Findings Of Fact At all times pertinent hereto Respondent O'Connor was a licensed real estate broker in the State of Florida having been issued license lumber 0065137. Respondent Berg was a licensed real estate salesman having been issued license number 0391098. At all pertinent times alleged in the Administrative Complaint Respondent Berg was licensed and operated as a real estate salesman in the employ of broker Respondent Edward M. O Connor. On or about February 15, 1953, Respondent Berg entered into a contract as purchaser seeking to purchase certain real property in Charlotte County, Florida, described as: Lot 26, Block 1, Charlotte Harbour Subdivision, also known as 201 Cortex Street, Charlotte County, Florida. The property was owned by Louis J. Knetter. Mr. Knetter, as seller, was represented by Emanuel Consalvo, a licensed real estate salesman or broker. This proposed contract, contrary to the allegations of Petitioner, made no mention in its terms of any $500 binder or earnest money deposit. Rather, the contract, instead of mentioning a cash deposit, had the words "commission" clearly written on the top, being Berg's pledge to pay $300 of the real estate commission he would be entitled to on the transaction to the buyer at closing. The proposed contract was tendered to Emanuel Consalvo , the seller's agent, who examined it thoroughly with his client Louis Knetter. Mr. Knetter subsequently refused to enter into that proposed contract. Respondent Berg then made a second offer to purchase the same property which was accepted by the seller. This offer was made on April 18, 1983. The contract regarding the second offer was prepared from a rough draft which Respondent Berg had handwritten. He handwrote the word "commission" precisely as on the original offer of February 15, 1983. On the final typed copy of the contract the abbreviated word "comm.," was typed into the contract to indicate (and it was Respondent Berg's intent) that the commission to be earned by Berg would be used as a down payment at closing rather than any proposal by Berg (or O'Connor) to post $500 or other amount of cash earnest money deposit upon the offering of the contract. Respondent Berg genuinely believed that anything of value could be inserted into a contract to provide consideration and could serve as sufficient consideration therefor including his offer to pay to the buyer a part of the real estate commission he would be entitled to with regard to that transaction Neither Respondents Berg nor O'Connor made any representations or statements, verbally or written, to Louis Knetter or Emanuel Consalvo to the effect that there ever was an earnest money deposit in any amount posted by the purchaser Berg, or on account at O'Connor Realty. Kevin O'Connor, the son of Respondent O'Connor, is also a licensed real estate broker who holds a degree in the field of real estate. He established that the textbook practice and indeed, the general real estate industry custom or practice in the Charlotte County area allows for anything of value to be used as consideration for a real estate contract and that a cash earnest money deposit is not necessary. He established the industry practice with regard to the posting of earnest money deposits for real estate sales contracts and demonstrated that unless a contract, by its terms, clearly indicates that an earnest money deposit has been posted, there is no basis for a seller or his agent to assume that to be the case. Kevin O'Connor, a witness for the Respondents, had personal contact with the seller's agent, Emanuel Consalvo, regarding the transaction and established that the Respondent Edward M. O'Connor was not even in his office or in the area during the time of the contract proposal or offer. Kevin O'Connor was operating the office in the Respondent Edward O'Connor's absence. Kevin 0'Connor established that the question of an earnest money deposit was never discussed with Consalvo and that neither Consalvo nor Knetter ever raised a question during the pendency of the transaction concerning the existence of an earnest money deposit. Kevin O'Connor never told Consalvo that any money was in escrow nor did Respondent Berg or Edward O'Connor. No representation was ever made to Consalvo or Knetter, singly or jointly, to the effect that any money had been placed on deposit or in escrow with regard to either of the two offers. Indeed, Mr. Consalvo acknowledged that no one at 0'Connor Realty ever told him of any money being placed in an escrow account. The transaction ultimately failed to close because the seller failed to include all the furniture with the home as required by the contract. At that juncture, the seller demanded the supposed $500 earnest money deposit to be paid him as a forfeiture on the mistaken belief that an earnest money deposit had been posted with regard to the transaction. Such was not the case however, nor was it ever represented to be the case.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the complaint filed by Petitioner against Respondents William Berg and Edward M. 0'Connor t/a O'Connor Realty, be DISMISSED in its entirety. DONE and ENTERED this 5th day of February, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-0180 PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not in itself dispositive of the material issues presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not dispositive of the material issues presented in itself. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. RESPONDENT EDWARD O'CONNOR'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting a conclusion of law. Accepted. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Accepted. RESPONDENT WILLIAM BERG'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Elwood P. Safron, Esquire SAFRON, RODNEY & DZUPAK 306 E. Olympia Punta Gorda, Florida 33950 Jesus Hevia, Esquire WOTITZKY, WOTITZKY, WILKINS, FROHLICH & JONES 201 West Marion Avenue Punta Gorda, Florida 33950 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
The Issue The issues presented in this case concern an Administrative Complaint brought by the Petitioner against the Respondent, accusing the Respondent of failing to account or deliver, upon demand, money which he would not be entitled to retain, which money was due and owing to a real estate salesman employee of the Respondent broker, all in violation of Subsection 475.25(1)(d), Florida Statutes.
Findings Of Fact On December 9, 1981, Petitioner, State of Florida, Department of Professional Regulation, Board of Real Estate, now Florida Real Estate Commission, filed an Administrative Complaint against Respondent alleging the violation referred to in the Issues statement of this Recommended Order. Respondent who is a licensed real estate broker in the State of Florida, having been issued License No. 0137645, requested a Subsection 120.57(1), Florida Statutes, hearing, to resolve the factual disputes between the parties and the case was subsequently referred to the Division of Administrative Hearings for consideration. This request for assignment of a Hearing Officer was received on January 28, 1982, by the Division and a formal hearing was conducted on April 29, 1982. Notwithstanding notice provided to the parties, Respondent did not attend the hearing. At all times pertinent to the Administrative Complaint, Respondent, George F. Lewis, was the record broker for George F. Lewis Realty, Inc., located at 4237 Cape Coral Bridge Road, Fort Myers, Florida, 33907, the address listed with Petitioner as the business premises for Respondent. On December 2, 1981, Eleni Kaklis, a licensed Florida real estate salesman, employed by George Lewis Realty, Inc., while acting in the capacity of real estate salesman for that corporation, participated in the execution of a contract for sale and purchase in Lee County, Florida. The sellers were James Henry and Ruth Elizabeth Aalderink, and the purchasers were Stanley M. and Mary Jo Shaver. The terms and conditions of that contract may be found in the Petitioner's Exhibit No. 4, which is a copy of the contract admitted as evidence. The contract concerned residential property, and that property had been the subject of a listing through a real estate firm unaffiliated with the Lewis corporation. The listing broker was Aloia Realty. Kaklis had reviewed the multiple listings book in her office with the purchasers and had shown several other residences before the Shavers decided to purchase the Aalderink property. She also prepared the purchase contract which has been discussed. Respondent was not involved in the transaction, in the sense of actively showing property or consulting with the clients or in the preparation of the contract. A real estate closing was held on the Aalderink property in February, 1981. On February 17, 1981, George Lewis Realty, Inc., was paid a commission in the amount of $1,587.00, which represented the fifty (50) percent commission entitlement for the selling broker, with an equal amount being due the listing broker, Aloia Realty. The money paid the Lewis corporation was by a check which check was cashed by George Lewis. See Petitioner's Composite Exhibit No. 3. In keeping with the terms and conditions of the employment agreement between Kaklis and George F. Lewis Realty, Inc., set forth in Petitioner's Exhibits Nos. 5 and 6, specifically the numbered paragraphs 4 and 5, at page 11 of Petitioner's Exhibit No. 6, Kaklis was to receive fifty (50) percent of the commission paid to George F. Lewis Realty, Inc., less franchise fees due to Better Homes and Gardens. (Petitioners Exhibit No. 5, is constituted of a copy of excerpts of the contract between Kaklis and Lewis Realty, Inc., in the person of George Lewis, and Petitioner's Exhibit No. 6 is a format of the complete contract signed by Kaklis with the corporation through the offices or George Lewis, broker for the corporation.) Respondent was responsible for and obligated to Kaklis for the payment of her commission fee, which had been given to him by Kaklis by the delivery of a title company check which has been discussed herein. Nonetheless, Kaklis did not receive the commission fee for the sale of the Aalderink property and has been refused that commission in the face of repeated demands, on at least three (3) occasions. Respondent has always answered that request by stating that he did not have the money.
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 Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 9th day of June, 1987.
Findings Of Fact Respondent Eugene Lay was registered as a business opportunity broker on March 15, 1982 by the Board of Real Estate (now the Florida Real Estate Commission). His registration was effective from January 5, 1982 until January 1, 1984. He was issued registration number 1800461. On February 12, 1982 Mr. Lay received $3,750 from Christopher Orthodox on a contract for the purchase of a business known as Personal Valet Services, Inc. The $3,750 were to be held in trust by Mr. Lay until the closing of the business purchase transaction. Mr. Lay did not put the money in a trust account but instead spent the money for his own personal business. When it later appeared to Mr. Orthodox that the transaction was not going to close, he demanded the return of his $3,750 deposit. Mr. Lay failed to return it to him and Mr. Orthodox was not able to purchase the business. His $3,750 has never been returned. On February 27, 1982 Mr. Lay obtained from Mr. Orthodox and Loretta Orthodox an additional $9,000 as a deposit to be held in trust pending their obtaining a Small Business Administration loan to purchase a business known as Starlight Creations, Inc. The purchase contract was conditioned upon the ability of the Orthodoxes to secure the loan for $121,500. They were unable to obtain the loan. When it appeared that the purchase transaction would not close, Mr. Orthodox demanded the return of his $9,000. Mr. Lay did not return the money because he had spent it for his own personal business. Subsequent to the Orthodoxes initial demand for the return of their money, Mr. Lay's wife returned $1,000 to them in cash. No further repayments have been made.
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 the Administrative Complaint against Eugene Lay for lack of jurisdiction. DONE and RECOMMENDED this 29th day of February, 1984, in Tallahassee, Florida, MICHAEL PEARCE DODSON 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 29 day of February, 1984.
The Issue Whether petitioner's application for registration as a real estate salesman, pursuant to Chapter 475, Florida Statutes, should be approved.
Findings Of Fact Petitioner field applications for registration as a real estate salesman with respondent on October 10, 1977. Question 16 of the application reads as follows: 16. Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so? The petitioner answered "no" to Question 16. On December 8, 1977, respondent Florida Real Estate Commission issued an order denying the application based on its determination that the applicant had operated, attempted to operate or held himself out as a real estate broker or salesman within the one year period prior to filing his application. Petitioner thereafter requested a hearing in the matter. (Exhibit 1) Petitioner is the president of Marketing Institute Corporation of the Americas, Ltd. of San Jose, Costa Rica. (MICA) The firm operates as a real estate sales organization under the laws of Costa Rica, and is owned by Insco S.A., a Costa Rican holding company. (Testmony of McIntire, Figueredo) In 1975, petitioner became associated with William W. Landa, president of Costa del Sol, a condominium project in Miami, Florida. His function was to produce sales of condominium units as a result of sales efforts in Latin America. Part of the informal arrangement was the petitioner occupied a rental villa at the condominium project. His success in producing sales was limited and, as a result, the association was terminated sometime in 1976. In a letter to Lands, dated January 21, 1977, petitioner sought an accounting of expenses incurred in the operation and stated that he had produced three purchasers for which commissions were payable at the rate of "10% for foreign sales and 5% on domestic sales." Although no explanation of the terms "foreign sales" and "domestic sales" was presented, Landa testified at the hearing that petitioner did not sell in Florida for Costa del Sol. (Testimony of Landa, Figueredo, Exhibits 2-3) On December 1. 1976, the receiver in bankruptcy of the estates of Grandlich Development Corporation and Fisher Development Corporation, Fred Stanton Smith, president of the Keyes Company, Miami, Florida, Wrote petitioner and offered to pay his firm a 10% commission on "all sales closed by you of all Commodore Club Condominiums sold to your prospects." The commission was to be payable to MICA through its agent in the United States, Transcontinental Properties, Inc. of Miami, Florida, a corporate broker, The Commodore Club is a condominium project located at Key Biscayn, Florida. Hemisphere Equity Investors, Inc. was the registered broker for the sales of the condominiums and kept sales agents on the premises. Smith instructed Hemisphere to cooperate with foreign brokers in the sales of the properties. Petitioner proceeded under this arrangement to obtain and refer prospective foreign purchasers to Transcontinental who arranged to show the condominium units to the clients and consummate any resulting sales. Although petitioner had desk space in the Transcontinental office from September, 1976, to August, 1977, he was not supposed to show properties to clients or be involve in any real estate sales functions. In September, 1976, the president of Transcontinental placed a telephone call to respondent's legal office at Winter Park, Florida and ascertained that commissions could be paid to a foreign broker. However, he was informed by the Commission representative that it was a "gray" area and, although the foreign representative could serve as an interpreter for foreign clients during transactions in the United States, he could not perform any of the sales functions himself in Florida. Sales were made in this manner and commission checks were paid to petitioner's firm during the period January - September, 1977. (Testimony of Smith, McIntire, Figueredo, Exhibits 4, 5, 12, 13, 15) On July 1, 1976, Alexander Sandru purchased a condominium at the Commordore Club through the Keyes Company as broker. He was a friend of petitioner's from Caracas, Venezuela, and the latter had recommended his purchase of the condominium. However, petitioner was not in the United States at the time Sandru viewed the property and purchased it. Petitioner claimed a commission on the sale and it was paid to his firm through Transcontinental's predecessor company. A dispute arose over the payment of the commission because a saleswoman of Hemisphere Equity Investors, Inc. had shown the property to Sandru and assumed that she would earn the commission on any resulting sale. (Testimony of Lundberg, Nelson, Murragy, Exhibits 8-11) On several occasions in 1976 and 1977, petitioner accompanied Latin American individuals to the Commodore Club where a representative of Hemisphere showed them various condominium units. During this time, petitioner would inquire concerning maintenance charges and the like and transmit such information to the individuals in Spanish. Several of these persons were connected with petitioner's foreign firm and were not prospective purchasers. (Testimony of Lundberg, Figueredo, Exhibit 7) On January 30, 1977, Insco S.A. entered into a purchase agreement for a Commodore Club condominium unit. Petitioner signed the agreement on behalf of his firm MICA as broker for the transaction. However, the deal was never consummated. (Testimony of Figeredo, Exhibit 14)
Recommendation That Petitioner's application for registration as a real estate salesman under Chapter 475, Florida Statutes, be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1978. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Richard J. Mandell, Esquire 748 Seybold Building Miami, Florida 33132
