Findings Of Fact Defendant Jo Tricoli Realty, Inc. was a registered real estate corporate broker, holding Certificate No. 0089973 until August 18, 1976, at which time its Articles of Incorporation were amended to change the name of the business to Tricoli Realty, Inc.; Josephine L. Tricoli is a registered real estate broker, Certificate No. 0089966; Defendant Anthony F. Tricoli is a registered real estate broker, Certificate No. 0089956; and Defendant Phyllis B. Ludwigsen is a registered real estate salesman with Certificate No. 0114963. The Defendant's address registered with the Commission is 1550 West 84th Street, Hialeah, Florida, 33014. At all times material hereto, Defendants Josephine L. Tricoli and Anthony F. Tricoli were brokers and active firm members of Tricoli Realty, and Defendant Phyllis B. Ludwigsen was an active salesman employed with the same firm. On September 25, 1975, Mr. and Mrs. Hartley Kroul viewed an apartment at 15416 Sharpecroft Drive, Miami Lakes, with Defendant Phyllis Ludwigsen of Tricoli Realty, the broker in the transaction. Thereafter, a lease was prepared by Defendant Ludwigsen, based upon instructions from the owner of the property. The lease was prepared on a form furnished by Tricoli Realty, was prepared in a branch office of Tricoli Realty, was witnessed by Defendant Ludwigsen and the manager of the branch office of Tricoli Realty, and was signed by the parties on September 25, 1975. A clause typed into the lease provides that the first and last months rent, together with a security deposit of $450, for a total of $1,350, was to be held in escrow by Tricoli Realty, and Tricoli Realty did, in fact, receive a check for $1,350 for Kroul in accordance wit this clause of the lease agreement. The lease was for a one-year term, and expired on September 26, 1976. Notwithstanding the provision of the lease concerning the escrow deposit, within two or three days after September 25, 1975, Defendant Tricoli Realty , by a check signed by Defendant Anthony Tricoli, disbursed $900 of the escrow monies to the lessor-property owner. The additional $450 was retained by Tricoli Realty as a commission. Defendant Anthony Tricoli did not review the terms of the lease before disbursing the $900, although the lease was located in a branch office of Tricoli Realty, and could easily have been examined prior to disbursement. The Krouls vacated the premises after the expiration of the lease and thereafter sought refund of the security deposit from Tricoli Realty. A demand for a refund of the security deposit was made upon Defendant Anthony Tricoli, but he refused to refund the security deposit and advised the Krouls to seek the refund from the property owner. Thereafter, the property owner returned $290 of the security deposit to Tricoli Realty, claiming certain expenses incurred after vacating the premises. Tricoli Realty then attempted to refund the $290 to the Krouls, who refused to accept that offer in settlement of their claim for the entire security deposit. The Krouls eventually resorted to a court of competent jurisdiction for refund of their security deposit, where the issue of civil liability was ultimately resolved. The Krouls never authorized Tricoli Realty, Josephine L. Tricoli, Anthony F. Tricoli, Phyllis B. Ludwigsen, or any other representative or employee of Tricoli Realty to disburse $900 of the escrow money to the property owner prior to the expiration of the lease. No testimony was offered that Defendant Josephine L. Tricoli was in any way involved in, or had any knowledge of, the Kroul transaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Florida Real Estate Commission dismissing the Complaint against Defendant Josephine L. Tricoli. That a Final Order be entered by the Florida Real Estate Commission dismissing Count 3 of the Complaint against Defendant Anthony F. Tricoli. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Phyllis B. Ludwigsen for a period of three months. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Tricoli Realty, Inc. for a period of six months. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Anthony F. Tricoli for a period of six months. DONE AND ENTERED this 15rd day of February, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Staff Counsel Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Pearl R. Ferer, Esquire 304 Concord Building 66 West Flagler Street Miami, Florida 33130
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner is a real estate salesman registered with the Florida Real Estate Commission. In September of 1978, petitioner submitted an application to the Florida Real Estate Commission for registration as a real estate broker. By an Order dated December 4, 1978, the respondent denied the application for the reason that the applicant had not made it affirmatively appear that he possessed the necessary qualifications under F.S. 475.17. Specifically, the Commission found "That it appears to the Commission that Salesman Dunkum signed Broker Wallace W. Staff's name as a witness to Dunkum's signature on a contract offer to purchase real estate without authorization. In addition, Salesman Dunkum signed Broker Staff's name to a listing agreement without authorization." The petitioner timely requested an administrative hearing on the denial of his application and the undersigned Hearing Officer was duly designated to conduct the proceedings. The petitioner Dunkum admits that he did sign broker Staff's name as a witness to his own signature on a contract for the sale of real estate. Mr. Dunkum has been a notary public for approximately fifteen years and was aware that he should not have signed Staff's name as a witness. Petitioner was the purchaser under the contract and did in fact purchase the real estate. Thus, neither the purchaser nor the seller was harmed by the wrongdoing. The petitioner further admits that he did sign broker Staff's name to a listing agreement. He admits that he was wrong to sign Staff's name, without adding his initials or name under the signature. Petitioner believed he had the authority to sign Staff's name to listing agreements in Staff's absence. Mr. Staff testified that he never gave petitioner authority to sign his name and that all listings were to be under his signature. Mr. Staff was aware that petitioner had signed his name on documents prior to September of 1978. Nevertheless, on September 18, 1978, Mr. Staff entered into a three year independent contractor agreement with petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for registration as a real estate broker be DENIED, but that petitioner be permitted to submit another application for registration nine (9) months after the Order of the Commission dated December 4, 1978. Respectfully submitted and entered this 30th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Rupert E. Dunkum 5900 94th Avenue Pinellas Park, Florida 32802
Findings Of Fact At all times relevant hereto, Respondent, Gerald Golub, held real estate broker's license number 0032443, issued by the Florida Real Estate Commission and was registered as a broker with Gerald Realty, 11025 University Boulevard, Orlando, Florida 32817. During December, 1978, S. Michael Senia, a registered real estate salesman then employed by Respondent, negotiated a 3-year lease between Pentagram, a Florida general partnership, as lessor and S. and M. Specialities, Inc., doing business as Global Coach and Armor Manufacturing Company as lessee. This lease extended through December 31, 1981, and provided that Respondent was to receive commissions, from Pentagram, paid over the 3-year period of the lease as follows: 7 percent during the first year 5 percent during the second year 3 percent during the third year Respondent and Senia agreed that Senia was to receive 60 percent of the above commissions as salesman, and Respondent was to retain the remaining 40 percent as broker. Respondent received the commissions as provided in the lease and paid Senia his share until he left Respondent's employ in November of 1979. Senia also received commissions for the months of December, 1979, and January and February, 1980. Thereafter the commission payments to Senia ceased. Beginning in May, 1980, Senia made demand upon Respondent for an accounting or delivery of the commissions which he claimed were due. See Petitioner's Exhibits one and two. On July 24, 1981, and October 8, 1981, representatives of the Department of Professional Regulation requested that Respondent provide Senia with an accounting of the commissions due on the aforementioned lease. Respondent failed to provide Senia or Petitioner with an accounting or delivery of the aforementioned commissions claimed until after the Administrative Complaint was filed against Respondent on December 29, 1981. However, Respondent had advised Senia, around midyear 1981, that he would not pay the $144 due at the end of April, 1980, until Senia returned office keys, certain files and a list of items he was working on when he left Gerald Realty. See Petitioner's Exhibit one.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsection 475.25(1)(d), F.S., and, in consideration thereof, fine Respondent $500. DONE and ENTERED this 4th day of August, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 4th day of August, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gerald Golub 11025 University Boulevard Orlando, Florida 32817 Frederick H. Wilsen, Esquire State Office Building 400 West Robinson Street Orlando, Florida 32801 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all pertinent times, both respondents held real estate broker's licenses. The corporate license is No. 0222663 and the individual license is No. 0159888. The individual respondent has been the only owner of the corporate respondent and the only broker the corporation has ever employed. At one time Angela Lewis worked for Broker Jim, Inc. as a licensed real estate salesperson. On October 6, 1981, it was she who signed, on the broker's behalf, a listing agreement with Laverne Lockhart and Faith Willis, the sisters who jointly owned the house at 1535 NW 116th Street in Miami, Florida (the house) . Petitioner's Exhibit No. 2. Kenneth G. Wilson, who wanted to buy the house, had $5000 available. The house was encumbered with a mortgage in the approximate amount of $33,000 and the sisters eventually agreed to take $44,000 for the property. On the form contract signed by both owners and Mr. Wilson, and dated November 25, 1981, under the heading "Terms and conditions of Sale:", the following was typewritten: 1,000 as mentioned above. Purchaser agrees to make an additional deposit in the amount $4,000 before closing. Purchaser agrees to assume an existing first mortgage in the Approx. amount $33,000, payab[l]e $340.00 P.I.T.I at 10.5 percent per annum in accordance with the terms and conditions set forth therein. Purchaser to obtain a P.M. 2nd mort[g]age in the amount of $6,000 at 18 percent per annum payable Approx. $152.37 for a period of 5 yrs. Balance of purchase price to be paid in cash or cashier check at time of closing. Property being purchased in its present as is condition. Petitioner's Exhibit No. 3. Elsewhere on the printed form appears the following: When this contract is executed by the purchaser and the seller and the sale is not closed due to any default or failure on the part of the purchaser, the seller, at his option, may seek to enforce this contract, or else the seller may direct the holder of the deposit to pay the broker his brokerage fee not to exceed one-half of the deposit and to pay the balance of the deposit to the seller as consideration for execution of this agreement, and the holder of the deposit shall be held harmless by all parties for disbursement in accordance with this agreement. Petitioner's Exhibit No. 3. Ms. Lewis prepared the form contract. Mr. Muhammad, as he is now known, read it over and approved it. In retrospect, he believes this was a mistake, because the contract fails clearly to reflect the parties' understanding that the offer was contingent on Mr. Wilson's ability to borrow $6,000, to be secured by a second mortgage on the house. A deposit ticket dated November 25, 1981, accompanied Mr. Wilson's check for $1000 when respondents deposited it to their escrow account. The bank credited the escrow account on December 1, 1981. Neither Mr. Wilson's efforts to obtain a loan, nor those of respondents on his behalf, availed, and word reached Ms. Lockhart that the transaction was doomed for want of sufficient purchase money. Over the phone, Ms. Lockhart told Helen Jackson, respondents' secretary, that she wanted a "refund" of the deposit. A lawyer Ms. Lockhart consulted communicated a similar demand to respondent Muhammad personally. Respondents gave Ms. Lockhart no money and no accounting. The money stayed in respondents' escrow account until it was used on Mr. Wilson's behalf in the purchase of another house respondents had listed.
Findings Of Fact Robert Hartnett was at all times pertinent to this complaint a registered real estate broker. Bill Dew and Dave Allman sought to lease a specific piece of real property for business purposes. In this regard they contacted William Hartnett, who had previously leased a piece of real property which included the specific piece of property Messrs. Dew and Allman desired to lease. Messrs. Allman and Dew entered into an agreement to sublease a portion of the Hartnett leasehold. A contract was prepared by William Hartnett and delivered by Robert Hartnett to Dew and Allman, who executed the contract. Although there is conflicting testimony, the testimony of Robert Hartnett is accepted as the more accurate explanation of his role in the transaction. Robert Hartnett had no interest in William Hartnett's business venture or in the leasehold, and did not appear or function as a real estate broker in this transaction. The owner of the property, Mr. Grossinger, testified he agreed to lease the property to William Hartnett. Hartnett was permitted to occupy the premises and paid rent. William Hartnett prepared a written lease which was not signed by the owner, Mr. Grossinger. Grossinger terminated the agreement when Hartnett subleased the premises to Allman and Dew without notifying him and instituted legal action to evict William Hartnett. Under the circumstances, there was an oral lease between Hartnett and Grossinger. Messrs. Dew and Allman made arrangements with contractors to make modifications to the subleased premises, and the modifications were begun. These modifications were in part the cause for the owner terminating the lease with William Hartnett. Messrs. Dew and Allman or their agents did have occupancy of the premises.
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 Respondent Robert Hartnett. DONE and ORDERED this 14th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Louis M. Jepeway, Esquire 619 Dade Federal Building 101 East Flagler Street Miami, Florida 33131
Findings Of Fact At all times material hereto, Respondent A. Richard Perez was a licensed real estate broker in the State of Florida, having been issued license number 0246170. Richard Perez and Associates, Inc. was, at all times material hereto, a corporation registered as a real estate broker in the State of Florida, having been issued license number 0233722, and Respondent Perez was the qualifying broker, owner and President of said real estate corporation. From approximately April, 1984 to approximately September 24, 1984, Respondent Perez employed Beverly Givens as a real estate salesperson. This employment was through, and in association with Richard Perez and Associates, Inc. Givens' real estate salesperson's license number is 0403324. Givens was employed by Perez to engage primarily in the sale of condominium conversion units known as Oakbrook Village Condominiums in Clearwater, Florida. In accordance with her independent contractor and compensation agreements, commissions were earned only at such time as a sale was closed and the seller paid a commission on such sale. Further, in the event of the termination of the independent contractor agreement, the independent contractor was entitled to one-half of the regular commission for all units closed following such termination if there was a fully executed sales contract on the unit at the time of termination, and if the seller paid a commission on the sale. In addition, Givens was eligible for, and did in fact receive, a draw of $450 every two weeks from Perez beginning on April 15, 1984. Commissions earned by a salesperson were first applied against any outstanding draw balance, and after all draws were repaid, the salesperson then received excess commissions. At the time of her termination on or about September 24, 1984, Givens had several fully executed sales contracts for units at Oakbrook Village which had not yet closed. Five of these contracts subsequently closed, as follows: Hoffman on September 28, 1984; Vollbracht on September 28, 1984; Gasser on October 5, 1984; Hakel on October 5, 1984; and Cook on October 31, 1984. Respondent Perez did not pay Givens any commissions in connection with these five closings. However, Perez only received commissions from the seller for the Hoffman, Gasser and Hakel transactions, and did not received any commissions for the Vollbracht or Cook closings. Givens filed suit against Richard Perez and Associates, Inc., on January 14, 1985. On July 29, 1986, she received a Final Judgment against that corporation, in Case Number 85-3211-15, in the Circuit Court for Pinellas County, for unpaid commissions in the amount of $1522.29, plus $322 in interest, $216.45 for costs and $2500 for attorneys fees, for a total of $4,560.74. Respondent Perez, as qualifying broker at the time, did not attend the trial, and said corporation was unrepresented in the proceedings. To date, Respondents have not paid or otherwise satisfied this Final Judgment. On July 29, 1987 a Verified Motion for Relief From Final Judgment was filed in Case Number 85-3211-15 on behalf of Richard Perez and Associates, Inc., seeking to set aside the Final Judgment because of lack of notice concerning the trial date. Respondent Perez, as President of said corporation, verified this Motion. By stipulation of the parties in this case, the Verified Motion was denied. Givens received nine checks representing draw payments of $450.00 each for the period between April 15 and August 31, 1984. In addition, she received a check dated September 20, 1984 in the amount of $4,741.84 which states thereon, "Pay back draw and commissions to date." These checks were all signed by Respondent Perez from the account of Richard Perez and Associates, Inc. Total payments received by Givens amounted to $8,791.84. No records were produced by Petitioner or Givens to establish the commissions she was due for closings which occurred during her employment. She simply alleged that when she terminated her employment on September 24, 1984, she had paid back all draws and amounts advanced to her, and that she was therefore entitled to one-half of the normal commission on the five closings which occurred after her termination. Petitioner and Givens rely on the notation on the check she received from Respondent on September 20, 1984, and the Final Judgment in Case Number 85-3211-15 to support her allegation that when she terminated her employment, she did not owe Respondent Perez any amounts for draws and advances and that he has failed to pay her commissions to which she was entitled. Testimony offered by Petitioner of Clay Simpson and Jim Givens is given little weight due to their own expressed motivation to support Beverly Givens in her claim against Respondent, the fact they were not involved in the process of paying Respondent's salesmen, and their lack of knowledge or experience in keeping financial records. Respondent alleges that upon Givens' termination, she owed him certain amounts for draws which had been advanced to her, and that the subsequent closings were applied against that balance due. Therefore, he maintains that he owes her nothing as a result of these five closings. Based upon the clear and express terms of the independent contractor and compensation agreement, it is specifically found that Beverly Givens was not due any commission on the Vollbracht and Cook closings since the evidence clearly establishes that in both cases the seller did not pay Respondent any commissions in association with these sales. Respondent Perez and Givens agree that she should be credited with a $416.13 commission from the Hakel closing. Concerning the Gasser and Hoffman closings, Perez asserts Givens should be credited with $275.63 and $269.50, while Givens claims $321.56 and $404.25, respectively. It is therefore Perez' position that Givens' credits from these subsequent closings totalled $961.26, while Givens claims $1,141.94 from these three subsequent closings. The evidence adduced at hearing does not permit a finding to be made as to which credit amount is correct, because no testimony or documentary evidence was presented concerning the percentage of commission to be earned by the salesperson on these three transactions. Nevertheless, even if it is assumed that the lower credit amount was due Givens, it would still appear that Respondent Perez owed her almost $1000.00, and has improperly failed to pay her these commissions. Competent substantial evidence was offered by Petitioner in the form of the check dated September 20, 1984, in the amount of $4741.84 bearing the notation that it was for payment of "back draw and commissions to date" to establish that Givens had paid back all draws and advances through earned commissions while she was employed by Respondent Perez, and in addition thereto still had sufficient sales to receive this payment. Therefore, when she terminated on September 24, 1984, she was due commissions from Perez for the three sales which subsequently closed for which the seller had paid him a commission. While there may be a dispute as to the exact amount of commissions owed Givens, it is clear that it was between $961.26 and $1,141.94. The draw/commission account ledger presented at hearing by Respondent Perez allegedly showing that Givens owed him approximately $1450 is not persuasive because he testified that it was not prepared contemporaneously with the sales transactions depicted thereon, but rather was prepared after Givens' termination by a person who was not present to testify, and no records were produced to verify or substantiate the sales figures depicted on the ledger.
Recommendation Based upon the foregoing it is recommended that the Florida Real Estate Commission enter a Final Order imposing an administrative fine of $1500.00 against Respondent A. Richard Perez only, and suspending his real estate broker's license for a period of three months; it is further recommended that a Final Order be entered suspending the registration of Richard Perez and Associates, Inc., for a period of three months. DONE AND ENTERED this 16th day of December, 1987, in Tallahassee, Florida. DONALD D. CONN 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 16th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1990 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 3. 3-4. Adopted in Finding of Fact 4. 5-6. Adopted and Rejected in part in Finding of Fact 5. Rejected as unnecessary and irrelevant. Adopted and Rejected in part in Finding of Fact 6. Rejected as simply a summation of testimony and not a Finding of Fact; otherwise, Rejected as irrelevant, unnecessary and not based on competent, substantial evidence. Adopted in Findings of Fact 10-12. Adopted in Finding of Fact 14. Adopted and Rejected in part in Findings of Fact 5, 11, 12. Rejected as simply a summation of testimony. Adopted in Findings of Fact 6, 7, but otherwise Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 David S. TenBrook, Esquire 601 North Lois Avenue Tampa, Florida 33609 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
