Findings Of Fact Pursuant to Chapter 212, Florida Statutes, the Respondent entered a sales tax assessment in the amount of one thousand four hundred sixty-one and eighty-two one hundredths dollars ($1,461.82) against the Petitioner. In support thereof, Respondent takes the position that payments of $300.00 per charter hour of flying time by the Petitioner to owners of aircraft in order that Petitioner may use said aircraft to provide charter services to third parties are payments for the rental of tangible personal property and therefore subject to a sales tax pursuant to Chapter 212, Florida Statutes. Petitioner on the other hand, takes the position that it is the agent of the owners of the aircraft and as such, provides services which are exempt from taxation pursuant to Department of Revenue Rule 12A-1.71(8), Florida Administrative Code. Mr. Robert Capen, President of the Petitioner, testified that Petitioner has verbal arrangements to utilize the services of two jet aircraft to further its charter services. As a charter service, Petitioner transports third persons to a certain destination and provides the fuel and crew in return for an amount ranging from $300.00 to $750.00 per charter hour, depending on the length of the flight. The amount for services paid by third persons are made payable by check or other credit memos to Petitioner and said amounts are reported as income to the Internal Revenue Service. Pursuant to the verbal agreement with the aircraft owners, Petitioner guarantees that the aircraft will be chartered to third persons three hundred (300) hours annually. In return therefor, Petitioner pays the aircraft owners $300.00 per charter hour on a monthly basis. In addition thereto, Petitioner provides crews, maintains, schedules and operates the aircraft for the owners and is responsible for the proper licensing and certification of the aircraft for charter flights. For these services, Petitioner received a management fee in the total amount of $7,500.00 per month from the two owners of the aircraft. Based on the $300.00 per charter hour fee which is paid by Petitioner to the owners, Respondent entered its assessment claiming that the services provided by Petitioner constitute a "lease or rental" as provided in Section 212.02(2)(a), Florida Statutes. Respondent also points out that the legislative intent as enunciated by the state is that every person is exercising a taxable privilege when leasing or renting tangible property within Florida as set forth in Chapter 212.05, Florida Statutes, and that a tax therefore must be imposed on the gross proceeds of all rentals or leases of tangible personal Property, citing Section 212.11(3), Florida Statutes and Department of Revenue Rule 12A-1.71(1), Florida Administrative Code. Based on the facts adduced at the hearing including the testimony of Messrs. Capen, Nelson Brown and James Santimaw, President, Secretary and Treasurer respectively, it appears that this case is governed by the statutory authority contained in Section 212, Florida Statutes, as implemented by Respondent's Rule 12A-1.71, Florida Administrative Code. Although Petitioner urges that its services amount to the creation of an agency relationship between the aircraft owners, the relevant facts tend to show otherwise. For example, Petitioner provides fuel and crew while third persons did not take possession of nor exert any control over the aircraft. As stated, Petitioner charges and receives an amount ranging from $500.00 to $750.00 per charter hour directly from third persons who have no dealings whatsoever with the aircraft owners. In the absence of any evidence tending to show that any type of agency relationship existed other than the statements advanced by Mr. Robert Brown during the course of the hearing, I hereby conclude that the Petitioner's contention that the services which it renders to third parties amount to a rental of tangible property and is therefore a taxable service within the meaning of Chapter 212, Florida Statutes. Petitioner's final argument that its charter service amounts to a brokerage arrangement was also considered however this argument must also fall as there was no credible evidence tending to establish that the Petitioner was in any manner acting as broker for anyone other than itself.
Recommendation Based on the foregoing findings of fact and conclusions of law as recited above, it is recommended that the assessment referred to herein he upheld as a valid assessment. RECOMMENDED this 7th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Patricia S. Turner, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Rod Tennyson, Esquire Ombres, Powell & Tennyson, P.A. Suite 600, Clematis Building 208 Clematis Street West Palm Beach, Florida 33401 Robert L. Shevin Attorney General The Capitol Tallahassee, Florida 32304
The Issue Whether Respondents' Florida real estate licenses should be disciplined based on allegations that they were guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealings by trick, scheme or device, culpable negligence or breach of trust in a business transaction; failed to account or deliver trust funds; placed, or caused to be placed any contract, assignment, deed, will, mortgage, affidavit or other writing which purports to affect the title of, or encumber, any real property if the same is known to be false or not authorized to be placed of record, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person or for any unlawful purpose; failed to maintain trust funds in the real estate brokerage account or some other depository until properly disbursed; had funds in an escrow account which were personal funds; failed to preserve and make available to Petitioner, books, records and supporting documents of all trust fund transactions; and used an identification of an organization having to do with real estate when it was not authorized to do so all in violation of Subsections 475.25(1)(a), (b), (d), (e), (k) and 475.42(1)(j), Florida Statutes and rule sections 21V-14.008 and 21V-10.027, Florida Administrative Code.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency in Florida charged with the responsibility and duty to prosecute administrative complaints in the field of real estate. Respondent, Affirmative Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in Florida having been issued licensed No. 0267334 and the last license issued was at the address of 4815 East Busch Boulevard, Suite 201F, Tampa, Florida. During times material, Respondent, Sharon Ann Rozelle, was licensed and operating as qualifying broker and officer of Respondent, Affirmative Realty, Inc. having been issued license No. 0541685. On October 26, 1990, Respondents solicited and obtained a property management agreement with Mark Clesi to manage rental units that he owned (a duplex) located at 10118 North 14th Street in Tampa. On June 17, 1991, Respondents solicited and obtained a tenant for Unit A of Clesi's duplex. The lease reflected $300.00 as monthly rent with a $200.00 security deposit to be held in trust by Respondents. On October 12, 1991, Respondents obtained a tenant for Unit B of Clesi's duplex. The lease reflected $280.00 per month as rent with a $200.00 security deposit which was also held in trust by Respondents. The property management agreement in effect between Respondents and Clesi required Respondents to obtain prior approval before making repairs to Clesi's property. The agreement also called for repairs to be made "as needed". Also, Respondent was required to send monthly reports advising Clesi of monies expended toward the apartment for repairs, management fees and rents collected. During June, 1991, Clesi was not receiving reports on a timely basis and therefore requested that Respondent forward such reports in order that he could timely review them. During the period when Respondent served as property manager for Clesi's property, it became necessary for Respondent Rozelle to evict a tenant. The eviction came about as a result of the tenant failing to pay rent. In an effort to force the tenant from the property, Clesi turned off the water service to the property for a period of approximately three months. Clesi did so in an effort to informally evict the tenant. When Clesi's effort proved unsuccessful, Respondent initiated formal eviction proceedings. Throughout the course of the eviction proceedings, Respondent made at least six (6) trips to attend various hearings and motions. For her efforts, Respondent charged Clesi a $300.00 service fee which appears reasonable. After the tenant was evicted, the apartment was extensively damaged and required extensive repairs to make it suitable for human occupancy. Clesi approved the repairs that were necessary to enable the duplex to be rented. Based on the condition of the apartment after the tenant was evicted, it appeared that the evicted tenant had cooked over a charcoal fire for months inside the duplex. Also, there was raw human excrement over the entire bathroom and walls throughout the apartment. The entire apartment had to be sterilized and repainted prior to releasing. The Hillsborough County Health Department issued a notice which banned the duplex from human occupancy until certain specified violations were corrected. Respondent made the necessary repairs and charged Respondent for making them. Although Clesi maintains that he did not authorize all of the repairs that Respondent made, it is more probable than not that he, in fact, authorized the repairs as he was desirous of repairing the property so that he could rent the apartment again. The maintenance company which performed the repairs was "Rozelle's maintenance", a company which was owned by Respondent. There was no effort on Respondent's part to hide the fact that she owned the company as the invoices sent to Clesi clearly reflected the fact that the repair work was done by Rozelle's maintenance. Although it is clear that Respondent and Clesi had disagreements on the extent of repairs needed to make the duplex suitable for human occupancy, Clesi paid for all of the repairs with the exception of a kitchen sink which he contends was replaced simply because it was not shiny. On the other hand, Respondent credibly testified that it was more than the appearance of the sink which needed repairs i.e., the drain was leaking, it was rusty and was causing further damage to the cabinets in the kitchen. Despite the fact that Respondent replaced the sink and Clesi refused to pay, Respondent deducted the amount charged for replacing the sink from Clesi's bill and did not remove it from the unit. Clesi filed a civil claim in Hillsborough County Court seeking $1,411.04 contending that Respondent sent him invoices for unauthorized maintenance charges and fees between June of 1991 and February of 1992. Clesi was unsuccessful in that lawsuit as it was judicially determined that Respondent did not owe Clesi any money based on his claim. On February 7, 1992, Respondent Rozelle filed a claim of lien with the Hillsborough County Circuit Court against Clesi's property for payment of services and Respondent's management of Clesi's duplex. Additionally, Respondent filed five other claims of lien against other owners for property management services. All of these claims of lien have since been released and were done forthwith when Respondent was advised that, despite legal advice to the contrary, it was improper and unlawful for her to do so since the claim of lien included a management fee. On March 14, 1991, Petitioner's investigator, Marjorie G. May, conducted an office inspection and audit of Respondent's escrow accounts based upon records provided (by Respondents). At the time, Respondent's security deposit escrow account maintained at First Union National Bank in Tampa had a trust liability of $350.00 and a bank balance of $270.00 indicating a shortage of approximately $80.00. This shortage came about based on the fact that, unbeknowst to Respondent, her bank debited her account a fee for checks. When these fees came to Respondent's knowledge, she immediately replaced the $79.97 which restored the account to a non-shortage status. The audit also revealed that Respondent's rental distribution escrow account had a zero trust liability but contained $633.00 which appeared to have been Respondent's personal funds. Part of the overage came about based on the fact that Respondent made a required $200.00 initial deposit (her personal money) to keep the account open and maintained at the bank. The remaining balance was part of a shared commission which Respondent was in the process of disbursing to the proper real estate agent. Respondents failed to prepare signed written monthly escrow statement- reconciliations comparing total trust liability with reconciled bank balances of all trust accounts. These reconciliation statements were not filed as charges against Respondents inasmuch as Respondents were new brokers. As such, these matters are not at issue in this proceeding. On April 2, 1992, Petitioner's investigator, J. L. Graham (Scholtz), scheduled an office inspection and audit for Respondent's brokerage activities. This audit was not conducted as Respondent had car trouble on that day and was unable to reschedule it prior to the time that Investigator Graham appeared at Respondent's office. Approximately three weeks later, April 23, 1992, Investigator Graham made on unscheduled visit at Respondent's office. The audit revealed that some of the bank and accounting records which investigator Graham needed were not at the office as Respondent had taken some of the bank and accounting records to her home after the office was burglarized. Another audit inspection was to be conducted two days later but Respondent was unable to keep that appointment because of a scheduling conflict with an appointment with her attorney. On April 21, 1991, Respondent resigned from the Greater Tampa Association of Realtors (the Association). Respondent's name continued to be carried on the Association's roll because her dues were paid through the end of the 1991 calendar year. Respondent utilized the Association's stationery after her resignation during 1991 but whited out the association's letterhead designation on most of the correspondence which left her office. On occasion, a few letters were inadvertently sent out with the Association's letterhead however there was no attempt by Respondent to defraud or otherwise hold herself out as a member of the Association.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent Rozelle be required to pay a fine of $500.00 payable within thirty days of the entry of the Final Order herein. This recommendation is premised on the finding herein that Respondents filed unlawful liens affecting the title to Clesi's property in violation of Section 475.25(1)(a) and 475.42(1)(j), Florida Statutes. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of September, 1993. COPIES FURNISHED: Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark A. Neumaier, Esquire Post Office Box 8623 Tampa, Florida 33674-8623
The Issue Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found. Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm 8each, Florida. Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct its operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease and occupy facilities appropriate for the storage, use, and repair of aircraft. Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.) These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof. Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes. When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons. Petitioners are responsible for providing all required inspection, maintenance, and repair services to the aircraft, subject to reimbursement by the owners. The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft. Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft. Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation. Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services. Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft. Petitioners' purchasers properly pay sale tax under Chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed. Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes. Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes. Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the time of purchase is immaterial, since the purchase was not for resale. The issues thus presented herein are: whether the agreements are taxable transactions, as disputed in Paragraphs 14 and 15; and whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the time of purchase, as disputed in Paragraph 16. The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978: Tax $11,144.68 Penalty 557.22 Interest 1,652.86 Total $13,354.76 The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order. Petitioners have paid no part of the foregoing assessment. Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with interest computed to reflect the passage of additional time. ENTERED this 20th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John A. Gentry, III, Esquire David K. Miller, Esquire Moyle, Gentry, Jones, Flanigan Assistant Attorney General & Groner, P.A. Department of Legal Affairs Post Office Box 3888 The Capitol, LL04 West Palm Beach, Florida 33402 Tallahassee, Florida 32301
Findings Of Fact At all pertinent times, respondent Karl G. Roebling was licensed by petitioner as a real estate broker, holding license number 0159045, and the parties so stipulated. In January of 1981, respondent Karl G. Roebling met William Fryar, at all pertinent times the owner of all of the stock of Best Move, Inc., which owned, in turn, all of the stock of respondent Ad Data/Orl, Inc. For a new "rental list service" business he was founding, Mr. Fryar "needed a. . .real estate broker. . .[T]he primary concern was that. . .complaints be serviced in an orderly manner." (T. 12) Mr. Roebling understood Mr. Russell, retained as counsel to Ad Data/Orl, Inc., to say that the arrangements proposed by Mr. Fryar were in conformity with Florida law. Mr. Roebling was not aware of any requirement that contract forms be sent to the Florida Real Estate Commission (T. 20), but did ask about the legality of Ad Data/Orl's contracts with customers. Mr. Roebling, who lived in Casselberry at all pertinent times, agreed to travel to the Ad Data/Orl office in Orlando and be in the office there four hours a week: from ten till noon Tuesdays and Thursdays. Beginning in late January or early February of 1981, Mr. Roebling did in fact keep these hours and more in Ad Data/Orl's Orlando office. He received compensation of $300 monthly for his efforts. On or about February 19, 1981, he signed a form affidavit of knowledge and consent for multiple certificate of a real estate broker as president of Ad Data/Orl, Inc. This document was submitted to the Board of Real Estate, as it was then known, unnotarized. By his estimate, there were "175 satisfactorily settled complaints during [his] tenure in Orlando. . .about a seven percent complaint ratio." (T. 17) He did not handle moneys himself. In May of 1981, Mr. Fryer purchased a similar business in Tampa from a Mr. Pearson. At first, he continued to operate it under an agreement with William Myers, a licensed real estate broker, but the decision was soon made "to make the Tampa operation a branch office of Ad Data/ORL," (T. 22) and Mr. Roebling obtained a branch office license to that end. Under an agreement with Mr. Fryar, Mr. Roebling visited the Tampa office three times a week on average from May or June of 1981, till early October of that year, and handled complaints there just as he did in Orlando. For his work in Tampa, he received an additional $200 monthly. His handling of complaints was in accordance with certain policies known to other Ad Data/Orl employees who assisted him, some of whom in the Tampa office were licensed real estate salespersons. Among these employees, however, "the turnover was brisk." (T. 54) By the last week in September, Ad Data/Orl had run up a bill of some eleven and a half thousand dollars at what was then the Orlando Sentinel Star, and Mr. Fryer told Mr. Roebling that "he was going to. . . 'stiff' the Sentinel Star and that other people were benefiting from the bankruptcy laws and now it was his turn." (T. 31) After several arguments with Mr. Fryer, Mr. Roebling resigned from Ad Data/Orl on October 6, 1981, and so advised petitioner by letter written the following day. Respondent's Exhibit No. 1. For about ten days before that, he was denied access to complaints and other records. In fact, Mr. Roebling never had a key to the Tampa office, even though his name and the fact that he was a real estate broker appeared on the window. At no time did he see correspondence from or deal with Mr. Schauseil or Ms. Holland. Complaints had averaged about five per week at the Tampa office, but some weeks there were none. Three days before Thanksgiving, the Tampa office of Ad Data/Orl closed. At his wife's suggestion, Richard J. Schauseil telephoned Ad Data/Orl's Tampa office on August 31, 1981, then went down, paid a $45 fee, and signed a document that read, in part, as follows: This receipt by Ad Data Orl, Inc. is good for rental information for FOUR MONTHS. Company will use every available source to obtain rental information one of which is local newspapers, however company is not responsible for any misinformation supplied by such sources. No warranties expressed or implied other than as stated herein are made. Entering into any document to occupy a rental unit will be solely through the efforts of the prospective tenant [sic] and landlord. Company is not responsible for any losses of any nature whatsoever. This receipt is non-transferable and non-assignable. Subscription to services is non-cancellable, however company reserves the right to terminate this agreement for customer abuse or misuse of services. Ad Data Orl., Inc. does not appraise, inspect or show property, however rental information will be updated on a timely basis to ensure reasonable accuracy. Company attempts daily contact with all cooperating landlords although customer is reminded that ALL landlords may not be available to be reached every day. Landlords who are not contacted within 72 hours of most recent prior contact will have their properties designated inactive and properties so designated are considered current. If the rental information provided under this contract is not current or accurate in material aspect, you may demand within 30 days of this contract date a return of the fee paid. If you do not obtain a rental you are entitled to receive a return not to exceed 75 percent of the fee paid, if you make demand within 30 days of this contract date. CUSTOMER COMMITMENT As a purchaser of Ad Data, Orl., Inc. Services I realize that locating a rental unit to suit one's particular needs may not always be accomplished immediately and I hereby agree to make a continuing bona fide effort. 1) to contact the company's above described vacancy department (238-7916 9 a.m. til[l] 6 p.m., closed Sunday) on a daily basis to obtain information on additional rental units. 2) to conscientiously attempt contact with ALL prospective landlords whose phone numbers I receive and 3) To use the service diligently for no less than 21 days consecutively before requesting any refund of fees paid for services and to make any request for refund in writing directed to the broker. There is a ten dollar charge to replace lost receipts. Exhibit A to Schauseil deposition. Stamped in red and signed by Mr. Schauseil was the following statement: "I HAVE BEEN TOLD THAT I MUST UTILIZE THIS SERVICE DILIGENTLY IF I EXPECT TO LOCATE A RENTAL. I WILL CALL OR VISIT THE OFFICE OF AD DATA/ORL., INC. FOR 21 DAYS IN A ROW OR FORFEIT ANY MONIES PAID FOR SERVICES." "[T]he Department of Professional Regulation employee responsible for reviewing rental company contracts . . .did not review nor receive the [foregoing] contract. . ." Affidavit of Mr. Carpino. 1/ Mr. Schauseil dealt with somebody who gave his name as Eric on August 31, 1981, and at various other times subsequently. After telephoning the Tampa office on 21 consecutive working days, the Schauseils wrote a letter requesting a 75 percent refund and sent it certified mail. After they got a receipt indicating the letter had been signed for by a Brian Ballweg on September 28, 1981, they telephoned and were told that Mr. Roebling would be in Wednesday to approve refunds. The Schauseils never got their refund. When they asked for Mr. Roebling's telephone number in Orlando, the information operator told them there was not one. Then as now Mr. Roebling's home number was listed in the Casselberry-Winter Park directory. At one point Eric told Mr. Schauseil that nobody who worked at Ad Data/Orl, Inc. used his real name. Mr. Roebling's denial that he was aware that any Ad Data/Orl employee used an alias has been credited, however. On or about September 1, 1981, in Ad Data/Orl's Tampa office, Mary Jill Holland signed a form contract like the one Mr. Schauseil signed, and signed the same statement stamped in red on the form. She, too, telephoned regularly, calling Ad Data/Orl's Tampa office 21 consecutive working days. She sent a certified letter requesting a refund which B. Ballweg signed for on October 1, 1981. In subsequent telephone calls, she was given the runaround but she could not remember having heard Mr. Roebling's name at any time before she was deposed in connection with the present proceedings. She never received a refund.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke any registration certificate issued to respondent Roebling for AD DATA/ORL, INC. That petitioner impose an administrative fine against respondent Roebling in the amount of two thousand dollars ($2,000.00) DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1983.
The Issue The issues to be resolved in this proceeding are two-fold. First it must be determined whether Infiniti Realty, LLC (Infiniti) is guilty of having employed persons as sales associates who do not hold a valid and current licenses as sales associates. Secondly, it must be determined whether those individual sales persons, the Respondents in this case, operated as sales associates for any person or entity not registered as their employing broker, in violation of Subsections 475.42(1)(b)and (e), Florida Statutes (2002) and, derivatively, in violation of Subsection 475.25(1)(e), Florida Statutes (2002). If the violations or any of them are proven, it must be determined what if any penalty should be imposed on the Respondents' real estate licensure.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the statutory provisions pertaining to real estate licensure and to persons and entities holding real estate licensure and practicing the profession of real estate in Florida both as sales persons and brokers, in accordance with Chapters 455, and 475, Florida Statutes (2002), and rules promulgated thereunder. The Respondent, Infiniti was, at all times pertinent hereto, a real estate corporate brokerage licensed in Florida holding license number CQ1015795. The other named Respondents, at all times pertinent hereto, have been real estate sales persons licensed in the State of Florida. Infiniti is located at 511 North Oceanshore Boulevard, Flagler Beach, Florida 32136. The Respondents all practice their profession in Flagler Beach, Florida. The broker for Infiniti is Ms. Carolyn Cass-Lamore. The owner, a licensed sales person, is Mr. Sean O'Neill, who organized the new real estate brokerage known as Infiniti Realty, LLC in late 2002. Most of the staff, including the Respondents in question, had formerly been employed as sales persons at Connie Boyle Realty, located in the Flagler Beach area. The Respondents became increasingly dissatisfied with their practice and with business and working conditions at Connie Boyle Realty, because they felt that the business was not being properly operated. Consequently, they elected to leave Connie Boyle Realty and form their own firm, with Mr. O'Neill as owner and Ms. Cass-Lamore as the licensed broker. With this in mind, the Respondents all executed "forms 2050," which provide for a change of employer registration for sales persons and/or the means by which sales persons inform and record with the Petitioner agency their change of employment from one broker to another broker or brokerage. These forms were completed after consultation between Ms. Cass-Lamore and Mr. O'Neill on Friday, December 27, 2002. The Respondents Mr. O'Neill and Ms. Cass-Lamore had to act quickly to change the registration with the Department because a newspaper advertisement announcing the advent and operation of Infiniti Realty was published, or they learned that it was to be published, one or two weeks before they had requested it to be published. Consequently, they had to act hurriedly to inform Ms. Boyle that they were leaving the employ of her firm and to also file their appropriate change of registration forms with the Real Estate Commission (Commission), because they would have to get into business sooner than they had originally planned with the new firm. In any event, the change of registration forms were completed on December 27, 2002. Mr. O'Neill was to file the forms with the Real Estate Commission. Consequently, on that day, Ms. Cass-Lamore faxed the forms for all the Respondents to Mr. O'Neill in Philadelphia. He, in turn, dispatched the forms to the Petitioner agency by Federal Express from Philadelphia, for overnight delivery, to be received by the Commission on December 30, 2002, in order to comply with the statute regarding changes of registration and changes of employing brokers. This fact is supported by Mr. O'Neill's testimony and that of Ms. Cass-Lamore, as well as evidence of the transaction obtained by Mr. O'Neill and submitted in the form of Petitioner's Exhibit Nine, in evidence. The relevant documents for change of registration were also sent by fax to the local Board of Realtors for Flagler Beach. The Commission registered Infiniti as a corporation and Ms. Cass-Lamore as the broker, but for some reason did not immediately register the above-named Respondents, Ms. Mulligan, Ms. Turner, Ms. McDaniel, Mr. Steven Thomas, and Mr. O'Neill as being employed by the broker and corporation. In early January 2003, however, approximately January 4th, Mr. Thomas, one of the Respondents looked for his registration status on the Agency's website and, at that point, observed that he and the other Respondents had indeed been registered as being employed as sales agents with Infiniti. All the Respondents were thus notified that their status was active and legal at that point, in order to practice with Infiniti. For unknown reasons at a later time the registrations of the Respondents were either deleted from or not completed in the records of the Agency and Infiniti and the other Respondents were required to resubmit the form 2050. As result of contact with the Petitioner's investigator, this fact and the apparent lapse of registration (after registration had been originally recorded for the Respondents with Infiniti) resulted in charges being filed against the Respondents for practicing with a new broker without being properly registered as such. The greater weight of the evidence establishes that the Respondents genuinely believed that they were properly licensed. They exercised due diligence in filing the required documents to establish that their licenses were transferred or were to be transferred to Infiniti. Mr. O'Neill timely dispatched the required transfer documents to the Commission by Federal Express, overnight delivery, and it is most likely given the facts and circumstances proven, that the documents were received by the Commission. This is especially the case, given Mr. Thomas' testimony that in the first week of January he inquired of the Commission's website and observed that all of the Respondents were recorded thereon as having active licenses with Infiniti at that point. Sometime later, for unknown reasons, their names were apparently deleted from the Agency's record as being active licensee with Infiniti. The testimony of Mr. O'Neill and Mr. Thomas is accepted as credible in this regard. It is thus determined that the Respondents, due to efforts of Mr. O'Neill and Ms. Cass-Lamore, timely and reasonably exercised diligence in filing the required licensure transfer documents with the Real Estate Commission and the Respondents' names were recorded as having been transferred as to their licensure to the Infiniti brokerage. If their names were then deleted from the Agency's records sometime later, requiring them to be re-entered, effective February 11, 2003, it can only be presumed to have occurred through some ministerial error or omission. It may be, as Ms. Mulligan, in her testimony, opined, that only a portion of the licensure information was originally entered in the Commission's computer file and that the entirety of it was either mis-placed or entered much later.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is therefore RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding that the Respondents are not guilty of the statutory violations charged and that the administrative complaint be dismissed in its entirety. DONE AND ENTERED this 7th day of October, 2004, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate 400 West Robinson Street, Suite N-801 Orlando, Florida 32802 Steven W. Johnson, Esquire 100 South Bumby Avenue, Suite B Orlando, Florida 32803 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate 400 West Robinson Street, Suite N-802 Orlando, Florida 32802
Findings Of Fact Angelo Ciciretti is, and at all times material to this case was, a licensed real estate broker in the. State of Florida, licenses #0262612 and #0264641, for Auction World, U.S.A. Inc., 5245 Ramsey Way #9, Ft. Myers, Florida 33907 and Shamrock Realty & Associates, Inc., 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. Shamrock Realty & Associates, Inc. is, and at all times material to this case was, a corporation registered as a real estate broker in the State of Florida, license #0264446, 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. In 1989, Jerry R. Stephenson, a licensed real estate salesman employed by N. J. Prasser Realty, Inc., sold a parcel of land to Darryl and Pamela B. Atherly, who resided out of state, and intended to construct a residence on the property and move to Florida. A commission was paid on the sale of the property. Mr. Stephenson also in 1989, and subsequent to the Atherly's purchase of the property, introduced the Atherly's to Dennis A. O'Key, a builder. Mr. Stephenson was still employed by N. J. Prasser Realty at the time of the introduction. Mr. O'Key and the Atherly's discussed the costs of building a home for the couple. The evidence fails to establish the existence of any agreement between Mr. O'Key and Mr. Stephenson related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house, and further fails to establish the existence of any like agreement between Mr. Stephenson and the Atherly's, although there is some evidence that the Atherly's, longtime friends of Mr. Stephenson, did suggest that Mr. Stephenson would be compensated for his assistance. At some time subsequent to the Atherly's visit with Mr. O'Key, O'Key ceased building homes. Upon the next contact with the Atherly's, Mr. O'Key referred the couple to R. Fry Builders, Inc., another local home builder. The evidence fails to establish the existence of any agreement between Mr. O'Key, Mr. Fry or the Atherly's related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house. On February 28, 1990, the Respondent applied to have Mr. Stephenson's license transferred to Two Sisters real Estate, Inc., where Respondent was employed. The licensure transfer became effective on March 8, 1990. On or about April 10, 1990, the Atherly's entered into a contract with R. Fry Builders, Inc., for the construction of the Atherly home. The contract makes no provision for the payment of any commission or referral fees. The home was built and the Atherly's took occupancy of the structure. No commission or referral fees were paid by either Mr. Fry or the Atherly's. On or about July 12, 1990, by certified letter, the Respondent contacted R. Fry Builders, Inc., and demanded payment of $4,077.50 as a referral real estate commission. The letter provided that a claim of lien would be filed if no response was received within ten days from the letter's date. The Respondent received no payment from R. Fry Builders, Inc. On or about July 27, 1990, the Respondent placed a claim of lien on the Atherly's home. The lien was recorded in the Lee County, Florida official records book. The Respondent filed the lien for the purpose of collecting the referral commission from the Atherly's. On or about April 9, 1991, the Respondent released the lien and filed the release of lien in the Lee County, Florida official records book. The lien was released after Mr. Stephenson discussed the matter with the Respondent and urged him to withdraw the lien. The Respondent collected no referral commission from the Atherly's. The Respondent has filed no civil action to collect any fees or commissions due from any of the parties material to this case. There has been no judgement entered which would entitle the Respondent to have placed a lien on the Atherly's home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the license of Respondent Angelo Ciciretti for a period of one year and imposing a fine of $1,000 to be paid within thirty days of rendition of the Final Order in this case. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX CASE NO. 91-3257 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esq. Department of Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 W. Robinson Street Orlando, Florida 32801-1772 Angelo Ciciretti Shamrock Realty & Associates, Inc. 812 East Cape Coral Parkway Cape Coral, Florida 33904
