Findings Of Fact The Respondent, Nelye Bunch, is a licensed real estate broker, having been issued license number 0315615. The Respondent, AA Real Estate, Inc., of Kissimmee, is a licensed corporate real estate broker, having been issued license number 0214153. In December of 1980, Grace Makuch, a licensed real estate salesperson, entered into an employment agreement with the Respondents, whereby Grace Makuch became employed as a real estate salesperson in the brokerage office of the Respondents. Pursuant to this employment, Grace Makuch and the Respondents entered into an oral agreement in which Grace Makuch would be compensated by receiving 60 percent of the selling broker's commission on every real estate sale she brought into the office. On or about March 6, 1981, Grace Makuch negotiated a contract for the sale of real property on Nova Road in Osceola County, Florida, between Earl Croft and his wife, as sellers, and Larry Henninger, as buyer, for $96,200. This transaction closed in April of 1981. The Respondents received the real estate commission due, in the amount of $4,810, and paid Grace Makuch $1,154.40. Under the employment agreement, Grace Makuch should have been paid $2,886. Demand for the balance due of $1,731.60 has been made by Grace Makuch and her attorney, but nothing further has been paid by the Respondents. In February of 1981, Grace Makuch negotiated a contract for the sale of real property on Donegan Avenue in Kissimmee, Florida, between Michael F. Sweeney, Trustee, as seller, and Dominick Tattoli and his wife, as buyers, for $115,000. This transaction closed in May of 1981. The Respondents received the real estate commission due, in the amount of $5,000 and tendered to Grace Makuch a check for $250. Under the employment agreement, Grace Makuch should have been paid $3,000; thus, she refused to accept the check for $250. Demand for the full amount of her share of the commission on this transaction in the amount of $3,000 has been made by Grace Makuch and her attorney, but nothing has been paid by the Respondents.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 0315615 held by Nelye Bunch, be revoked. It is further RECOMMENDED that license number 0214153 held by AA Real Estate, Inc., of Kissimmee, be revoked. THIS RECOMMENDED ORDER entered this 8 day of October, 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 8 day of October, 1982. COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741
The Issue Whether the Respondent's real estate broker license should be disciplined based upon the alleged violations of Sections 475.25(1)(b),(c),(d)1. and (e), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Bernard L. Covington is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0178235 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker at 4383 U.S. Hwy. 1, Edgewater, Florida 34141. On September 6, 1990, Terra Mar Village's prospectus to sell proprietary leases in mobile home lots was approved by the Florida Department of Business Regulation. Included in said prospectus is a form Contract for Purchase and Installation of a Cooperative Unit and Manufactured Home at Terra Mar Village for use when lot was to be sold in said Village. On July 25, 1992, Respondent, through the actions of his agent, Alvin D. Booten, solicited and obtained a purchase agreement between sellers, Terra Mar Village Association, and buyers, Jack W. Miller and Jacqueline Miller for Lot 132 in Terra Mar Village. Respondent's agent represent that the buyers were purchasing a mobile home lot in fee simple at the Village. In actuality, they were only purchasing a proprietary lease in the lot. Al Booten, an unlicensed agent, was employed by Terra Mar Village, LTD. as a sales representative. In the course of his employment, he promised the Millers a deed to the property. They relied on his representations, and they put down their deposit on the lot. Booten never advised the Millers they were buying into a cooperative association. Respondent failed to use the approved Contract for Purchase agreement form contained in the prospectus approved in September 1990 by the Department in its dealings with the Millers. The Respondent failed to disclose prior to the closing that the buyers were purchasing only a proprietary lease in the lot. On January 14, 1993, the transaction closed with Respondent acting on behalf of Terra Mar Village, LTD. and Terra Mar Village Association, Inc. After closing, the buyers received the Prospectus and title policy. Upon examining their title insurance policy, they learned that they had purchased a proprietary lease, not a fee simple interest in the lot as has been represented to them by Booten. The mobile home park has gone into foreclosure and the ownership interest of the Millers, among others, in their lots have been put in jeopardy. The Millers had relied on the representations of the Respondent as a licensed broker in their decision to purchase a lot in Terra Mar Village. Respondent committed a breach of trust by failing to disclose that the lot being sold was by proprietary lease. On April 1 and May 10, 1993, buyer Reginald B. Randolph gave Respondent's unlicensed agent, Al Booten, two checks totalling $45,000 for the purchase of a mobile home and lot at Terra Mar Village. On May 10, 1993, Respondent closed the transaction without the knowledge or consent of the buyer. However, Respondent failed to have the title to the property recorded. Randolph was misled by the Respondent's agent Booten, who told Randolph and his wife that they could buy a lot on a canal in the Village. When the Randolphs discovered they had been deceived and demanded their money back, the Respondent refused to refund it. They also discovered the money was not being held in escrow. The Randolphs believed Al Booten was a licensed real estate salesperson because he claimed he was selling the lot. There were many problems associated with the park. The source of potable water at the park was not approved and a moratorium was placed on it by Volusia County. Later, Terra Mar Village, LTD. filed for bankruptcy, but it was denied. The Respondent seeks to blame the "recession" and the water problems for the difficulties he encountered with the Millers and Randolphs. However, Respondent collected their downpayments and misappropriated the funds after allowing them to be misled by his agent.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1 and (e), Florida Statutes, as charged in the Administrative Complaint. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of two (2) years and that he pay an administrative fine of $1,000. DONE and ENTERED this 10th day of August, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-14 Respondent's proposals. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bernard L. Covington, pro se 1034 Old South Lane Apopka, Florida 32702 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Florida Department of Business and Professional Regulation Division of Real Estate Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly. When LaReau leased the subject premises from Heide he entered a twelve (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2). Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D). Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: 1. That the Administrative Complaint filed herein be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.
Findings Of Fact At all times relevant hereto, respondent, George N. Sullivan, held real-estate license number 0128470 issued by petitioner, Department of Professional Regulation, Florida Real Estate Commission. His current address is 22 East Spruce Street, Orlando, Florida. At one time, respondent also held a registered general contractor's license and operated a construction firm under the name of George N. Sullivan, Inc. in Vero Beach, Florida. On or about December 7, 1979, George N. Sullivan, Inc. and Vero Fore, Incorporated entered into a construction agreement wherein Sullivan agreed to construct a residence at Lot 27, Unit III, the Moorings of Vero Beach, in Indian River County for a price of $155,628. The difference between this price and the price of $171,688 alleged in the administrative complaint is due to "extras" agreed upon by the parties to be added to the project. Sullivan began construction on the residence but abandoned the project before it was completed. When he left the job he had been paid all sums due under the agreement except one final $18,000 draw. Vero Fore later discovered that approximately $66,000 in unpaid bills were left by Sullivan. It also learned that Sullivan had obtained releases from three material suppliers by issuing worthless checks in the amounts of $5,849, $2,883.48, $1,913.14, $4,988.92 and $3,847.23. To date, Vero Fore has not been repaid by Sullivan. Sullivan was later adjudged guilty of passing worthless checks by the circuit court of Indian River County on July 8, 1981 and was sentenced to eighteen months probation and required to make restitution to the subcontractors. The official records of Indian River County reflect that Sullivan was found to be in violation of probation on March 23, 1983 for failure to make restitution. It is unknown what, if any, penalties were imposed upon him for this violation, or if restitution has ever been made. On or about September 5, 1980, Sullivan entered into a contract with Mr. and Mrs. James L. Cain to remodel their residence located at 2075 DeLeon Avenue, Vero Beach, Florida. The agreed upon price was $46,900. The Cains paid Sullivan $46890, or 10 percent, as a downpayment for the work on September 8, 1980. Sullivan sent three men to the Cains' house a few days later to build a platform. No other work was ever done. Sullivan did not pay the three workmen and the Cains were forced to pay them $788 to obtain a release of liens. To date, they have never been reimbursed by respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent George N. Sullivan be found guilty as charged in Counts I, III, and IV and that Count II be DISMISSED. It is further RECOMMENDED that respondent's real estate sales license be suspended for a period of ten years with the condition that said license be reinstated after a period of three years if respondent can demonstrate that restitution to the three material suppliers, Vero Fore, Inc. and the Cains has been made. DONE and RECOMMENDED this 10th day of December, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 December, 1983. COPIES FURNISHED: Gary Lee Printy, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. George N. Sullivan 22 East Spruce Street Orlando, Florida 32802
Findings Of Fact At all times pertinent to the Administrative Complaint, the Respondent Kenneth Kasha was licensed by the Petitioner as a registered real estate broker. During that time period he was licensed to trade as Florida Landowners Service Bureau. At present he is the holder of certificate number 0046189, in the position of registered real estate broker. The particulars of his license may be found in Petitioner's Exhibit 4, admitted into evidence. In the years 1975 and 1976, one of the enterprises that Kenneth Kasha was involved in was the solicitation of real estate listings from out-of-state land owners who owned land in the State of Florida. This solicitation led to an agreement with some of those owners to list their property through various publications which Kasha contracted for, with the expectation that his company would make a bona fide effort to sell the property. The general description of the arrangement between Kasha, operating as Florida Landowners Services Bureau, and his owner/clients, was to have the owner pay a fee of $250 to $300 to have their property listed by Kenneth Kasha, trading as Florida Landowners Services Bureau. Kenneth Kasha solicited the owners by phone personally and through real estate salesmen who were involved in the solicitation. Kenneth Kasha's statement of his participation may be found in the deposition which is part of Petitioner's Composite Exhibit 8, the deposition being admitted into evidence. This deposition is a part of the record of the proceedings of the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums v. Kenneth Kasha d/b/a Florida Landowners Service Bureau. The deposition was taken on March 26, 1976. In that deposition Kasha was asked if he solicited for the type of listing which is the subject of this case and if he made this solicitation via the telephone. At page 39 of that deposition he states that he did and indicates that the principal place of business of Florida Landowners Service Bureau at the time of the deposition was at 561 NE 79th Street and was the place solicitations were made from. A more complete description of the techniques involved in a solicitation is given by the witness, Alfred Landin. Alfred Landin testified in the proceedings by the Petitioner against Kenneth Kasha t/a Florida Landowners Service Bureau. Mr. Landin correctly stated that he worked for the General American Realty Corporation as a real estate salesman from January, 1975 through February, 1976. His testimony established that he began to make the form of solicitation in behalf of the Florida Landowners Service Bureau in August, 1975. His participation was by agreement between the General American Realty Corporation and the Florida Landowners Service Bureau to have certain salesmen employed by General American Realty Corporation make phone solicitations for Florida Landowners Service Bureau. Those employees of General American Realty Corporation were then paid by their corporation, who had been paid by Florida Landowners Service Bureau under an agreement between that business and the General American Realty Corporation. Alfred Landin took approximately 75 to 100 listings for the Florida Landowners Service Bureau for which he charged the owner $250 to $300 for each listing. He in turn received 30 percent to 40 percent of the listing amount as his payment. He did not receive real estate commissions following any sale of the property which was listed with Florida Landowners Service Bureau. In fact, no commissions have been received, because no property has been sold under the listing agreements, at least as of the date of the Kasha deposition of March 26, 1976. In that deposition he states that none of the property listed by Florida Landowners Service Bureau had been sold. Moreover, Alfred Landin's testimony established that the salesmen who were the contact people for the solicitation for the listings were paid on the basis of obtaining the listings, in opposition to being paid commissions for selling' the property. When Landin would call a prospective owner to solicit the listing, which will now be referred to as "advance fee" listings, he did it based upon a list of prospective clients made available in the office of General American Realty Corporation. He would tell the potential "advance fee" client that the property that they listed with the Florida Landowners Service Bureau would be advertised within and without the United States. He did not indicate which form of media advertising would be utilized. Landin was unaware of the steps which Florida Landowners Service Bureau would specifically take to bring about the sale of the listed properties, because the arrangement with General American Realty Corporation was not to consummate the sale of the property through General American Realty Corporation's salesman. Landin did tell the owners that Florida Landowners Service Bureau would be responsible for advertising the properties for the purpose of sale. Furthermore, the indication was that a bona fide effort would be made to sell the property. The contact which Landin had with the out-of-state owners, in terms of the dialogue, was not by any particular script. It would be designed according to the nature of the property of the person being solicited. In the course of the conversation the property owner would submit his price and that information and other information would be forwarded to Florida Landowners Service Bureau. At all times when a prospective customer was called Landin introduced himself by name and his connection with Florida Landowners Service Bureau. The usual technique was to make an original contact call and then a follow-up call. Although a second individual working for Florida Landowners Service Bureau normally made the follow-up, call, Landin at times would make those calls. On those occasions, between the time of the initial call and the follow-up call, certain materials would be mailed to the prospective purchaser of a listing agreement. Landin identified three forms which are numbered 1, 2, and 3 and are part of the Respondent's Exhibit No. 11 admitted into evidence. They are the mailouts. (The Respondent's Exhibit No. 11 admitted into evidence is constituted of certain information pertaining to the listing of the Florida Landowners Service Bureau's "advance fee" property through the media National Multiple Listing, Inc.) In a follow-up call there would be discussion about the meaning of the listing and brokerage agreement which is number 3 in the group of documents. Landin established that in these follow-up conversations the purpose of the listing fee was brought out and the owner was told that the listing fee would be used to compensate for the costs involved of the listing; for example advertising. The three documents in Respondent's Exhibit No. 11 are the crux of the contractual agreement between Florida Landowners Service Bureau, the company of Kenneth Kasha, and his "advance fee" listing clients. The three documents in Respondent's Exhibit No. 11 are the same in their form as those documents appended to the Kenneth Kasha deposition of March 26, 1976, which has been mentioned before. In that deposition Kasha admits that those three documents were mailed out to the "advance fee" listing clients. The three documents are available for review either in Respondent's Exhibit No. 11 or the attachments to the admitted portion of Petitioner's Exhibit No. 8, which is the Kasha deposition. The significant portions of those exhibits, in terms of the factual allegations against the Respondent, begin with Paragraph 3 of the document number 1 which states, "your property legals are checked thoroughly." In his deposition of March 26, 1976 Kasha indicated that what actually occurred was that Florida Landowners Service Bureau would receive a copy of the client's deed or agreement for deed and verify this with the developer to see if it indicates on the developer's books or records that the individual actually owned a specific piece of property in question. Kasha stated that his company did not check with the title company, but did check the tax records of various counties to see whether or not the individuals owned the particular piece of property set forth in their deeds. Continuing the examination of document 1, the next sentence in Paragraph 3 states, "an ad is constructed for your property(s) and published in our brochures and catalog which is distributed to several thousand brokers and investors NATIONALLY AND INTERNATIONALLY." The advertising that was done by Kenneth Kasha t/a Florida Landowners Service Bureau, which was established in the course of the hearing is constituted of several media approaches. One of those approaches was found in Respondent's Exhibit No. 2 admitted into evidence which is a copy of a magazine February, 1976, the magazine being a publication of the International Federation of Real Estate Brokers which has membership in 39 countries. It can be seen, the advertisement is an ad which allows the purchase of a catalog for the price of $4.00 or free to the members of the International Real Estate Federation. A copy of this form of catalog is the Petitioner's Exhibit No. 12 admitted into evidence. This catalog lists multiple properties by the owner's name, the owner's asking price, and a rough description of the location in terms of the municipality if any, county, and state, subdivision or development if applicable and a rough description of the size of the parcel. The catalog would not allow the prospective purchaser to specifically locate the property. At best it would allow the location of the development or sub-division. A second form of advertising which the Respondent utilized in the time period in question was listing with the National Multiple Listing, Inc. Those listings were also multiple listings on a single page of the type previously discussed in describing the catalog. Access to those listings was based upon Kasha's purchase of circulation and it reached as many as 2,500 plus distributees in various areas of the United States. (The number assigned to the individual properties advertised by National Multiple Listing, Inc. corresponds to some of the invoices found in the Petitioner's Composite Exhibit No. 11, which invoices were paid by Kenneth Kasha to have the listings published. There is a further correlation between those numbers and the numbers affixed to the certificates issued by National Multiple Listing, Inc. to the Respondent verifying the circulation of the listings. Those certificates are found as Respondent's Exhibit No. 12 admitted into evidence.) A compilation of those payments from Kenneth Kasha, as the owner of Florida Landowners Service Bureau, to the National Multiple Listing, Inc. for the period of June, 1975 through June, 1976 may be found as Respondent's Exhibit No. 7 admitted into evidence. The total cost for advertising in that time period was $3,583.82. Kasha also advertised his catalog in the Miami Herald, the Chicago Tribune and one German paper, entitled, Blick. This advertising was in the period of late 1975 and early 1976. The advertising is established through the Respondent's Exhibit No. 12A and a portion of Petitioner's Exhibit No. 8 which is the deposition and attachments of Kenneth Kasha taken March 26, 1976. 14 The fourth paragraph of document 1 states in its initial sentence. "In order for us to successfully merchandize and receive the highest offer for your property(s) considerable expense is involved because a great deal of time is put forth on your behalf and many of the property(s) are being offered for sale sight unseen. Therefore, we must constantly furnish prospective purchasers with factual updated information re: your listing(s). Your fee helps to defray expenses of estimating value, merchandizing, advertising, brochuring and cataloging this information here and abroad." The extent of advertising and brochuring has previously been discussed. The estimate of value is based upon the individual's price and the Florida Landowners Service Bureau does not concern itself with zoning and development in trying to get the price established. This conclusion is premised on Mr. Kasha's testimony of March 26, 1976 before the Division of Florida Land Sales and Condominiums. Therefore, by Mr. Kasha's opinion there was no expense to be defrayed in estimating value. The only other merchandizing that was done other than that discussed in the advertising techniques may be found in the description by Robert Wandler who worked for Kenneth Kasha and was involved with Florida Landowners Service Bureau as a real estate salesman. The period of his employment is not established through Mr. Wandler's testimony, but it appears to be within the time frame of the Administrative Complaint and the other testimony given. Mr. Wandler stated that he tried to sell the property listed through the "advance fee" process by contacting hotels and hotel clerks who had connection with Columbian businessmen. This area of contact was in South Florida. His reasons for contacting the Columbians was due to the fact that he speaks Spanish fluently. He occasionally showed the brochures to the persons contacted, but none of those persons were interested in purchasing the property. He specifically made reference to Petitioner's Exhibit No. 12 as being the type of brochure or catalog that he showed. He also testified that on several occasions Arabian and Lebanese people in the South Florida area were contacted and seminars were held to discuss the catalog. The Arabian and Lebanese business persons did not purchase any property and did not negotiate with any of the owners for the right to purchase the property. Document No. 2, which is a document entitled, Important Facts, is found in Respondent's Exhibit No. 11. In that document is a question which asks "(Q) Will you help me establish a correct selling price for my property? (A) Yes. While we do not appraise property, Florida Landowners Service Bureau will analyze your property comparing your property to adjacent property, to arrive at a price based on recent sales of neighboring property. The price must meet with your approval. From the testimony in Kenneth Kasha's appearance before the Division of Florida Land Sales and Condominiums it is clear that Florida Landowners Service Bureau did not analyze the property by comparing the property to adjacent property to arrive at a price. They merely relied on the owner's price. One of the other questions in Document No. 2 asks the following: "(Q) How will Florida Landowners Service Bureau sell my property? (A) Review status of development and zoning in the immediate area of your property to recommend the correct selling price for you. List your property in our directory, which is distributed by mail to real estate brokers throughout the world." Kenneth Kasha in the aforementioned deposition stated that 95 percent of the time they did not document the development and zoning to set a price as the ad indicated they would do. In Document No. 3, which is a copy of the listing and brokerage agreement, one of the statements of consideration between the parties is that Florida Landowners Service Bureau as the part of their consideration will: "(b) Contemporaneously with appearance of said listing in the directory, you agree to direct the efforts of your organization to bring about the sale of my property". This should be read in pari materia with the following provision in that Document No. 3 which states: "(c) To advertise said property as you deem advisable in newspapers, magazines, or other mediums of merit". A view of the facts that were established on the question of promoting the sale of the property through advertising or other methods, demonstrates that the Florida Landowners Service Bureau in the person of Kenneth Kasha was not living up to this agreement to bring about a sale in a bone fide fashion. This leads to a consideration of the question of whether the efforts which were taken by Kenneth Kasha t/a Florida Landowners Service Bureau were so fraudulent or deficient that they constitute violations of the provisions of Chapter 475, F.S. that are alleged in the Administrative Complaint. The general contention of the Administrative Complaint in Count I is that the solicitation of the property owners was a scheme to fraudulently secure money through the "advance fee" for reason that no bone fide effort was made to sell the property listed with Kenneth Kasha, t/a Florida Landowners Service Bureau. As indicated before there was no bone fide effort made to sell the property. More particularly, in terms of stating grounds for action against the Respondent's license, the course of conduct by the Respondent personally and through his company, Florida Landowners Service Bureau, demonstrates that he is guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in this state and has violated the duty imposed upon him by law or the terms of listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed overt acts in furtherance of such intent, design or scheme, all in violation of 475.25(1)(a) F.S. The course of conduct by Kenneth Kasha personally and trading as Florida Landowners Service Bureau shows him to be guilty of conduct or practices which show that he is dishonest and untruthful to the extent that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him, as set forth in 475.25(3) F.S.
Recommendation Upon consideration of the facts in this cause, it is recommended that the Petitioner, Florida Real Estate Commission, revoke the real estate broker's license, certificate number 0046189, held by the Respondent. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Kenneth Kasha P.O. Box 611238 North Miami, Florida 33161 Richard J.R. Parkinson, Esquire and Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY MEMORANDUM ================================================================= Orlando, Florida June 15, 1979 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Fred Langford, Staff Attorney RE: Revocation of Kenneth Kasha - PD No. 3014 004618904 DOAH Case No. 77-1299 Attached please find a copy of the Final Order, Mandate and Order from the Third DCA concerning Kenneth Kasha. The effective date of revocation is December 21, 1978. /FL:bam Attachments* Fred Langford Staff Attorney * NOTE: Attachments noted are unavailable at the division and therefore not a part of this ACCESS document.
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact Respondent Shankar S. Agarwal is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0312860. The last license issued was as a broker. Respondent Super Realty, Inc., is now and was at all times material hereto a licensed real estate corporation in the State of Florida having been issued license number 0231630. The last license issued was as a broker located in Hollywood, Florida. At all times material hereto, Respondent Shankar S. Agarwal was licensed and operating as a qualifying broker and officer for Respondent Super Realty, Inc. Respondents advertised for sale by newspaper advertisement a VA repossessed property being a four unit apartment building in Fort Lauderdale, Florida. In April, 1985, Warren and Judith Fieldhouse responded to Respondents' ad, and Respondent Agarwal arranged to meet the Fieldhouses at the property. At the property, the Fieldhouses informed Respondents that they wished to purchase a property as an investment and required that any property purchased by them result in income to them as opposed to resulting in a loss for them. Respondent Agarwal specifically represented to the Fieldhouses that the rental character of the neighborhood had been assessed by the Respondents, that Respondents were qualified to appraise the rental character, and that each unit could be rented for $300 or more per month. Respondent Agarwal further represented that the rent for the property would therefore exceed its expenses. The Fieldhouses decided that they wished to purchase the property based upon Respondents' representations. Respondent Agarwal required the Fieldhouses to give him a check for $1,000 a while still at the property before he would return with them to the office of Super Realty, Inc., to draft a purchase contract. Respondent Agarwal and the Fieldhouses went to Super Realty, Inc., where a purchase contract was drafted by Respondent Agarwal and signed by the Fieldhouses. Respondent Agarwal refused to give to the Fieldhouses a copy of that contract. Respondent Agarwal further advised the Fieldhouses that they were to obtain the required liability insurance on the property from his insurance agency and that they were not to use their own insurance agency. The Fieldhouses refused to comply with Agarwal's direction to them. Changes were subsequently made by Respondents to the Fieldhouses' purchase contract. Although those changes were approved telephonically by the Fieldhouses, Respondents never obtained the Fieldhouses signatures approving the changes in the contract. A closing was scheduled by Respondents at the office of Super Realty, Inc., on May 22, 1985. The Fieldhouses inspected the property just before the closing and found that the property's "as is" condition on the day of closing was worse than its "as is" condition on the day that they first saw it and entered into the contract for the purchase and sale of the property. Appliances were missing, and damage was done to the structure. The Fieldhouses objected to the condition of the property on the date of closing. Yet, the closing began. Respondent Agarwal began handing the Fieldhouses individual documents to sign. When he handed them a required financial disclosure statement, the Fieldhouses realized that the mortgage plus insurance and taxes payments would exceed the rental income which Respondents had represented could be projected from the units, that the amount of payments and other representations initially made by the Respondents were not incorporated into the closing documents, and the rental income for the property would not exceed the property's monthly expenses. The Fieldhouses refused to continue with the closing. They demanded copies of the documents that they had signed, but Respondents refused to give them copies of those documents. They demanded a refund from Respondents of their $1,000 deposit, but Respondents refused to refund their money to them. Although the Fieldhouses had signed a note and mortgage on the property before they refused to continue forward with the closing, they gave Respondents no monies toward the purchase of the property to increase the $1,000 earnest money deposit to the required down payment for the property. Respondents knew that the Fieldhouses did not pay the required cash to close on the property, the additional consideration required under the contracts. After the closing, the Fieldhouses made additional demands on Respondent for the return of their $1,000. Respondents refused to return that money to them and further refused to discuss the matter with them further. Respondents submitted the Fieldhouse closing documents to the Veterans Administration claiming a sales commission due to the Respondents in the amount of $5,740, even though Respondents knew that the sales transaction had never closed. Since the Veterans Administration had experienced difficulties with Respondents' complying with their rules and regulations on previous occasions, the VA took the position that the Respondents were not entitled to a commission since no sale had taken place and that the Respondents should refund to the Fieldhouses their $1,000. Respondents sued the Veterans Administration for a sales commission. At the time that Respondents sued for a commission, they knew that they were entitled to no commission since there was no sale. When the Veterans Administration filed an Answer to Respondents' Complaint indicating that it intended to fully defend Respondents' false claim, Respondents voluntarily dismissed their litigation against the Veterans Administration. The VA now has possession of the Fieldhouses' $1,000 deposit which it intends to return to the Fieldhouses. Although Mr. Fieldhouse was a licensed real estate salesman during the time period material hereto, he had not actively worked as a real estate salesman. Therefore, the Fieldhouses relied upon the Respondents as licensees to responsively perform the sales transaction and further relied upon Respondents' representations regarding the property's income and expenses. Respondents never advised the Florida Real Estate Commission that demands had been made for the return of the $1,000 which Respondents held in escrow until such time as they voluntarily forwarded the money to the Veterans Administration despite the Fieldhouses' demands for its return to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing Counts V and VI of the Administrative Complaint, finding Respondents guilty of the remaining allegations in the Administrative Complaint, and revoking Respondents' real estate broker licenses. DONE and RECOMMENDED this 21st day of April 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 21st day of April, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Super Realty, Inc. c/o Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
