The Issue By an information filed by the Florida Real Estate Commission, respondent Thomas F. Thayer was charged with fraud, dishonest dealing and breach of trust in a business transaction in violation of Florida Statutes s.475.25(1)(a). In essence, the information charges that respondent, as the real estate broker for the Jacobs and in order to obtain a ninety percent loan commitment for the Jacobs, falsely represented to a mortgage corporation that the Jacobs Intended to move into the duplex they planned to purchase and sell their present home.
Findings Of Fact At all relevant times to this proceeding, respondent was a registered real estate broker. Respondent had been an acquaintance of Mr. and Mrs. Richard Jacobs for a period of four to five years. Some two years before the transaction in question, Jacobs had expressed to respondent his desire to purchase property containing a duplex for purposes of a tax shelter. Mr. Jacobs testified that he intended the purchase to be an Investment somewhere in the neighborhood of $5,000.00. There was also evidence that Mr. Jacobs understood that there were tax shelter benefits from living in half the duplex and depreciating the other half. In April of 1974, respondent showed the Jacobs a duplex. At the time, the Jacobs were living in a two bedroom, two bath waterfront home with a swimming pool, valued somewhere in the neighborhood of $60,000.00. The location of the duplex was in a lower rent neighborhood near some railroad tracks. However, the front portion contained three bedrooms, two baths, a thick shag carpet and a built-in bar. There were also two large screened-in patios. The Jacobs were impressed with the duplex, and on April 19, 1974, they signed a deposit receipt contract prepared by respondent to purchase the duplex for $41,000.00. This contract was subject to the Jacobs being able to obtain ninety percent financing at 9.25 percent annual Interest within fifteen days from the date of acceptance by the sellers. The contract also contained certain conditions regarding inspection of the rear apartment; electrical, plumbing, roofing and appliance defects; termite damage and the inclusion of a metal storage shed. Such conditions were included in the contract at the request of Mr. Jacobs. In order to obtain ninety percent financing, it was necessary that the lender be assured that the borrower actually intends to reside on the mortgaged property. This assurance comes about through either an affidavit executed by the borrower at the time of closing and/or the filing with the lender of a sales listing on the present home of the borrower. From this point forward, disputes in the testimony arise. Respondent testified that Mr. Jacobs was aware of the financing requirement that he would have to indicate an intent to sell his present home. Jacobs acknowledged that he was so aware, but testified that he never had any intent to move from his waterfront home to the duplex, and so informed respondent. However, when he went in to make the loan application with the mortgage company, he told its representative that he would be living in the duplex. Respondent then informed the mortgage company that he would be sending them a multiple listing form on the Jacobs' present residence. Jacobs stated at the hearing that he and his wife never intended to reside in the duplex and that he followed respondent's advice regarding the filing of a multiple listing only because he had faith and trust in respondent, who told him such things were done all the time. Respondent testified that the Jacobs never informed him that they did not intend to live in the duplex or that they did not intend to sell their present home. In fact, there was testimony from Mr. Jacobs that between the time of the deposit receipt contract and the first letter approving the mortgage loan commitment, he and his wife were looking at other homes on the water in which to live. The multiple listing form was signed by the Jacobs and delivered to the mortgage company by respondent, but it was never turned in to the multiple listing service. Sometime subsequent to receiving the mortgage loan commitment on May 29, 1974, Jacobs inspected the rear apartment of the duplex and became very upset and disgusted with its condition. Repairs were estimated at $1,000.00 and the sellers only offered to contribute approximately $75.00 toward such repairs. Jacobs then went to an attorney who advised him that it would be illegal to continue with the purchase because of the misrepresentation as to the Jacobs' intent to reside in the duplex. Jacobs then called the mortgage company and told them he did not intend to live in the duplex. Thereafter the mortgage company informed Jacobs that they were unable to obtain a mortgage commitment. Respondent testified that he first became aware that the Jacobs did not intend to live in the duplex the night after Jacobs inspected the rear apartment and spoke with his attorney. In summary, the testimony in this case is conflicting with respect to respondent's knowledge of the Jacobs' intent as to where they would actually reside. In order for respondent to be found guilty of fraud, dishonest dealing and breach of trust in a business transaction, as prohibited by Florida Statutes s 475.25(1)(a), the Real Estate Commission must prove by clear and convincing evidence that respondent actually knew that the Jacobs never intended to reside at the duplex property. That proof is lacking in this case. Here, the substance of the matters in dispute are as readily susceptible of proving respondent's innocence as they are susceptible of proving guilt. Jacobs testified that he originally wanted the duplex as an investment which would provide a tax shelter and that he did not intend to live in it. Yet, he verbally represented to the mortgage company that he did intend to live in the duplex, signed a multiple listing agreement and actually did look at other homes to live in during the period of time between signing the deposit receipt contract and obtaining knowledge of the original loan commitment. There was no evidence that respondent had any knowledge of or was involved in the Jacobs' search for another home in which to live. Jacobs was willing to go through with the purchase of the duplex until he became aware of the extent of damages to the rear apartment. It was at this time that he Informed the mortgage company that he did not have any intention of living in the duplex or selling their house. And, it was at about this same time, according to respondent, that respondent first learned that the Jacobs did not intend to reside in the duplex. There is no clear and convincing evidence in this record that proved that respondent knew that the Jacobs did not plan to live in the duplex at the time respondent forwarded the multiple listing to the mortgage company on April 30, 1974. The most credible evidence tending to show such knowledge on respondent's behalf is the fact that after the multiple listing agreement was signed and delivered to the mortgage company, the house was never actually put up for sale, was not shown to anyone, and the agreement was not filed with the multiple listing service. Yet, this is consistent with the evidence that the Jacobs did not receive word of the loan commitment until after May 29, 1974 (later to be rescinded on July 5, 1974) and the fact that the Jacobs were in the process of looking for yet another home to purchase. It is logical to assume that they were not yet ready to sell their present home with the uncertainties that existed, and this Instructed respondent to delay the selling process. In summary, it is concluded that the Real Estate Commission failed in its burden to prove, by clear and convincing evidence, the misconduct charged; to wit: fraud, dishonest dealing and breach of trust in a business transaction. It is therefore RECOMMENDED that the information charging respondent with a violation of Florida Statute 475.25(1)(a) be dismissed. Respectfully submitted and entered this 30th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Spindler, Jr., Esquire and James R. Eddy, Esquire EDDY AND SPINDLER, P. A. 700 East Atlantic Boulevard Pompano Beach, Florida 33060
The Issue Whether Abbey Lane is guilty of violating the provisions of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Abbey Lane is a registered real estate salesman. Abbey Lane worked for International Land Services Chartered, Inc., from January to March, 1976. He earned $25 per day while working Saturdays and Sundays and earned $20 to $30 when a person who he had contacted subscribed to services of International Land Services Chartered, Inc. Lane described his duties as a "fronter", or a person whose job it was to establish initial contact with a prospect. His job was not to sell the services of International Land Services Chartered, Inc., but to determine whether the individual who he contacted was interested in those services. He gave the names of those from whom he received a positive response to Sam Lerner, a manager in the office during the weekends. These prospects were then contacted by individuals working during the week called "closers". Lane left International Land Services Chartered, Inc. when he read about the problems with advance fees in the newspapers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no actions against the registration of Abbey Lane as a registered real estate salesman. DONE and ORDERED this 7th day of April 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Abbey Lane 3800 S. Ocean Drive, Apt. 1004 Hollywood, Florida 33019
Findings Of Fact Kirk was a registered real estate broker licensed by the Florida Real Estate Commission at all times relative to the Administrative Complaint. Juneau Edwards negotiated a valid and binding contract for sale between Wilbur Davis as seller and Julius and Elizabeth Lau as buyers. The Laus paid $500 as a deposit under the contract on October 3, 1975 to Edwards. The contract, Exhibit 3, contains the following provisions: "Full purchase price $27,500, payable $27,500 in cash, of which the deposit shall apply as part and sale be held by said agent (Kirk Realty) in escrow pending closing of transaction, balance payable in the following manner: Cash at closing, contingent upon buyer se- curing first mortgage loan from Mid- State Federal Savings and Loan Association of Dunnellon, Florida. . ." The contract also contains a provision that the buyer forfeits his deposit if he fails to perform under the terms of the contract. The Laus submitted an application for a first mortgage in the amount of $21,000 on October 6, 1975, which was disapproved for that amount. Disapproval was communicated to the Laus by a letter from David L. Belcher dated October 15, 1975, Exhibit 7. The evidence reveals that the amount of the loan requested exceeded 80 percent of the appraised value of the Davis property by $34,000. Pursuant to the contingency provision of the contract, the contract was void when then loan request was disapproved. However, when the Laus met with Edwards and Kirk they advised them that the loan had not been approved in the amount requested, but did not demand the refund of their $500.00 deposit. Instead, when Kirk and Edwards suggested that Davis be advised and negotiations for a lower price for different terms be undertaken, the Laus assented to this. Arrangements were made by Kirk for such a meeting between Davis and the Laus; however, the Laus did not attend this meeting because they had become interested in a second house which they ultimately purchased. On October 23, 1975, the Laus applied for a mortgage to Mid-State to purchase another house using their initial application and changing the amount of the loan request to $17,500. This application was approved and the Laus closed on the second house. The Laus did not tell Kirk of their other negotiations on the second house and Kirk learned of the Lau's contract for the second house through Mid-State. After contracting to purchase the second house, the Laus contacted Kirk Realty requesting a refund of the $500 deposit paid on the Davis contract. Kirk visited the Laus at their new house and advised them that he considered them in default under the Davis contract. Kirk distributed the money to Davis and Kirk Realty on December 5, 1975 under the forfeiture provisions of the contract.
Recommendation The Hearing Officer, based on the foregoing Findings of Fact and Conclusions of Law, and considering the factors in mitigation mentioned above, would recommend that Kirk be ordered to pay Lau $500 and receive a letter of admonition. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 APPENDIX A The proposed findings regarding the contract and its provisions between the Laus and Davis presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 2 of the Recommended Order. The proposed findings regarding the negotiations before and after the disapproval of the loan application between the Laus and Juneau Edwards, a/k/a Zerban, presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 3 of the Recommended Order. The proposed findings regarding the submission of the loan application to Mid-State Federal Savings and Loan Association and its disapproval presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 3 of the Recommended Order. The testimony of Belcher in his deposition clearly established that it was disapproved for the amount sought. The proposed findings that the Lau-Davis contract was valid presented in paragraph 2 of the Proposed Recommendation Order is contained in paragraph 2 of the Recommended Order. The proposed finding that the Laus failed to make demand for their deposit presented in paragraph 3 of the Proposed Recommended Order is contrary to the testimony and evidence which indicated that the Laus delayed in making demand for return of their deposit as found in paragraph 3 of the Recommended Order and later requested their money back after contracting to purchase the second house as found in paragraph 4 of the Recommended Order. The proposed finding that the Laus breached the contract is a legal conclusion contrary to that reached by the Hearing Officer based upon the contingency provision of the contract which made the contract contingent upon approval of the Lau's loan application. When that application was disapproved, the contact became void. Therefore, the Laus could not have breached it. The Lau's representations to Kirk that Kirk should continue negotiations with Davis does not create another contract between Davis and the Laus; however, it can and has been considered in mitigation of the impression the Laus gave Kirk regarding their continued interest in the Davis property which lead Kirk to the erroneous conclusion the Laus had breached the contract. The proposed finding that there was no violation of Section 475.25(1)(c) presented in paragraph 4 of the Proposed Recommended Order Conclusions of Law is contrary to the evidence and testimony. The Proposed Recommended Order has been fully considered by the Hearing Officer this 19th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Daniel Hicks, Esquire Tucker, Hicks, Blanchard, Brannen, Dirlam and Stillwell, P.A. Post Office Box 24 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, an Agency of the State of Florida Petitioner, PROGRESS DOCKET NO. 3182 MARION COUNTY vs. CASE NO. 77-685 TYREE C. KING, t/a KIRK REALTY, Respondent. /
Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact From March 22, 1976, to July 1, 1976, Stevens was a registered real estate salesperson in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement alone with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Stevens. FREC established that Stevens had conversations with a Mr. Bob Ingersoll, a Mr. Carl L. Woodward, Mrs. Robert (Carolyn) Kelley, and Mr. James B. Limpp. In each of these cases, Stevens participated in inducing these individuals to list their property for resale with FAR. FREC introduced no evidence to establish that the prices for which the properties wore lifted were reasonable listing prices and further introduced no evidence to show that Stevens represented that the property would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase the property or that such representations, if made, were false. There was no evidence introduced to show that Stevens knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Stevens was dishonest or untruthful.
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violation of Sections 475.25(1)(a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florid Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent Alfred Landin is now a registered real estate salesman and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 7).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwim who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James R. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for its. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to ,sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that thee property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowners Service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, In fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel, Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent Alfred Landin be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J.R. Parkinson, Esquire and Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Stanley M. Ersoff, Esquire 1439 West Flagler Street Miami, Florida 33135
The Issue Should Petitioner discipline Respondent's real estate sales- person's license for alleged conduct evidencing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), 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, Petitioner carries out its duties in compliance with Chapters 20, 120, 455 and 475, Florida Statutes and the rules promulgated under authority set forth in those statutes. At times relevant to the inquiry, Respondent was, and is now, a licensed Florida Real Estate salesperson. Her license number is 0591902. That license was issued in accordance with Chapter 475, Florida Statutes. At times relevant to the inquiry, Respondent worked as a licensed real estate salesperson for Ideal Real Estate Central Florida, Inc., t/a Coldwell Banker Ideal Real Estate in Orange City, Florida (Ideal). The broker for that firm was John S. Chinelli. On April 13, 1993, Respondent listed an exclusive right of sale for property owned by Jason and Kelly Foster at 2853 Sweet Springs Avenue, Deltona, Florida. That listing contemplated that Ideal would earn a real estate commission of 7 percent of the gross purchase price. The listing price in the exclusive right of sale was $69,900. In arriving at the sales price, Mr. Foster relied upon Respondent's advice. That advice included a consideration of the price received for the sale of comparable homes. The establishment of comparable prices as a means to arrive at the listing price for the Foster property involved the use of the Coldwell Banker buyer/seller presentation booklet, as well as a marketing analysis. The price $69,900 was chosen to attract those buyers who were looking for homes that cost less than $70,000. That choice was designed to garner more interest in the home. While the Foster home was being advertised, it was available through the multiple listing pool. Respondent showed the house two times between April 13, 1993, and May 14, 1993. This did not involve a showing to any prospective buyers. Other brokers or salespersons showed the house twice to prospective buyers, but no offers were generated from those showings. Subsequently, Respondent suggested to Mr. Foster that the Foster residence might be appropriate for her use. Respondent offered to buy the Foster property for $65,000. On May 14, 1993, Respondent and Mr. Foster entered into a contract for sale and purchase of the Foster residence. The purchase price was $65,000. Respondent deposited $500 into the escrow account managed by Ideal in furtherance of her interest in the property. The earnest money deposit was placed with Mr. Chinelli pending the closing of the sale. The contract called for Respondent to assume an existing mortgage of $63,556. The contract identified that the Respondent was a licensed real estate agent in Florida, but the purchase was not being made through Ideal. Under this contract, the real estate commission that had been contemplated initially would not be paid to Ideal and Respondent. When Respondent entered into a contract to buy the Foster property, she did not tell Mr. Foster that she would no longer be representing him as a real estate salesperson. The contract between Respondent and Mr. Foster called for a closing date on or before June 30, 1993. In entering into the agreement for Respondent to purchase the home, Respondent told Mr. Foster that she intended to personally occupy that property. Respondent never told Mr. Foster that she entered into the contract to purchase his home with the intent to sell the home to another person. Originally that was not her intention. Respondent held to the view that in the event that her purchase of the home was not concluded, Respondent would still represent Mr. Foster in his desire to sell the home. This is taken to mean that she would be representing Mr. Foster as a real estate salesperson. Sometime around June 20, 1993, Kai and Denise M. Hansen, husband and wife, contacted Ideal to show the Hansens property in the Deltona area. Respondent assisted the Hansens in this pursuit, acting as a real estate salesperson. There was no written agreement between Respondent or her firm signed with the Hansens to represent them in their attempt to purchase a home. Respondent showed the Hansens 8 to 12 homes in the Deltona area. The Hansens were not interested in purchasing those homes. At that point, Respondent suggested that the Hansens look at the home that she was purchasing from Mr. Foster. Respondent told the Hansens that Respondent was buying the Foster house from the Fosters who were moving out of town and that Respondent was helping the Fosters "out of a bind." Respondent told the Hansens that the home might be "too big for her anyway." Respondent told the Hansens that if she could help the Hansens out she would sell the Foster home to the Hansens if the Hansens liked that property. If a suitable home had been found through a real estate listing, other than the Foster residence, a commission would have been paid from the seller of the hypothetical house to the broker for Ideal. In that circumstance, the Hansens would not be responsible for paying a commission to the Respondent or Ideal. The properties other than the Foster property which Respondent was showing the Hansens were shown by Respondent as a sub-agent for the sellers. Respondent showed the Hansens the Foster residence during the week of June 20, 1993. On June 24, 1993, Respondent entered into a contract with the Hansens for sale and purchase of the Foster property. An addendum to that contract indicated that "this contract is contingent upon seller obtaining clear Title on 2853 Sweet Springs, Deltona, FL." The Hansens paid a $1,000 earnest money deposit toward the purchase of the Foster property. That deposit was placed in the escrow account for Ideal. That deposit was to be held until the closing date scheduled for July 16, 1993. Again, it was not contemplated that a real estate commission would be paid to Respondent and Ideal. The price arrived at between Respondent and the Hansens to purchase the Foster property was $72,500. Initially, Respondent had offered to sell the property for $73,000. The Hansens counter-offered to pay $72,000 leading to the final purchase price of $72,500. The contract between the Respondent and the Hansens called for an assumption of a mortgage in the amount of 63,500. Although Respondent had advised the Hansens that the property was being purchased from the current occupants, the Fosters, Respondent did not advise the Hansens of the price the Respondent was paying the Fosters to purchase that property. Respondent never advised the Fosters that the Hansens had sought to purchase the Foster home and that Respondent had entered into a contract with the Hansens for the Hansens to purchase that property. On June 29, 1993, the closing occurred between Respondent and the Fosters and a warranty deed was prepared noting the change in ownership. At the closing Respondent told the Fosters that she still intended to occupy the home. On July 16, 1993, the closing occurred between the Respondent and the Hansens and a warranty deed was drawn conveying the property from the Respondent to the Hansens. As established by Mark A. Carper, a real estate appraiser, the value of the Foster property on April 13, 1993 was between $65,000 and $72,500. In anticipation of moving into the Foster home, Respondent had made arrangements to move out of the residence where she had been living by giving notice that she intended to move.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be entered which dismisses the administrative complaint against Respondent. DONE AND ENTERED this day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 William A. Parsons, Esquire Woerner & Parsons 2001 South Ridgewood Avenue South Daytona, Florida 32119 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant thereto, Respondent Steven M. Frank, held real estate salesman license number 0186888 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He has held a salesman license since February 28, 1978. In September, 1980, Respondent began working as a salesman for Independent Realty Associates, Inc. located at 6281 Pembroke Road, Hollywood, Florida. Alistair D. Monro was active broker and president of the firm. Monro also operated a construction firm and mortgage brokerage business at the same address. At approximately the time when Frank began his tenure with Independent, Monro entered into a non-exclusive agreement with Paul Uber to sell houses and lots in University Park, a housing project in Miramar, Florida which had been purchased by Uber from a bank in foreclosure proceedings. There were no written office procedures setting forth instructions on how contracts and deposits were to be handled. However, Frank had been orally advised by Monro to turn over all contracts and checks to Monro, or in his absence, to a newly hired office manager. There was no night depository arrangement in the office. He had also been instructed that any contracts received on University Park property could only be presented by Monro. In fact, Frank did not know Uber's address or telephone number, and had never seen or met him. An open house was held at University Park on the weekend of September 13 and 14, 1980. Frank volunteered to work at one of the six model homes in the project. Around 3:00 p.m. on Sunday, September 14, Elizabeth and Victoria Woerner executed a contract for sale and purchase in which they offered to purchase the home located at Lot 4, Block 4 in University Park for $75,000. Elizabeth Woerner gave Frank a check in the amount of $100 to be held in escrow as earnest money. The contract called for approval by the seller no later than Wednesday, September 17. At 4:00 p.m. that afternoon, Frank closed the model home and returned with the check and contract to his office. Because Monro had been absent from his office the entire weekend, Frank attempted to give the check to the office manager, Dolly Stogner. However, she would not accept the check and contract since the contract had to be presented by Monro. The following morning (Monday) Frank returned to the office and could not find Monro. He then attempted to give Monro's secretary the check and contract. She refused since the contract was not executed by the seller. He left a message for Monro with the secretary and continued to hold the contract and check. That evening he received a telephone message from Elizabeth Woerner. He was unable to reach her that evening but telephoned her the next morning. After learning she wished to withdraw her offer, he told her he would check with his broker to see how deposits were returned. Thereafter, he attempted to see Monro that day (Tuesday) but again found him absent from the office. He left a message with the office manager for Monro to call him. The call was never returned. On Wednesday, Monro received a telephone call from Elizabeth Woerner concerning her check. When Frank returned to the office that day, he was fired for failing to immediately turn over the check and contract to the broker. The $100 deposit was later returned to the Woerners. Less than a week later, Monro wrote the Department and recommended that Frank's license be suspended or revoked. He advised the Department that Frank was guilty of "failure to turn in the deposit to the broker", "failure to present an offer on the property", and "culpable negligence". He also stated that Frank was "not of a caliber that would make him an asset to the Real Estate Profession." As a result of this letter, a disciplinary proceeding against Frank was begun. The property in question eventually sold for $112,500 in November, 1980. Monro acknowledged that the Woerners' $75,000 offer was so low that it would not have been accepted. He also acknowledged that another offer had been made on the property on September 14 and was pending when the Woerners' contract was signed. Monro did not present the Woerner's contract to Uber, presumably because the Woerners wished to withdraw their offer. No monetary harm was suffered by the seller or the Woerners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Steven M. Frank be DISMISSED. DONE and ENTERED this 29th day of July, 1982, 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 29th day of July, 1982.
