Findings Of Fact Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in Tallahassee, 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 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Respondent Jean P. Pittenger is a licensed general contractor holding license number CGC010323 issued by the Florida Construction Industry Licensing Board and is a licensed real estate broker-salesman, holding license number 0341210. Respondent Lan Thi Tran also known as Marie J Pittenger; is a licensed real estate salesman, holding license number SLO216661. Respondent LeRoy G. Bailey is a real estate broker in the State of Florida, holding license number BKO184114. On or about December 11, 1981, the Respondents Pittenger and Tran solicited and obtained Louis and Lamquet DeWinter and J. M. Demeulemeister as purchasers and joint venturers for the purchase of a certain piece of real property in Collier County, and for the construction of a house thereon. The Respondent Pittenger was the President and qualifying agent for his construction company known as "The Pittenger Company," d/b/a Real Estate Technology Group. Jean Pittenger entered into the joint venture agreement with Louie Philippe DeWinter and the others, as president of that entity. Pursuant to this agreement, DeWinter agreed to purchase a lot at Site 51, Block A, The Pelican Bay, Unit 1, a recorded subdivision in Collier County, Florida, and Respondent Jean Pittenger agreed to construct a first-class residence" on the property for purposes of investment and resale. Respondent Jean Pittenger never qualified his company or the joint venture entity under which he intended to undertake to construct the house with the Florida Construction Industry Licensing Board. In connection with the joint venture, the DeWinters gave to Marilyn Evanish of Coral Ridge-Collier Properties, Inc., a $17,000 earnest money deposit in accordance with the sales contract calling for DeWinter to purchase the property at a total of $170,000. The DeWinters' also paid $15,000 for architectural services and $13,151 for advance construction costs, attorney's fees and the like to Respondents' Pittenger and Tran. The DeWinters' made these disbursements from their own funds in trust and reliance upon the statements, actions and representations of Respondents' Pittenger and Tran to the effect that an architect would be retained to design the residence to be built, and that construction permits would be obtained and construction would `begin at a time certain. Thereafter, on or about April 14, 1982, Pittenger and Tran, unilaterally terminated the professional services of the architect and abandoned the joint venture agreement and the construction of the residence without explanation to their fellow joint venturers, the DeWinters, who were the owners of the lot upon which the residence was to be constructed. Respondent Pittenger never returned to complete construction. This unilateral action by the Respondents resulted in the DeWinters losing the use and benefit of approximately $28,151 which they had paid to those Respondents for architectural services and construction costs, which services were never performed. Louis DeWinter made demand on the Pittengers for return of the funds. Respondents' Pittenger and Tran, however, failed to justify the abandonment of construction of the dwelling, and failed and refused to account for the funds or what services, if any, had been purchased with the funds provided them by DeWinter for development of the property. Respondents' Pittenger and Tran utilized the $13,151 for their own use and benefits or in any event, for a use and benefit not intended by their joint venture partners and clients, the DeWinters. An indefinite portion of the $15,000 attributable to architectural services was apparently paid to the architect engaged to design the house; but in any event, Pittenger and Tran terminated the professional services of the architect before he completed his design and failed to account for or deliver the $13,151 entrusted to them by the DeWinters and intended for initiation of construction. The evidence does not clearly establish what became of the $15,000 advance for architectural services, but the DeWinters never received the benefit of any architectural services purchased. On or about March 24, 1982, Respondents' Jean P. Pittenger and Lan Thi Tran solicited and obtained $5,000 from the DeWinters supposedly for the purpose of purchasing real property in Bonita Springs, Florida, for investment and resale. The DeWinters' gave $5,000 to Respondents' Jean P. Pittenger and Lan Thi Tran in trust and reliance upon the acts, representations and statements of those Respondents which were made in order to induce the DeWinters' to deliver the $5,000 to them. Thereafter, those Respondents refused and neglected to account for or deliver to the Dewinters the $5,000 after demand and they never used that sum to purchase any property on behalf of the DeWinters, their clients. On or about April 22, 1982, Respondents' Pittenger and Tran solicited and obtained a sales contract on a restaurant known as "The Elephant Walk." The property was owned by Hospitality-Condo Inn, Inc. (seller) and was listed by the real estate brokerage known as Tri-Dynamics Realty of Florida, Inc., which was the brokerage of Respondent LeRoy Bailey, who is also the President of Hospitality-Condo Inn, Inc. The property was sold to Gerlanelie, Inc. by Lee Nichols Realty, Inc., the "selling broker," pursuant to that contract. Gerlanelie, Inc., was owned by the DeWinters and Respondent Tran who in effect were the purchasers of the property. Respondent Tran was the real estate salesperson who secured and negotiated the purchase from Mr. Bailey's corporation, at which time she was a salesman for Lee Nichols Realty, Inc., the selling broker. In executing the contract, the DeWinters acted upon the advice and representations of the Pittengers, who represented that the purchase price of $850,000 was a reasonable price and- knowing that the DeWinters were foreign nationals and uninitiated in the legal aspects of real estate transactions in Florida, represented to them that it was illegal under Florida law to counter- offer for less than that purchase price, which representation the DeWinters apparently believed. At the closing, the DeWinters executed documents assigning their beneficial interests back to the sellers Bailey and Hospitality Condo-Inns Inc., as collateral and security for the mortgage and promissory note obligations by which they were to pay the purchase price, to which obligations they both corporately and personally obligated themselves. Additionally, the Respondents' Pittenger and Tran agreed to share and participate in the mortgage payments, by which $728,000 of the purchase price was to be paid, as an inducement to get the Dewinters to enter into the sales contract and close the transaction. In connection with the purchase and renovation of the restaurant, the Respondents, Pittenger and Tran solicited and obtained $104,795 from the DeWinters between May 17, 1982 and July 10, 1982. Respondent Jean Pittenger, who was to do the construction work for the renovation, originally represented that the construction work would cost no more than $75,000. In any event, very little renovation work was completed by the Respondent Pittenger, and he and Respondent Tran abandoned the project, leaving $70,000 in unpaid, recorded mechanics' and materialmens' liens and approximately $30,000 in unpaid bills for food, liquor and other expenses, which were in large part incurred by Respondents' Pittenger, Tran and their invited guests and business associates. This $30,000 amount had to be paid by the DeWinters through a loan and they had to pay the $70,000 liens as well. As a result of this unforeseen, massive expense, the DeWinters were unable to meet their August, 1982, mortgage payment, although in the first full month of operation they had grossed approximately $60,000 with the restaurant operation and it appeared to be a very viable business. Additionally, Respondents' Pittenger and Tran failed to pay their share of the mortgage payments, notwithstanding their promise to the DeWinters that they would participate in making the mortgage payments as inducement to the DeWinters entering into the purchase transaction in the first place. In any event, Respondents' Pittenger and Tran abandoned the project and left the state and were last known to be in the Atlanta, Georgia area. They thus deprived the DeWinters of the vast majority of the $104,795 to have been used to pay for renovation on their restaurant, the $70,000 in addition to that required to discharge the liens and the $30,000 expended to pay various expenses incurred by those Respondents. The former owner and mortgagee, Respondent LeRoy G. Bailey advised the DeWinters during the initial month of operation of the restaurant after the sale, that Pittenger and Tran were not to be trusted, and that they should remove them from management of the restaurant and seek legal counsel, which the DeWinters did. Respondent Bailey additionally cooperated with the DeWinters, attempting to help them make the business a successful operation, but in the ends due to the perfidy of Pittenger and Tran, and the severe financial hardship it caused the DeWinters, the DeWinters were forced to assign all of their right, title and interest in the restaurant back to Respondent Bailey, at the point of the restaurant's mortgage becoming in default, as they had earlier agreed to do. Mr. Bailey employed the DeWinters in a management capacity for a short time after the assignment, but then discharged them and operated the restaurant himself for a time until he ultimately sold it. In any event, it was not established that Bailey entered into any conspiracy or scheme with Pittenger and Tran to attempt to defraud the DeWinters, or otherwise engage in any dishonest dealing by trick, scheme, device or otherwise at the expense of the DeWinters. The financial and legal problems which befell the DeWinters were due to their naive reliance on the representations, promises and statements made by Jean Pittenger and Lan Thi Tran, his wife. All their agreements with Bailey were entered into with counsel present and upon advice of counsel. The DeWinters knew at the closing of the transaction that they had executed an assignment, in the nature of a deed in lieu of foreclosure, back to Bailey, which would be exercised should the mortgage become in default.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of records the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the charges against the Respondent LeRoy G. Bailey be DISMISSED and it is further, RECOMMENDED that all licenses issued by the Construction Industry Licensing Board to Jean P. Pittenger be REVOKED and that he be fined the amount of $5,000. It is further RECOMMENDED that the licenses of Jean P. Pittenger and Lan Thi Tran, also known as Marie J. Pittenger, issued by the Florida Real Estate Commission be REVOKED, and that they each be fined in the amount of $6,000. DONE and ENTERED this 20th day of November, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 84-0311 AND 84-1112 Petitioner's Proposed Findings of Fact Accepted. 4. Accepted. Accepted. 5. Accepted. Accepted. 6. Accepted. Respondent's Proposed Findings of Fact Accepted. 5. Accepted. Accepted. 6. Accepted. Accepted. 7. Accepted. Accepted. 8. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Wesley A. Lauer, Esquire ACKERMAN, BAKST, GUNDLACH, LAUER & ZWICKEL, P.A. 515 North Flagler Drive Orlando, Florida 32802 Jean P. PITTENGER and Lan Thi Tran 235 Tallwood Terrace Roswell, Georgia 30075 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 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
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission enter its final order directing Capitol Rental and Realty, Inc. and Lawrence D. Van Ore cease and desist from using non-registrants as real estate salesmen and further from failing to use the full name of the registrant and the term "Broker" or "Realtor" within its classified advertisements. The Hearing Officer further recommends that the registration of the registrant be suspended until the corporate broker and associate broker Lawrence D. Van Ore have complied with said order of the Commission. DONE and ORDERED this 26th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Gough, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Don Scarlet, Esquire 801 Magnolia - Suite 317 Orlando, Florida 32803
The Issue The issues presented in This case are whether the Respondents committed the acts alleged in the Administrative Complaint and whether such acts constitute a violation of the statutes. Petitioner submitted post hearing findings of fact in the form of a proposed recommended order To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Frank R. Jansen, is a broker salesman holding license number 0317199. The Respondent, Lillian LaCrampe, now Soave, is a real estate salesperson holding license number 0137930. In June 1980, Jansen held an individual broker's license in the State of Florida. In late summer of that year, he entered into an agreement with Flora Harwood, a licensed broker in the State of Florida and owner of Select I Realty. Under this agreement, Jansen and Harwood would form a corporation and participate in a brokerage company under the name Select I Realty, in which Jansen would open and operate a branch office of Select I Realty. The exact details of the corporation and the division of shares were not worked out between the parties; however, Harwood undertook to have a corporation formed the name Jansen and Harwood, Inc., and two attempts were; made to register Jansen as a broker with Jansen and Harwood, Inc., doing business as Select I Realty. These applications were rejected by the Florida Real Estate Commission for various reasons, to include the requirement that a corporation operate only in the corporate name and the failure of the applicants to submit corporate papers. The incorporation and application to the Commission were handled by Flora Harwood's attorney. The last denial of the application was on October 22, 1980. During the period the applications were being filed with the Commission, Harwood became disenchanted with the idea of the corporation because of her perception that Jansen was not cooperating with her. Therefore, after the second application was denied, Harwood did not take action to timely file a third application. Although Jansen was aware of the denial of the application, the evidence does not show that he was aware that Harwood delayed the third application. By the end of 1980, Jansen and Harwood had both independently abrogated their agreement, and shortly thereafter Jansen left the business totally. Until he left, Jansen continued to actively manage the branch office of Select I Realty, which he had established and organized and from which he conducted his real estate business as a broker for Jansen and Harwood, Inc. The policy of the Florida Real Estate Commission with regard to applications is that the applicant may operate if a license application is not returned. If the application is returned for correction and corrected and resubmitted timely, the applicant may continue to operate. If the application is not returned in a timely fashion, the applicant may not work. The failure of Jansen and Harwood to eventually incorporate, followed by the severance of their business relationship, intensified the conflict between them, out of which several of the allegations of the Administrative Complaint arose. On September 5, 1980, the Respondent LaCrampe contracted to buy for herself Lot 3 of Ozona Shores from Preston and Grace King. On January 5, 1981, LaCrampe closed the transaction with the Kings. At that closing, a check for $825 in commissions to Select I Realty was disbursed by the closing agent to the Respondent Jansen. Jansen deposited said check to his personal account. Flora Harwood asserted a claim to a share of the commission on the purchase of the property by LaCrampe. When Harwood discovered that this sale had occurred, she checked with the closing agent and found that a commission check had been paid to Jansen. She further discovered that Jansen had deposited this check to his personal account, and because the check was made out to Select I Realty Harwood had the bank take action to collect the $825 and pay it to her, which the bank did. Harwood's claim to the $825 was based upon an office policy applicable to employees which required that commissions on real estate purchases for investment purposes by employees of Select I Realty be shared with the office. However, this contract closed on January 5, 1981, after the relationship between Jansen and LaCrampe had been severed with Harwood. The competing claims between Jansen and Harwood to the $825 in commission are part of the severance of the business relationship between two persons operating as co-brokers. Testimony was received that in the operation of the branch office Jansen had authority to receive checks, deposit checks, and write checks. On or about December 10, 1980, Jansen participated in the rental of a condominium by Eugene Donahue from Glen and Mary Mitchell. The rental contract incorporated an option to purchase. Said rental contract required that Donahue pay $400 per month, $50 of which was a maintenance fee. Jansen received the first check from Donahue in the amount of $400, negotiated the check, and received a bank check in the amount of $350 payable to Glenn Mitchell and $50 in cash. It is asserted in the Administrative Complaint that Jansen received the $50 in cash as a commission payment to which he was not entitled. However, Respondent's Exhibit numbered 4 reflects that Glenn and Mary Mitchell here in arrears on their maintenance payment in the amount of $49.75, and the policy of Coachman Creek Condominium Association was not to grant any approval of lease or sales contracts until all maintenance payments were up to date. Respondent's Exhibit numbered 4 shows that approval of the subject rental contract was granted when Jansen produced the late payment. Several allegations of the Administrative Complaint relate to real estate transactions in which the Respondents Jansen and LaCrampe were involved with Heinz Lehman and allege fraud and misrepresentation arising from failure of Jansen to identify LaCrampe as his mother to Lehman. The first occasion on which Lehman met the Respondents was when Lehman visited a store in a strip shopping center which Jansen was selling as a broker. Lehman testified that Jansen identified LaCrampe at that time as a real estate associate and his "girl Friday." Lehman's testimony revealed that he knew LaCrampe was a real estate salesperson and an associate of Jansen but did not know that LaCrampe was Jansen's mother until after their series of transactions had occurred. Lehman did not buy the strip store but later purchased a condominium through Jansen and then sold it through Jansen after fixing it up. In November 1980, Lehman contracted to purchase Lot 3 of Ozona Shores (see paragraph 8 above) from LaCrampe. On January 5, 1981, after LaCrampe had purchased the property, she in turn sold the property to Lehman on the same day. In November 1980, prior to entering into the contract for the purchase of Lot 3, Lehman had visited Ozona Shores and had looked at several pieces of property. Thereafter, Jansen presented him with the opportunity to purchase Lot The evidence is clear that Jansen never identified Lot 3 on the, ground or by plat to Lehman. Lehman purchased the property without a survey and without reference to any plat. After he had purchased the property, Lehman found that Lot 3 was not tie lot which he though it was. At a later date, after being unable to finance a house on this property for speculative purposes, Lehman let the lot, 90, back to LaCrampe. On or about January 22, 1981, Jansen visited Florence Smith, who was interested in selling a house which she owned at 1550 Laura Street, Clearwater, Florida. Without obtaining a listing contract, Jansen thereafter advised Smith that he had a potential purchaser. On January 29, 1981, Smith contracted to sell her house to LaCrampe for nothing down and a $37,000 mortgage payable to Smith. Thereafter, Smith determined that she would prefer a balloon note, and LaCrampe agreed to a balloon note if the price were reduced to $36,000, to which Smith agreed. This slightly reduced the monthly payments to Smith. On February 12, 1981, LaCrampe contracted to sell this property to Lehman for $5,000 down, assumption of the second mortgage to Smith, and payment of a $1,400 commission by Lehman to Jansen. LaCrampe obtained modification of her contract with Smith to permit LaCrampe to assign her contract to purchase. In this transaction, Jansen did not identify LaCrampe as his mother or as a real estate salesperson and his associate. Jansen did not explain to Lehman that the money which Lehman paid down was to be paid to LaCrampe. On or about March 10, 1982, Leo Huddleston, an investigator for the Department of Professional Regulation, visited Jansen's office at the address at which Jansen was registered. Huddleston did not find the required sign at the office identifying it as that of Frank Jansen, a real estate broker. At that time, Jansen had registered as broker for Suncoast Investments and Realty, Inc., and was renting office space with telephone-answering and secretarial services in an office suite complex. Although the building directory listed the suite as the office of Jansen as a real estate broker, the office suite did not have Jansen's real estate brokerage sign. When this matter was brought to Jansen's attention, an appropriate sign was provided. In November 1980, the Respondent LaCrampe was licensed as a real estate salesperson with Jansen and Harwood, Inc.
Recommendation Having Found the Respondent, Frank R. Jansen, in technical violation of Rule 2IV-10.24, Florida Administrative Code, an thereby Section 475.25(1)(e), Florida Statutes, it is recommended that Jansen receive a cautionary letter. Having found the Respondents, Frank R. Jansen and Lillian LaCrampe, now Soave, guilty of one violation each of Section 475.25(1)(b), Florida Statutes, it is recommended that their licenses be suspended for a period of one year. DONE and RECOMMENDED this 16th day of August, 1983, in Tallahassee Leon County, 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 16th day of August, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Frank R. Jansen 108 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Ms. Lillian LaCrampe Soave 114 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION Petitioner, vs. CASE NO. 0013099 0017680 FRANK R. JANSEN and 0021257 LILLIAN LaCRAMPE DOAH NO. 82-2891 Respondent. /
Findings Of Fact Wallace Adams was a registered real estate salesman with Continental Marketing Services from November, 1975, until May, 1976. The depositions of Robert Cline, Donald Brawdy and Jean Sue Brawdy were received into the record without objection. The depositions of the Brawdys reflect that they received a telephone call from an individual identifying himself as Wallace or Wally Adams. The deposition of Robert Cline reflects that he received a call from an individual whom Cline identified only as Mr. Adams. The deponents indicated that the caller stated he represented Continental Marketing Services, a real estate sales organization. The caller represented that Continental Marketing Services desired to list property which they owned in Florida and Arizona for sale. The caller represented that their property would be advertised nationally and internationally, and that foreign buyers were interested in purchasing such property. Cline indicated that he was called in approximately November of 1975, and the Brawdys indicated that they were first contacted in February of 1976. The caller suggested the potential sales prices of the property to be listed, and the deponents eventually entered into a listing contract with Continental Marketing Services, paying advance listing fees ranging from $350 to $1,125. None of the deponents indicated that they ever met the Respondent, Wallace E. Adams.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Wallace E. Adams as a registered real estate salesman. DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Wallace E. Adams c/o Dory Auerbach 456 NE 29th Street Miami, Florida 33137
Findings Of Fact The Defendant was at all material times registered with tie Florida Real Estate Commission as a real estate salesman in the employ of Razook Real Estate, Inc. Razook Real Estates Inc. is a duly registered real estate broker. During 1973, the Defendant negotiated the sale of a business known as Carvel Ice Cream Supermarket number 1034, located in Riviera Beach, Florida, between Philip Caruso and Dorothea Caruso, as sellers, and Beverly Barratt, as purchaser. The Carusos and Ms. Barratt entered into a Purchase and Sale Agreement on May 14, 1973. (See: Defendant's Composite Exhibit 1). The agreement included assignment from the sellers to the purchaser of a lease covering the property on which the business was located. The lease assignment was incidental to the sale of the business, and was not a prime factor in the transaction. The Defendant negotiated the sale as a business broker employed by Rabern Business Associates, Inc., and not as a real estate salesman employed by Razook Real Estate, Inc. The Defendant was not registered with the Florida Real Estate Commission as a real estate salesman for Rabern Business Associates, Inc. When she signed the contract on May 14, 1973, Ms. Barratt delivered to the Defendant a $4,060 check made out to Rabern Business' Associates, Inc. which amount was to serve as a deposit. The contract provided that the sale would be subject to the approval of Carvel Corporation the franchisor of the business. On August 15, 1973, the transaction between the Carusos and Ms. Barratt was closed, except that the approval of Carvel Corporation had not yet been received. It was the clear understanding of the parties that the approval of Carvel Corporation was essential and that the closing was conditional upon that approval. The sellers were represented at the closing by Attorney Walter Colbath. Ms. Barratt was represented at the closing by Attorney Gustave Broberg. Shortly after the closing, Ms. Barratt went to New York to participate in a training program offered by Carvel Corporation for franchisees. Carvel Corporation would not approve the transaction unless the new franchisee completed this program. Upon her arrival in New York, Ms. Barratt was advised by representatives of Carvel Corporation that the Carusos owed Carvel Corporation more than $8,000, which amount was not reflected in the agreement between the Carusos and Ms. Barratt nor in the closing statement dated August 15, 1973. This is the first occasion upon which Ms. Barratt was apprised of this indebtedness on the part of the Carusos to Carvel Corporation. Carvel Corporation reluctantly permitted Ms. Barratt to participate in their training program with the hope that a resolution of the indebtedness could be made. Carvel Corporation would not approve the agreement between the Carusos and Ms. Barratt unless an arrangement was made respecting the indebtedness. When Ms. Barratt returned to Florida, negotiations respecting the $8,000 commenced, and although at one juncture the parties were close to an agreement, no final resolution was reached. The transaction was therefore not concluded. At no time did Carvel Corporation approve the sale as set out in the contract of May 14, 1973, or in the closing statement dated August 15, 1973. On October 23, 1973, Mr. Broberg, representing Ms. Barratt, wrote to Mr. Colbath, the attorney for the Carusos, stating that the transaction could not be consumated, and demanding that monies held by Attorney Colbath be returned to Ms. Barratt. He further stated in the letter: "It would be appreciated if you would forthwith inform Mr. Ralph J. DePaola of Rabern Business Associates, Inc. that the sale has terminated and request that he return the $4,000, which he is holding, to Mrs. Barratt." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). On December 19, 1973, Mr. Colbath wrote to Mr. Broberg concerning monies that had been held by him, and with respect to the monies held by Mr. DePaola stated as follows: "The balance of $4,000 that was originally deposited with Mr. DePaola has, as you know, been retained by him as his commission. I am by copy of this letter informing Mr. DePaola what has transpired since we last talked and ask that you contact him directly." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). No further demands were made by Ms. Barratt, or on her behalf, to the Defendant for the return of the $4,000. The Defendant did not have any agreement with Ms. Barratt that Ms. Barratt would be responsible to pay any commission to the Defendant. Four thousand dollars is listed on the August 15, 1973 closing statement as a sellers' expense. Mr. DePaola testified at the hearing that he considered the matter closed as of August 15, 1973; however, Mr. DePaola did know, or should have known, that approval by Carvel Corporation had not been obtained, and was necessary. Mr. DePaola has retained the $4,000, and it has not otherwise been returned to Ms. Barratt. The Defendant was not aware of the additional $8,000 obligation which the sellers owed Carvel Corporation on May 14, 1973, when the Purchase and Sale Agreement was signed, or on August 15, 1973, when the transaction was preliminarily closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Count I of the Information against Ralph J. DePaola be dismissed. That Count II of the Information against Ralph J. DePaola be dismissed. That Count III of the Information against Ralph J. DePaola be dismissed. RECOMMENDED this 24th day of February, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact In the fall of 1973, Mr. and Mrs. Delmar D. Carter purchased the Buccaneer Motel and Woodside Apartments [the motel] from C.E.K., Inc., whom respondents represented in the sale. Respondents agreed to accept less from C.E.K., Inc., as their commission on the sale, that they might have otherwise, because the Carters agreed to give respondents the exclusive right to resell the motel for a period of five years. Two years after they purchased the motel, the Carters asked O.B. Linkous to try to sell the motel, but the Carters sell held the motel when the resale agreement expired in late 1978. One of the obligations assumed by the Carters in exchange for the motel was secured by a mortgage that C.E.K., Inc., had executed in favor of O.B. Linkous Realty, Inc., on December 14, 1972. Petitioner's Exhibit No. 2. This assumed obligation required the Carters to make certain monthly payments to the corporate respondent including a payment of $862.19 on January 1, 1979. Under the mortgage agreement, the entire principal (originally $88,247.93) would become due if a "default continue for a space of 30 days." Petitioner's Exhibit No. 2. On January 25, 1979, Mr. Carter delivered to Mr. Linkous a check in the amount of $862.19, Petitioner's Exhibit No. 1, as payment of the amount due on January 1, 1979. When he handed the check to respondent Linkous, Mr. Carter told him that the funds in the account on which the check was drawn were insufficient for the drawee to pay the check, but that he would deposit sufficient funds on the following day. Respondent Linkous answered that he saw no problem since he intended to deposit the check in his own account in another bank and assumed it would be at least a day before the check was presented to the drawee. On the following day, Mr. Carter deposited $865.96 in the account on which the check was drawn. Petitioner's Exhibit No. 3. On January 31, 1979, the balance in the account was $1,000.32. Petitioner's Exhibit No. 3. Instead of depositing the check, respondent Linkous took the check, on the same day he received it, to the Flagship First National Bank of Ormond Beach, on which it was drawn, and persuaded a teller there to stamp it so as to indicate that it had been dishonored because sufficient funds were not on deposit. On February 7, 1979, a mortgage foreclosure complaint was filed against the Carters and C.E.K., Inc., (as holder of a junior mortgage), in which respondents' attorney alleged that the Carters had "defaulted under the note and mortgage by failing to pay the payment due January 1, 1979, and all subsequent payments." Petitioner's Exhibit No. 2. The Carters retained counsel who filed an answer and counterclaim in which it was alleged, inter alia, that Linkous "deliberately with premeditated design, deceived and tricked [the Carters]." Petitioner's Exhibit No. 2. After these pleadings had been filed, the Carters agreed to respondents' counsel's suggestion that they grant the corporate respondent the exclusive right to sell the motel for another five-year period in exchange for an end to the litigation, and executed an agreement to that effect. Petitioner's Exhibit No. 6. The parties stipulated that both respondents hold real estate licenses issued by petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondents' licenses for a period of five years. DONE AND ENTERED this 10th day of June, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of June, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire 130 North Monroe Street Tallahassee, Florida 32301 Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725
