [Renshaws] the information and knowledge which they had regarding the cracking and repairs. Fitton has moved for a rehearing on the basis that the property was described as excellent on the listing sheet by Mr. Schneider, not by him. However, he was obviously aware of the condition of the property from his frequent visits to the site while it was being readied for sale. In addition, the Judgement has now been appealed to the Second District Court of Appeals by Twitty and Twitty & Company, Ltd..
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered herein providing that: The salesman's license of Respondent, Lonnie A. Fitton, be reprimanded, and he be placed on probation, under such terms and conditions as may be stipulated by the Division, for a period of two years, and The licenses of Respondents, Thomas J. Twitty, Jr. and Twitty & Co., Ltd., be reprimanded and they be placed on probation, under such terms and conditions as may be stipulated by the Division, for a period of six months. RECOMMENDED this 21st day of March, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1608 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8. Accepted and incorporated herein. 9. Accepted and incorporated herein. 10. Accepted and incorporated herein. 11. First, second and fourth sentences accepted and incorporated herein. Third sentence modified to reflect that Fitton concealed but Twitty was culpably negligent in failing to disclose. FOR RESPONDENT, TWITTY AND TWITTY & CO. LTD.: 1. & 2. Accepted and incorporated herein. 3. Accepted. 4. Accepted. 5. Accepted and incorporated herein. 6. Accepted. 7. Accepted and incorporated herein. 8. 9. Accepted, but Twitty's agent, Respondent, Fitton, worked on and was familiar with the condition of the property prior to sale. Accepted. FOR RESPONDENT, FITTON: 1. Accepted and incorporated herein. 2. Accepted and incorporated herein. 3. Accepted. 4. Accepted except for the assertion that the individual who viewed the cracks was an engineer. There was no proof of this. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Dominic E. Amadio, Esquire 100 34th Street North, Suite 305 St. Petersburg, Florida 33713 Daniel J. Grieco, Esquire 19139 Gulf Blvd. Indian Shores, Florida 34635 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32801
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 At all times material to this case, the Respondent, Gloria Corsoro, has been a licensed real estate broker. She is the qualifying broker for the company known as Orange Management Corp. The Department is the state agency charged with the responsibility of regulating real estate licensees in the State of Florida. On or about July 20, 1994, the Respondent, Gloria Corsoro, entered a plea of nolo contendere to the crime of unlawful use of a notary. As a result, the Respondent was adjudicated guilty, placed on probation for a period of six months, and required to make payments and serve community service as directed by the court order. The plea and conviction stemmed from Respondent's conduct in connection with a warranty deed (the deed) which was recorded in the public record for Indian River County, Florida, on October 12, 1993. The deed conveyed a condominium unit from Leon R. Leavitt to the G. Corsoro Family Trust. The deed, notarized on October 1, 1989, purportedly bore the signatures of Leon R. Leavitt, the grantor; Mamie Cellura, a witness; Marie Copley, a witness; and Joseph Cellura, the notary before whom the document was executed. In fact, the document was not signed by Marie Copley or Leon R. Leavitt. At the time of the hearing, Mamie Cellura and Joseph Cellura were deceased. They were the parents of Marie Copley and her sister, the Respondent. At the time the deed was executed, Respondent signed Mr. Leavitt's name under a power of attorney he had reportedly given to her. Respondent further claims that Mamie Cellura signed for herself as a witness, signed for Marie Copley as a witness, and signed her husband's name with him (he had Parkinson's disease) as the notary. All this was completed, according to Respondent, Marie Copley, and Leon R. Leavitt, with everyone's full consent and knowledge. Marie Copley and Leon R. Leavitt were not present when the document was executed. Since they claim Respondent was authorized to execute the document, they are not concerned as to who signed the document but believe Mamie Cellura and Respondent signed as represented by Respondent. According to Nicholas Burczyk, the Respondent signed the document for all signatories on the instrument. Even by Respondent's account, the named parties did not execute the deed as presented on the face of the document. Respondent was originally charged with uttering a forged instrument and forgery. She chose to enter the plea as to the misdemeanor charge of unlawful use of a notary because she was "financially unable to pay to go to trial."
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, through the Florida Real Estate Commission enter a final order determining the Respondent, Gloria Corsoro violated Section 475.25(f), Florida Statutes, and imposing a reprimand together with an administrative fine in the amount of $1,000.00. DONE AND RECOMMENDED this 10th day of July, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 10th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0334 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is accepted as stated in findings of fact paragraphs 6 through 14 above; otherwise rejected as incomplete statement of fact. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. Respondent's assessment of the charges against Respondent together with the argument has been considered in the preparation of the foregoing. COPIES FURNISHED: Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Daniel Villazon Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Michael F. Berry MICHAEL F. BERRY, P.A. 2145-15th Avenue Vero Beach, Florida 32960
The Issue In this disciplinary proceeding, the issues are: (1) whether Respondents, who are licensed real estate brokers, failed within a reasonable time to satisfy a civil judgment relating to a real estate commission; (2) whether Respondents failed to maintain trust funds in an escrow account as required; and (3) whether disciplinary penalties should be imposed on Respondents, or either of them, if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact The Parties Respondent Marlene Montenegro Toirac ("Toirac") is a licensed real estate broker subject to the regulatory jurisdiction of the Florida Real Estate Commission ("Commission"). Respondent Home Center International Corp. ("HCIC") is and was at all times material hereto a corporation registered as a Florida real estate broker subject to the regulatory jurisdiction of the Commission. Toirac is an officer and principal of HCIC, and at all times relevant to this case she had substantial, if not exclusive, control of the corporation. Indeed, the evidence does not establish that HCIC engaged in any conduct distinct from Toirac's in connection with the transactions at issue. Therefore, Respondents will generally be referred to collectively as "Toirac" except when a need to distinguish between them arises. Petitioner Department of Business and Professional Regulation, Division of Real Estate, has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. The Veloso Judgment Toirac and Elena Veloso ("Veloso") did business together and wound up as opponents in court. Veloso got the better of Toirac, obtaining, on June 5, 2001, a judgment in the amount of $4,437.60 against her and HCIC from the Dade County Court. The judgment liquidated a real estate commission that Veloso claimed the defendants owed her. On June 12, 2001, Toirac filed a Motion to Set Aside Final Judgment, wherein she asked the county court to (a) vacate its judgment in favor of Veloso, on the ground that the defendants had not been served with process and (b) consolidate Veloso's county-court proceeding with an action then pending in circuit court, which Toirac had brought against Veloso.1 As of the final hearing in this case, Toirac's motion, after four years, had not been heard or decided. As of the final hearing in this case, Toirac had not satisfied the judgment in favor of Veloso. The Escrow Account Shortfall On January 24, 2002, Tibizay Morales, who was then employed by Petitioner as an investigator, conducted an audit of Toirac's records. (The impetus for this audit was Petitioner's receipt, on or about June 20, 2001, of a complaint from Veloso.) Pursuant to the audit, Ms. Morales determined that the balance in Toirac's escrow account was $4,961.05. Ms. Morales determined further that Toirac's trust liability, i.e. the total amount of money that she should have been holding in escrow on her clients' behalf, was $12,242.00. Thus, there existed a shortfall of $7,280.95 in Toirac's escrow account. Toirac was not able, at the time of the audit, to explain the shortfall. A few weeks later, however, by letter dated February 13, 2002, Toirac informed Ms. Morales that the shortfall had been caused by the issuance, "in error," of a check in the amount of $7,345.00, which was drawn on HCIC's escrow account and payable (evidently) to HCIC; HCIC had deposited the funds into its operating account, thereby creating, according to Toirac, an "overage" of $7,345.00 in the latter. To correct the problem, Toirac had arranged for the transfer of $7,345.00 from HCIC's operating account to its escrow account, which was accomplished on or about February 1, 2002. The Charges In counts I and IV, Petitioner charges Respondents with failing to account for and deliver trust funds, in violation of Section 475.25(1)(d)1., Florida Statutes.2 Petitioner's position is that Respondents failed within a reasonable time to satisfy the county-court judgment in favor of Veloso. In counts III and V, Petitioner accuses Respondents of having failed to maintain trust funds in the real estate brokerage escrow account until disbursement was properly authorized, in violation of Section 475.25(1)(k), Florida Statutes. Petitioner's position is that the escrow account shortfall identified on January 24, 2002, is proof that funds held in escrow had been disbursed without proper authorization. Ultimate Factual Determinations There is no dispute (for Toirac admitted at final hearing) that the judgment debt owed by Respondents to Veloso relates to a real estate commission. It is also undisputed that, as of the final hearing, the county-court judgment had not been satisfied. The undersigned determines that Respondents have failed to satisfy the civil judgment in Veloso's favor within a reasonable time.3 Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(d)1., Florida Statutes.4 It is determined that the erroneous transfer, via check, of funds from HCIC's escrow account to its operating account constituted an unauthorized disbursement of funds entrusted to Toirac by others who had dealt with her as a broker. While this might have resulted from the simple mistake of an incompetent bookkeeper, as Toirac maintains, nevertheless the disbursement was unauthorized and substantial——amounting to approximately 60 percent of Toirac's total trust liability. Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(k), Florida Statutes. In view of the foregoing, Petitioner has established the charges set forth in counts I, III, IV, and V of its Administrative Complaint, by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondents guilty as charged in counts I, III, IV, and V of the Administrative Complaint; (b) suspends Respondents' respective real estate licenses for 90 days; and (c) imposes an administrative fine of $2,500 against Respondents, jointly and severally; and (d) places Respondents on probation for a period of at least 3 years, subject to such lawful conditions as the Commission may specify. DONE AND ENTERED this 14th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2005.
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for regulation of licensed real estate salespersons in the State of Florida. At all times material to this case, the Respondent was a licensed real estate salesperson, holding Florida license no. 0566297. Most recently, the Respondent's license identifies her as a salesperson with Robert E. Bartlett at Bartlett Realty, 3500 First Avenue North, St. Petersburg, Florida 33701. From July 11, 1995, to September 27, 1996, the Respondent was employed by Century 21, Grant Realty of Florida, 6450 Seminole Boulevard, Largo, Florida 34642. Steve and Janice Perry (the Perrys) owned a house located at 12907 Hickorywood Lane, Largo, Florida. On or about June 5, 1996, the Perrys listed the house for sale through execution of an Exclusive Right to Sell Listing Agreement with the Respondent and Grant Realty. The Perrys were very anxious to sell the house and contacted the Respondent almost daily to determine whether there was activity on the listing. In time, the Respondent presented to the Perrys a written and signed offer (the "first offer") to purchase the property. The Perrys declined the offer, but proposed a counteroffer, and executed the document. The Respondent did not provide a copy of the offer or counteroffer to the Perrys. The Respondent eventually told the Perrys that the purchasers had been unable to obtain financing. The Respondent has no documentation of the first offer. The Respondent is unable to recall the names of the prospective buyers or of any agent representing the buyers. The files of Grant Realty contain no records related to the first offer. At some time after the first offer had failed to close, the Respondent presented a second written and signed offer to the Perrys. The Respondent indicated to the Perrys that she knew the second buyer. On the Respondent's advice, Mr. Perry amended the second offer, initialed the changes, and signed the document. Mr. Perry told the Respondent that if the amendments were not acceptable to the buyer, he would accept the original offer. The Respondent did not provide a copy of the second offer to the Perrys. The Respondent has no documentation of the second offer. The files of Grant Realty contain no records related to the second offer. The day following execution of the second offer, the Perrys inquired about the status of the matter. The Respondent told Mr. Perry that the buyer was part of an "investment group" and that the group was being contacted about the Perrys' amendments. The Perrys continued to contact the Respondent about the status of the second offer, but she offered little new information. The Respondent eventually told the Perrys that the prospective buyer thought she was being "too pushy" and was refusing to discuss the matter with her. The Respondent told the Perrys that the buyer's agent would handle the sale, but stated that it would be improper for the Perrys to contact the buyer's agent and declined to identify the agent. The Perrys continued to contact the Respondent and request information. She eventually indicated that the buyer's agent was "Dave," another Century 21 agent, and suggested it could be Dave Sweet, another Grant Realty agent. The Perrys contacted Dave Sweet. Mr. Sweet had no knowledge of the second offer and was unable to provide any information. At this point, the Perrys contacted the Respondent's employer and spoke with Karen Selby, a broker at Grant Realty. Ms. Selby was unaware of any offer on the property. Conrad Grant, owner/broker of the agency, was also unaware of any pending offer on the Perry property. Ms. Selby took possession of the Perry listing file. There was no documentation in the file suggesting that any offers were received. Ms. Selby questioned the Respondent about the second offer. The Respondent stated that the offer came from "John," a man who had come through an open house a few weeks earlier, that she'd prepared a written offer according to his direction but that he had not signed it, that Mr. Perry counteroffered, and that the counteroffer had been declined. The Respondent further told Ms. Selby that the buyer had been working with "Dave," an agent in another Century 21 agency. Ms. Selby asked for the full names of the buyer and the agent, but the Respondent was unable to provide them. Ms. Selby asked the Respondent to consult her notes or the open house sign- in sheet for the information. The Respondent was unable to provide any additional information related to the offer. Ms. Selby contacted the agency's attorney and arranged a meeting with the Respondent. During this meeting, the Respondent was again asked for, but was unable to provide, additional information related to the alleged offers. Subsequent to the meeting, the Respondent provided a name and telephone facsimile number for the alleged buyer. Using the phone number, Ms. Selby attempted to contact the buyer, identified as "Brian John Edridge." Ms. Selby received a response from a business which stated that no one by that name was involved in the business. Ms. Selby discussed the matter with Dave Sweet. Mr. Sweet told Ms. Selby he was not involved in the purported offer and had no information about the situation. The Respondent's employment at Grant Realty was terminated. There is no credible evidence that the "offers" presented by the Respondent to the Perrys were real. There is no credible evidence that the prospective "buyers" identified to the Perrys by the Respondent existed. There is no credible evidence that anyone identified as "Brian John Edridge," or any variation of the name, was involved in any prospective purchase of the Perry property. There is no credible evidence that an agent identified as "Dave" was involved in any prospective purchase of the Perry property. At the hearing, the Respondent testified in her own behalf. Her testimony lacks credibility and is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order revoking the Respondent's real estate license. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: James H. Gillis, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801-2169 Christine M. Ryall, Esquire Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times relevant hereto, respondent, Robert A. Sempell, was a licensed real estate broker having been issued license number 02178232 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Respondent, Virginia Bloise, was also a licensed real estate broker having been issued license number 0376974. Respondent, Home Shoppe, Inc., is a corporation registered as a broker having been issued license number 0229887. When the events herein occurred, the firm was located at 2610 North Federal Highway, Boynton Beach, Florida. Sempell operated as qualifying broker for Home Shoppe, Inc., from November 14, 1983, until October 12, 1984, Bloise was a salesperson with the same firm from July 9, 1984, until October 18, 1984, when she assumed the position of broker of record. Ilana Frank was the firm's only licensed salesperson, and she worked for the firm from 1983 until around January, 1986. In February, 1984, Frank represented Morgan King, an individual interested in purchasing a home located at 502 Northeast Second Street, Delray Beach, Florida. The property was listed with Douglas Rill and Associates, Inc., a West Palm Beach real estate firm. The home was owned by Joseph Michell, a Pratt-Whitney employee being transferred to Texas, and he had turned it over to TransAmerica Relocation Service, Inc. (TransAmerica), a firm that handled real estate sales for Pratt-Whitney employees who were relocating to other areas of the country. Deciding to purchase the property, King executed a standard contract on February 20, 1984 to purchase the home for $125,000. The contract contained a clause providing that the purchase was contingent on King obtaining a Veterans Administration (VA) loan in the amount of $122,250 at a 12 1/2 percent interest rate. 3/ A closing date of May 20, 1984, was established by the parties. The contract provided further that King would make a $1,200 cash deposit and that, pursuant to an addendum executed on February 22, he could rent the house until closing at a rate of $628 per month. Finally, the contract required that King give an extra $3800 to be deposited in escrow before moving into house, and within 45 days after the contract was executed, to 'submits' an additional $3,000. The addendum provided, however, that the $8,000 was "nonrefundable." After King signed the original contract, he gave Frank a $1,200 deposit. Frank, who was not a signatory on the firm's escrow account, carried the money to Sempell who placed his signature on the contract as an acknowledgment of receipt of deposit. Whether the money was deposited into the firm's escrow account is not of record. In any event, King did not have the extra $3800 needed to satisfy the initial deposit requirements of the contract. To ensure that a closing could be held, Frank approached Alan D. Mentser, a real estate salesman with another firm, Bob Railey's Realty, Inc., and asked if he would loan King the money until the anticipated closing on March 30, 1984. 4/ Mentser agreed to do so with the understanding that the $3800 would be placed immediately in an escrow account until closing. When he loaned the money, Mentser was under the impression that the money would be held in the escrow account of Douglas Rill, the listing broker. Because Mentser did not feel comfortable loaning the money to King, a person who he did not know, he required Frank to sign a promissory note on February 24, 1984 in the amount of $3800. At the same time, King signed an identical promissory note for $3800 payable to Frank. In addition, Frank orally agreed with Mentser that, for the use of his $3800 until March 30, 1984, she would pay him $1200 interest, or a handsome thirty percent return on his money. The $1200 was to be taken out of Frank's portion of the broker commission split. However, Mentser recognized that he was not a participating broker or salesman in the transaction and had no formal claim to the escrowed money in a realtor capacity. Indeed, the loan to Frank was personal in nature, and although Mentser intended it to be used as a part of the deposit, it was not considered a part of the real estate transaction. On February 24, Mentser gave Frank $3800 in cash which she promptly gave to Bloise the same day. Bloise was a signatory on the firm's trust account and had authority to make deposits and disbursements. After Bloise prepared a deposit receipt, Frank used $300 of the $3800 to purchase renter's insurance for King and deposited the remaining $3500 in Home Shoppe, Inc.'s escrow account at the Bank of South Palm Beaches in Lantana. The $300 deduction was made pursuant to an agreement by all parties. After King took possession of the property, he failed to qualify for a VA loan. Sometime later, he moved out of the house with no notice to the realtors or seller and gave no forwarding address. His whereabouts are unknown. TransAmerica later instituted eviction proceedings in order to legally take possession of the property. A final judgment of eviction was obtained on July 6, 1984. By now March 30, 1984, had come and gone and Mentser was eager to get his money. He initially contacted Frank but learned something had gone awry with the contract. When his informal requests to Frank were unsuccessful, Mentser engaged the services of an attorney who wrote a certified letter on May 4 to Sempell demanding a refund of his money from the firm's escrow account. After the letter was returned three times, the attorney had the letter hand- delivered to the firm's address where Frank signed for it. There is no evidence that Sempell was given the letter. After Mentser contacted Frank about his money, Frank spoke to Bloise on several occasions concerning Mentser's inquiry. The dates of these conversations are not of record. In any event, Bloise told her that a "dispute" had arisen over the escrow deposit and until it was resolved by the Division, Mentser could not get his money. This was not true since Bloise never turned the matter over to the Division for resolution. On July 12, 1984, the seller made a formal claim for the full deposit on the ground King had breached the contract and forfeited the deposit. Although there is no specific evidence as to the disposition of the claim, it may be reasonably inferred that TransAmerica's claim has not been honored. On August 6, 1984, Mentser obtained a default judgment against Frank in circuit court and was awarded $3800 in damages, prejudgment interest of $160, attorney fees of $300, and fees and costs of $50, or a total of $4310. He wisely did not request that he also be awarded the $1200 interest for the use of his money. The judgment has never been satisfied. Sempell went "out of the country" sometime in 1984 and was absent for much of the year. There is no evidence he received any demands for Mentser's money before he resigned as broker of record nor is there evidence that he was a signatory on Home Shoppe, Inc.'s escrow account. Indeed, the president of the bank in which the firm's escrow account was placed knew only that Bloise was a signatory on the account. Further, copies of cancelled checks written on the account and introduced into evidence reflected only Bloise's signature. The allegation that in October, 1984, Sempell absconded with certain funds from the firm's escrow account was not addressed at hearing and has been disregarded. Partial bank records of the firm's escrow account reflect that the $3500 was properly deposited into the account on February 27, 1984. As of December 28, 1984, the balance in the account had dropped to $1,688.98, which meant at least a part of the deposit had been spent for other purposes. Whether these expenditures occurred before or after Sempell resigned as broker of record is unclear. In any event, Bloise acknowledged to a Division investigator in May, 1987, that she had written a number of checks on the account for her own use. She justified this action by explaining that Frank had told her that the $3800 was their "own" money and could be spent "to run the business." Bloise also confirmed that, when this controversy arose, she was the only signatory on the firm's account and that Sempell had no authority to write checks or make disbursements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsections 475.25(1)(b), (d) and (k), Florida Statutes (1983), and that the broker licenses of Bloise and Home Shoppe, Inc. be suspended for five years. Sempell's broker license should be suspended for one year. DONE AND ORDERED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of July, 1988.
The Issue The issues for determination in this proceeding are whether Respondent violated Section 475.25(1)(b) Florida Statutes, 1/ by committing the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate broker under license number 0478560. The last license issued to Respondent was issued as a broker t/a Concord Financial Realty Co. ("CFR"), 495 E. Semoran Boulevard #115, Casselberry, Florida 32708. Respondent is the sole owner of CFR. CFR carries on regular business activities that include apartment rentals and sales of real estate. On January 31, 1992, Respondent and Mr. Charles Wallman, Respondent's husband, owned all of the stock of C.L. Wallman Associates, Inc ("CWA"). 2/ Respondent's husband owned Concord Financial Services, Inc. ("CFS"). CFS was formed to sell insurance and securities. Respondent and her husband operated CFR, CWA, and CFS out of shared office space. Respondent performed bookkeeping and secretarial duties for CWA and CFS. In January, 1992, Respondent's husband (the "seller") verbally agreed ("agreed") to sell 35 percent of the stock of CFS to Mr. John Topercer (the "purchaser") for $35,000. The seller and purchaser agreed to operate the company as "partners." The sale proceeds were to be invested in the company in which the seller and purchaser were to be partners. The purchaser paid the $35,000 purchase price in five installments from January 31, 1992, through March 12, 1992. During that time, the seller agreed to sell an additional 14 percent of the stock of CFS for an additional $13,000. The purchaser paid the additional $13,000 in three installments from April 14, 1992, through May 13, 1992. In May, 1992, the purchaser and seller agreed to another stock acquisition for $20,000. The seller would merge CFS, CWA, and CFR into a new company to be known as Concord Financial Centre ("CFC"). All of the business activities carried out by the separate companies would be consolidated into CFC. The purchaser would receive 49 percent of the stock of CFC in exchange for his 49 percent stock ownership in CFS. The seller and purchaser would operate CFC as "partners" in the same manner as originally contemplated for CFS. The sale proceeds were to be invested in the company in which the seller and purchaser were to be partners. The purchaser paid $20,000 in five installments from June 2 through June 22, 1992, and tendered his stock in CFS. However, the purchaser never received any stock in CFC. CFC was never formed. The seller never tendered any stock in CFC to the purchaser. The seller used some of the sale proceeds to operate CFS. However, approximately $30,000 of the sale proceeds were misappropriated and used by Respondent and her husband for personal purposes including a down payment on a house and a car. On January 6, 1993, the purchaser filed a civil complaint against Respondent and her husband alleging fraud, recision, and mismanagement of corporate funds. On August 8, 1994, the purchaser received judgment against Respondent and her husband in the amount of $30,000. Respondent and her husband have not satisfied the judgment. Neither has paid any money toward the judgment, and the purchaser has been unable to satisfy the judgment. Respondent knew of the negotiations and business transactions between her husband and Mr. Topercer. Respondent performed the duties of bookkeeper and documented all of the payments made by Mr. Topercer. Respondent was present during some of the discussions between her husband and Mr. Topercer. Respondent agreed to the merger of CFR into CFC. Respondent participated in the misappropriation of the purchase proceeds for her own personal use. When considered in their totality, the acts committed by Respondent constitute fraud and dishonest dealing by trick, scheme, or device within the meaning of Section 475.25(1)(b). Those acts were repeated and continued for more than six months. The amount misappropriated by Respondent is significant. During the three and a half years since June, 1992, Respondent has made no attempt at restitution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b) and revoking Respondent's real estate license. RECOMMENDED this 9th day of January, 1996, in Tallahassee, Florida. DANIEL MANRY, 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 9th day of January 1996.
The Issue Whether the Respondent should be disciplined upon a charge that he operated as a salesman for any person not registered as his broker in violation of Section 475.42(2)(1)(b), Florida Statutes, and whether Respondent should be disciplined based upon a charge that he collected money in connection with any real estate brokerage transaction without the express consent of his employer and not in the name of his employer in violation of Section 475.42(1)(d), Florida Statutes.
Findings Of Fact The Petitioner is the state agency charged with regulating and disciplining real estate salespersons. The Respondent is and was at all times material to this complaint a licensed real estate salesperson in the State of Florida having been issued license no. 0593108. The Respondent's current license was issued as a voluntary inactive with an address of 1421 Daytona Avenue, Holly Hill, Florida 32117. In mid-1994, the Respondent was employed by Donal E. Harrigan, d/b/a Donal E. Harrigan Company (hereinafter Harrigan). The Respondent was licensed as a real estate salesperson with Harrigan, and was engaged in the selling of timeshares. While employed with Harrigan, the Respondent and his wife talked with Fadel Elbadramany, the broker and owner of AAA Realty. Initially the Respondent and his wife talked with Elbadramany about the purchase of commercial real estate; however, Elbadramany solicited both of them as real estate salespersons with his company. The Respondent's then wife was eventually employed by Elbadramany as a salesperson. The Respondent discussed employment with Elbadramany; however, Elbadramany would not discuss the nature and scope of his business until the Respondent had signed an employment agreement containing a non-competition clause and DBPR Form 400.5. The Respondent was interested in selling commercial property, but did not want to cease selling timeshares. He discussed this with Elbadramany who advised him that he could do both. Pursuant to this discussion, the Respondent filled out a DBPR Form 400.5 checking at the top of said form under Section A, "Multiple Licenses." Nothing was checked on the form indicating a change of employment or broker. The Respondent signed the form in blank and left it with Elbadramany. Fadel Elbadramany was called to testify. Elbadramany testified that he employed the Respondent, that the Respondent obtained list of prospects from his office, that the Respondent never sold any real estate for him, and that he had observed the Respondent engaging in the sale of real estate which was not listed with his brokerage. Brenda Groves, the ex-wife of the Respondent, was called to testify. Brenda Groves was employed by AAA Realty and Elbadramany. During her employment, a conflict arose which resulted in litigation between Brenda Groves and Elbadramany over the anti-competitive clause contained in the employment contract. Brenda Grove testified that Elbadramany threatened to get her and to get her husband. Ms. Grove testified regarding the employment of her ex-husband. The Respondent was not employed by AAA Realty. Ms. Groves testimony is considered very credible. There was a conflict in the testimony between Elbadramany and the Respondent concerning who filled out and completed the DBPR Form 400.5. The most credible evidence is that it was completed by Elbadramany and filed with the Department of Professional Regulation, Division of Real Estate. The form as filled out, requests only multiple licensure. The request for multiple licensure is consistent with the Respondent's intent to continue to sell timeshares for Harrigan and commercial property for Elbadramany. However, prior to commencing employment with Elbadramany, but after filling out the form, the Respondent determined that he did not want to be employed by Elbadramany. Meanwhile, unbeknownst to the Respondent, the Division of Real Estate received the DBPR Form 400.5 and, because the Respondent is not a broker, did not issue him a multiple license. Instead, the Division of Real Estate shifted the Respondent's registration as real estate salesperson from Harrigan to AAA Realty. Although the Respondent's registration had been changed from AAA to Harrigan, the Respondent continued to be employed by Harrigan and to work actively in Harrigan's business selling timeshares. The testimony of the Respondent and that of Elbadramany was that he did not do any work for AAA Realty. There is no evidence in this proceeding that the Respondent received a copy of the licensing change or was made aware of this change prior to March 10, 1995. On March 10, 1995, the Respondent was interviewed by an investigator of the Department of Business and Professional Regulation. At this time the Respondent became aware that his registration was with AAA Realty. As a result of this interview, the Respondent contacted the Department and discussed with them how to correct the status of his registration. In order to accomplish that in accordance with the instruction he received, the Respondent filed out a DBPR Form 400.5 registering with Harrigan by whom he had been continuously employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Division of Real Estate enter its final order dismissing the administrative complaint against the Respondent Gary Allen Groves. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Gary Allen Groves 1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is a licensed real estate salesman and held such license at all times material to this proceeding. She was a salesman with Miller, Cowherd and Kerver, Inc. Realtors (MCK) at the time of the transactions relevant to this proceeding. Complainant Loretta Fram listed her home in Ft. Lauderdale with Respondent and utilized her services as realtor in the purchase of a condominium apartment in Plantation. Another member of the MCK firm had previously prepared a contract for Fram to purchase the same condominium unit, but it was not executed. The first condominium contract included a contingency clause that required return of Fram's $5,000 deposit if she did not sell her house prior to the condominium closing. This clause was not included in the contract prepared by Respondent even though Fram told her she could not make the condominium down payment due at closing without the proceeds from the sale of her house. Respondent assured Fram the house would be sold in time or that she would work something out. Just prior to the scheduled condominium closing, Respondent arranged a 90-day "swing loan" for $15,000, since funds from the house sale were not forthcoming. Without this loan, Fram would not have been able to close on the condominium and may have had to forfeit her deposit. The swing loan interest and fees amounted to $2,030. Fram paid this amount in January, 1980, on Respondent's assurance that she would be reimbursed. Respondent reduced such assurance to writing in a document dated January 8, 1980 (Petitioner's Exhibit 6). However, after three years, Fram has not been reimbursed. At the time Fram attempted to move into her condominium unit, she was refused admittance by the condominium association. Respondent has reasonably relied on an acceptance the association issued in conjunction with the initial contract. The association thereafter held a meeting and ratified its earlier decision to accept Fram.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a real estate salesman for a period of three years. DONE and ENTERED this 12th day of July, 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 12th day of July, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Edward Oddo, Esquire 2660 Northwest 32nd Street Boca Raton, Florida 33432 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
