Findings Of Fact Respondent Donald E. Swagler is now and was at all times material a licensed real estate broker or broker/salesman in the State of Florida, having been issued license number 0139756, in accordance with Chapter 475, Florida Statutes. At all times alleged in the Administrative Complaint, respondent Donald Swagler was licensed and operating as a qualifying broker for and an officer of respondent Swagler Realty, Inc., which is now and was at all times material a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0169035, in accordance with Chapter 475, Florida Statutes. At all times material, Fern Z. Taylor was a licensed real estate broker with an office in Bonita Springs, approximately a twenty-minute drive south from the offices of Swagler Realty Company in Ft. Myers. On April 10, 1980, Andrew W. Kuchmaner was working part-time as a licensed real estate salesman in the employ (as that term is defined in Section 475.01(2), Florida Statutes) of Swagler Realty Company. Kuchmaner was a new salesman and had not yet had occasion to present a buyer's purchase offer to a client seller. During the early months of 1980, Kuchmaner was also working in the employ of, and receiving a salary from, Jim Walter Homes Company. Philip R. and Susan B. Workman first met Kuchmaner in January or February 1980 while visiting a Jim Walter's Homes sales office in Ft. Myers where he was working in his capacity as a Jim Walter Homes salesman. Kuchmaner advised the Workmans to find and purchase a lot for the Jim Walter home they had selected, and then they could purchase the Jim Walter home. Jim Walter Homes Company requires lot ownership prior to building one of their homes. Prior to selecting a lot, the Workmans had already decided on the Jim Walter home they were going to purchase, and Kuchmaner was going to do the paperwork for Jim Walter. Throughout the first quarter of 1980, the Workmans searched for a lot on which to construct their home in the Bonita Springs area of southern Lee County. During their search, the Workmans came upon a vacant lot with a sign saying it was for sale by Fern Z. Taylor. Upon seeing her real estate for sale sign, the Workmans went to Fern Taylor's office to inquire about the property and seek her assistance in their purchase of a lot in the Bonita Springs area. Fern Taylor advised the Workmans that, in addition to the lot they had already seen bearing her sign, she had Dust that morning listed and had for sale another lot in the Bonita Springs area which they would be interested in seeing. Earlier that same morning, Taylor took a long distance telephone call from a Charles A. Bennett, a resident of Arizona. Bennett said he had a lot he wanted to sell and gave Taylor the price ($7,000) and a description--Lot 20, Block E, Rosemary Park No. 2, in Bonita Springs. Bennett had not seen the property in some time and gave no landmarks or street address for Taylor's guidance. Back in 1925, Rosemary Park No. 2 was subdivided into eight blocks of 24 140' x 50' lots each and two larger blocks containing 16 larger 162' x 300' lots each. One of the smaller lots bore the legal description: "Lot 20, Block E of Rosemary Park No. 2 according to the Plat thereof recorded in Plat Book 6 at Page 30, of the Public Records of Lee County. This is the lot Bennett owned and was trying to sell. It is located on First Street. In 1926, Rosemary Park No. 2 was re-subdivided. The two larger blocks of the prior subdivision were re-subdivided into eight blocks of 24 140' x 50' lots each. Unfortunately, in a stroke of singular lack of vision, the new blocks and lots were designated with the same letters and numbers already assigned to the smaller blocks and lots in the original 1925 subdivision. As a result, there is another lot in Rosemary Park No. 2 designated as Lot 20, Block E: Lot 20, Block E, Rosemary Park, resubdivision of the East 1/2 of No. 2, according to the plat thereof, as recorded in Plat Book 8, Page 32, in the Public Records of Lee County, Florida. This other Lot 20, Block E, is owned by the Fyfes of Maine and is on Fifth Street. Taylor, who was quite busy, quickly checked a plat book in her office to locate the lot and the tax rolls to attempt far to verify Bennett's ownership and left to put her sign on the lot she thought Bennett owned and was trying to sell. Through a combination of the confusing legal description, the incomplete description and paucity of information Bennett gave Taylor, and Taylor's admitted negligence, Taylor put her for sale sign on the Fyfes' lot on Fifth Street instead of on Bennett's lot on First Street. Taylor had no listing agreement with the Fyfes, and the Fyfes' property was not for sale. Fern Taylor drew a map for the Workmans providing them with directions to this purportedly newly listed lot on which she had placed her "For Sale" sign. In reliance on Fern Taylor's map and representations as to her listing agreement, the Workmans drove to the Fifth Street lot and viewed the property as well as Fern Taylor's "For Sale" sign. Approximately one week after seeing the Fifth Street lot, the Workmans summoned Andrew Kuchmaner to Bonita Springs to view the lot and give them his opinion as to how the Jim Walter home they had previously selected would sit on the lot. The Workmans had their minds pretty well made up that they wanted to purchase the Fifth Street lot before summoning Kuchmaner. Kuchmaner never took the Workmans to any property but, upon their request, traveled to Bonita Springs to meet them and was thereupon shown the Fifth Street lot. While viewing the Fifth Street lot, Kuchmaner advised the Workmans that the Jim Walter's home they had selected would sit nicely on that lot. He also told the Workmans for the first time that he had a real estate license and would be glad to help them out with placing an offer for the lot on their behalf. The Workmans used Kuchmaner to make their $6,000 offer on the lot to save time because it was late in the afternoon and they lived in North Ft. Myers. When Fern Taylor first met Kuchmaner, he had been represented to her by the Workmans as a Jim Walter salesman. Kuchmaner went to Taylor's office and requested she prepare the contract because he would have to go all the way back to Ft. Myers to write it up. Taylor provided Kuchmaner with the legal description "Lot 20, Block E, Rosemary Park #2" and advised him he would have to write his own contract. Kuchmaner also proposed to Taylor that they not tell Swagler or Swagler Realty about the sale so they could divide Swagler's quarter of the 10 percent commission ($150 of the total $600 commission). Taylor refused and told Swagler what had happened. Swagler had an angry confrontation with Kuchmaner and was about to fire him, but Kuchmaner begged for a second chance and promised not to try to cut Swagler out of a commission again. Swagler relented and kept Kuchmaner on as a salesman. Kuchmaner filled out a contract on a Swagler Realty form and brought it to Donald Swagler for his review. He advised Swagler that he had gotten the legal description from Fern Taylor and had been to see the property. Swagler generally does not sell property in the Bonita Springs area and is not familiar with the area. He relied on Taylor to provide an accurate legal description of the property being sold. Kuchmaner hand delivered the contract offering to purchase the Bennett parcel to Taylor. Taylor checked the contract before she sent it to Bennett to see that the legal was the same that she had, and it was. She also checked it again when it was sent back from Bennett. Fern Taylor had received and checked the contract, title insurance binder, seller's closing statement and a copy of the warranty deed from Bennett to Workman prior to the closing The Workmans had the property they thought they were purchasing surveyed by William R. Allen, a registered and licensed land surveyor. He received the request to survey the property from Susan Workman. Over the phone, she advised Mr. Allen she had purchased a lot in Rosemary Park, Specifically lot far 20, block E. Mr. Allen informed Mrs. Workman that there are two Block E's in Rosemary Park and that they should be careful. He inquired as to which street she had purchased property on and was told, "We're on Fifth Street." Allen surveyed the Fifth Street lot and certified his survery, using the actual legal description of the Fifth Street (Fyfes') lot. Allen never saw any document with the legal description of the Bennett lot. Fern Taylor did not know that the Workmans had ordered a survey and did not see a copy of the survey until well after the closing. Although she attended the closing, she saw no discrepancies among the documents cursorily reviewed at the closing. Neither did the Workmans or the closing agent. The evidence was not clear whether there was a copy of the survey among the documents at the closing. The lender (Jim Walter Homes) and the title insurance company got a copy of the survey before closing. Neither of their professionals noticed that the legal description on the survey (the Fyfe lot) did not match the legal description on the deed and other documents (the Bennett lot). When a real estate broker has placed his sign ("For Sale") on a parcel of property, it is a reasonable conclusion that he is authorized to sell that parcel. It is customary for a broker to rely on the listing broker to provide a correct legal description for the property they have listed. At no time before the closing did Swagler or Kuchmaner have reason to suspect that the Workmans were purchasing a parcel of property different from the parcel they believed they were purchasing. Neither Swagler nor Kuchmaner were at the closing of the Workmans' purchase. But their presence would not have made any difference. It is not the real estate broker's or salesman's lob to scrutinize the documents being signed to make sure the legal descriptions on all the documents match (unless he has reason to believe the legal descriptions might be wrong.) He has the right to rely on the other professionals--the listing broker (especially since Fern Taylor was familiar with the Bonita Springs area and Swagler was not), the lender's attorney, the title company, the closing agent and, if any, the surveyor and the buyer's attorney. Fern Taylor and perhaps others were culpably negligent. Swagler and Kuchmaner were not. What happened to the Workmans is not their fault.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against respondents, Donald E. Swagler and Swagler Realty Company, in this case. RECOMMENDED this 9th day of February, 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 9th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3502 These rulings on proposed findings of fact are made in compliance with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5. Rejected as contrary to facts found. (Kuchmaner did not "solicit" or "obtain" them.) 6.-14. Accepted and incorporated. 15. Rejected as contrary to facts found. (Taylor's "investigation" or "attempt" to ascertain the legal description was deficiently and negligently performed.) 16.-17. Accepted and incorporated. First sentence, rejected as incomplete ("compare the deed" with what?); second sentence, rejected because it was not proved Taylor had access to a copy of the survey before the closing. Rejected as unnecessary and potentially misleading. (A Final Judgment was entered; Taylor paid the portion against her; the other defendants have not paid the portions against them.) Rejected. Swagler Realty Company was a defendant in the case; Donald E. Swagler was not. 21.-24. Accepted and incorporated. Rejected as not proved whether they "failed," "refused" or "neglected." (The fact is that neither has paid the Workmans any money in satisfaction of the portion of the Final Judgment against Swagler Realty Company.) Accepted but unnecessary. B. Respondents' Proposed Findings Of Fact. 1. Accepted but unnecessary. 2.-10. Accepted and incorporated. 11. Accepted but unnecessary. 12.-23. Accepted and incorporated. 24.-28. Accepted and incorporated. 29. Accepted but unnecessary. 30.-36. Accepted but cumulative. 37.-42. Accepted and incorporated, along with additional findings. 43. Accepted but unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Fl 32802 J. Michael Hussey, Esquire 3443 Hancock Bridge Parkway Suite 501 North Ft. Myers, Fl 33903 Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Harold Huff Executive Director Division of Real Estate Post Office Box 1900 Orlando, Fl 32802
Findings Of Fact The Respondent, Nelye Bunch, is a licensed real estate broker, having been issued license number 0315615. The Respondent, AA Real Estate, Inc., of Kissimmee, is a licensed corporate real estate broker, having been issued license number 0214153. In December of 1980, Grace Makuch, a licensed real estate salesperson, entered into an employment agreement with the Respondents, whereby Grace Makuch became employed as a real estate salesperson in the brokerage office of the Respondents. Pursuant to this employment, Grace Makuch and the Respondents entered into an oral agreement in which Grace Makuch would be compensated by receiving 60 percent of the selling broker's commission on every real estate sale she brought into the office. On or about March 6, 1981, Grace Makuch negotiated a contract for the sale of real property on Nova Road in Osceola County, Florida, between Earl Croft and his wife, as sellers, and Larry Henninger, as buyer, for $96,200. This transaction closed in April of 1981. The Respondents received the real estate commission due, in the amount of $4,810, and paid Grace Makuch $1,154.40. Under the employment agreement, Grace Makuch should have been paid $2,886. Demand for the balance due of $1,731.60 has been made by Grace Makuch and her attorney, but nothing further has been paid by the Respondents. In February of 1981, Grace Makuch negotiated a contract for the sale of real property on Donegan Avenue in Kissimmee, Florida, between Michael F. Sweeney, Trustee, as seller, and Dominick Tattoli and his wife, as buyers, for $115,000. This transaction closed in May of 1981. The Respondents received the real estate commission due, in the amount of $5,000 and tendered to Grace Makuch a check for $250. Under the employment agreement, Grace Makuch should have been paid $3,000; thus, she refused to accept the check for $250. Demand for the full amount of her share of the commission on this transaction in the amount of $3,000 has been made by Grace Makuch and her attorney, but nothing has been paid by the Respondents.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 0315615 held by Nelye Bunch, be revoked. It is further RECOMMENDED that license number 0214153 held by AA Real Estate, Inc., of Kissimmee, be revoked. THIS RECOMMENDED ORDER entered this 8 day of October, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of October, 1982. COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741
Findings Of Fact Donald L. Stuart is a real estate broker registered with the Florida Real Estate Commission. He holds license number 215732 with expiration date of 3/3/77. In the renewal application received April 3, 1975 by FREC, Stuart reported his business address to be 407 S. Old Dixie Highway, Vero Beach, Florida. In early August, 1976 an investigator for FREC visited the address on South Old Dixie Highway and found a vacant house with no real estate broker's sign displayed. Inquiry in the neighborhood revealed the house had been unoccupied for a considerable period of time. By Election of Rights form submitted November 26, 1976, Stuart acknowledged receipt of the Administrative Complaint by checking Block 1 in which he acknowledged having read the explanation of rights, did not dispute the allegations made in the Administrative Complaint, and requested a hearing. Notice of Hearing was forwarded by Certified Mail, to the same address, viz. 407 S. Old Dixie Highway, Vero Beach, Florida to which the Administrative Complaint had been forwarded.
Findings Of Fact At all times relevant thereto, Respondent, Oswald S. Welsh, held real estate broker license number 0301189 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He presently is broker for Welsh International Realty, Inc. located at 4684 Northwest 183rd Street, Carol City, Florida. Prior to his involvement with Welsh International Realty, Inc., Respondent was employed as a salesman with Pedro Realty, Inc. until on or about September 15, 1980. Respondent mailed the required papers to establish his own real estate firm to the Board of Real Estate in Orlando, Florida, shortly after he left Pedro Realty, Inc. He assumed that he was authorized to commence business as a broker once the papers were mailed. This assumption was based upon his understanding of the practice followed by other brokers in Dade County. However, because the papers were mailed to Orlando rather than the Department of Professional Regulation in Tallahassee, his registration as a broker did not become effective until November 17, 1980. Respondent engaged the services of an attorney in Hialeah, Florida, to incorporate his real estate firm. The articles of incorporation were sent to the Department of State by letter dated September 19, 1980. Because of an error in the papers, the application was returned to Welsh's attorney on October 1, 1980. The incorporation was ultimately approved on October 22, 1980. Prior to the approval of the incorporation, a salesman for Respondent's firm negotiated a sale of real property on October 17, 1980. Welsh received no proceeds or other value from the closing. Welsh is a native of Jamaica who has lived in the United States since 1963. He became a United States citizen in January, 1982. His real estate firm presently employs approximately twelve persons, of whom seven are full time. Respondent did not intentionally violate the law but appeared to have relied upon the advice of his attorney as to when he could begin to operate his business in a legal manner. Because of errors in filing the papers, or paper not properly filled out by his attorney, he unintentionally began operating prior to approval by the State.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count II of the Administrative Complaint and issued a public reprimand. DONE and ENTERED this 8th 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 8th day of July, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation Board of Real Estate 130 North Monroe Street Tallahassee, Florida 32301 William H. Davis, Esquire 111 NW 183rd Street Miami, Florida 33169 Carlos B. Stafford Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact Petitioner is the state licensing regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto. During times material, Respondent was a licensed real estate salesman in Florida, having been issued license number 0319604. The last license issued Respondent was as a salesman, c/o Referral Realty Center, Inc. (herein Referral) at 8974 Seminole Boulevard, Seminole, Florida. On December 1, 1988, Respondent entered into a management agreement with Madeira Beach Yacht Club Condominium Association, Inc. (herein Madeira) to serve as property manager. Respondent assumed the property manager position with Madeira in June of 1987, which was formalized by a written agreement in December 1988. While acting as property manager for Madeira, Respondent handled the rental transactions of individual units for owners. In return for her services, Respondent was compensated based on a commission of 10% to 20% of the monthly rental. On at least one occasion, Respondent rented an individual unit for owners for a term greater than one year. Respondent was aware that she was renting the one unit for a term in excess of one year. Respondent signed leases for units belonging to individual owners as the rental agent or representative. Respondent used the commissions that she received to defray operating expenses for her rental business such as cleaning fees for the units and for personal compensation. Respondent maintained a bank account at the First Federal of Largo Savings and Loan Association entitled "Dorothy K. Livingston Rental Account" for her rental business. Deposits to that account were rental monies received from tenants from which disbursements were made to unit owners and the remaining commissions went to Respondent as compensation. The rental account maintained by Respondent was neither an account with her employing real estate broker, nor was it an escrow account. Respondent placed security deposits that she received from tenants in the referenced rental account that she maintained. Respondent did not inform her employing broker of the receipt of security deposits nor did she discuss with her employing broker any of her activities involving rental of units for owners at Madeira. However, there is credible testimony evidencing that her broker was knowledgeable of Respondent's activities relative to her rental of units for owners. During May 1989, Respondent placed her real estate license with Referral Realty Center (Referral) as her employing broker. She did so in order to receive payment for referring prospects to Referral. On or about May 22, 1989, Respondent entered into an independent contractor agreement with Referral. That agreement provided in pertinent part that: Independent contractor agrees that Independent contractor will not list any real estate for sale, exchange, lease or rental... . Independent contractor agrees to refer all prospective clients, customers, buyers and sellers of which Independent contractor becomes aware to the Center... . Independent contractor agrees that so long as this Agreement is in force and effect the Independent contractor will not refer any prospective seller or buyer to another real estate broker... . 9. Independent contractor agrees to act, and to represent that he or she is acting solely as a referral associate of the Center... . While employed by Referral, Respondent also received commissions from individual unit owners at Madeira. During the time when Respondent had her license listed with Referral, she also received commissions from Referral for prospects she generated while renting units for owners and acting as property manager at Madeira. Respondent received a copy of a letter from attorney R. Michael Kennedy, addressed to J.L. Cleghorn of Building Managers International, Inc., dated September 5, 1989. In that letter, attorney Kennedy expressed his opinion that condominium or cooperative managers are exempted from the licensing provisions of Chapter 475, Florida Statutes, and that receipt of a percentage of rental proceeds would not be precluded even if the manager was salaried. The Kennedy letter erroneously states support for attorney Kennedy's opinion by Alexander M. Knight, Chief of the Bureau of Condominiums, and Knight so advised attorney Kennedy of that erroneous support by a subsequent letter to him. It is unclear to what extent Respondent apprised attorney Kennedy as to the specifics of her activities and to what extent she relied on his opinion prior to engaging in her property manager's rental and referral activities. (Petitioner's Exhibit 7.) Respondent did not seek advice from Petitioner as to whether her activities fell within the guidelines of Chapter 475, Florida Statutes. Respondent is familiar with the statutory definitions of a broker and salesman and what activities constitute brokerage and sales activities. During times material, Respondent's employing broker, David Hurd, was a licensed real estate broker in Florida, and the broker of record for Referral for procuring prospects and making referrals of real estate activities. Employment under an independent contractor agreement is considered employment under Chapter 475, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,500.00, issue a written reprimand to her, place her license on probation for a period of one (1) year with the further condition that she complete 60 hours of continuing education. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jerry Gottlieb, Esquire GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly. When LaReau leased the subject premises from Heide he entered a twelve (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2). Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D). Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: 1. That the Administrative Complaint filed herein be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure. Question number 62 reads as follows: The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF: NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE. Possible answers to question number 62 were as follows: I only. II only. I and III only. I, II and III. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the Petitioner as previously determined. DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows: Rejected as unnecessary. Included in findings 5, and 7. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced. 7. Rejected as argument. Respondent's Proposed Findings The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows: 1.-5. Rejected as conclusions of law. 6. Included in findings 8, 9, and 10. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Phillip I. Salerno 11812 Timbers Way Boca Raton, Florida 33428 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner's application for a real estate license should be denied for the reasons stated in Respondent's Notice of Intent to Deny, dated November 2, 2018.
Findings Of Fact The Commission is the state agency charged with licensing real estate brokers and sales associates in Florida. See § 475.161, Fla. Stat. On August 17, 2018, Petitioner filed with the Commission an application for a Real Estate Broker License – Out of State Experience. According to his PRO, however, he is applying for a "real estate associate license." In conjunction with the application, a lengthy and somewhat confusing record of Petitioner's administrative and criminal history in New York and Minnesota between 1995 and 2018 has been compiled and is found in Commission Exhibit 11, consisting of approximately 300 pages. Besides holding an active Colorado real estate license, he also has a mortgage originator's license issued by the State of Minnesota in 2018. The application required Petitioner to provide answers to four background questions. In response to question 1, which asks the applicant if he has ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or is currently under criminal investigation, Petitioner answered yes. In his explanation to the question, Petitioner listed four arrests, discussed below, all occurring in the State of Minnesota. Although the Notice of Intent to Deny alleges that he was convicted of a felony, the Commission now concedes that all convictions are for misdemeanors. First, on July 1, 1997, Petitioner, then 22 years old, was arrested for one felony count of criminal sexual conduct in the first degree and two felony counts of criminal sexual conduct in the third degree. In May 1998, he pled guilty to fifth degree sexual conduct, a gross misdemeanor, and was fined $900.00, sentenced to nine days in jail, placed on two years' probation, ordered to undergo sex offender treatment, and required to register as a sex offender for ten years in New York (where he had relocated temporarily) and Minnesota. Petitioner completed all conditions required by the court. In his application, Petitioner explained that the arrest and conviction were the result of "interactions with an underaged woman [a 15-year-old babysitter for his fiancee's child] that lied about her age." At hearing, he testified that he pled guilty to the misdemeanor charge because he did not have sufficient funds to continue to fight the original felony charges, and he "did not want to take the chances with the jury," even though the prosecutor admitted to the court the defendant's attorney "can kill our guys on cross-examination." He decided to "take the misdemeanor and get on with [his] life." Petitioner acknowledges that he pled guilty to a sexual offense, but it is fair to find that he wants the Commission to accept his version of events - that the girl fabricated the entire incident. Second, on July 10, 1997, Petitioner was arrested for disorderly conduct, a misdemeanor, after an "[a]rgument with girlfriend and her brother." He was found guilty of the charge and paid a $150.00 fine. Third, in October 2008, while in a divorce proceeding with his then wife, Petitioner was charged with violation of an Order for Protection for "exchanging messages with my wife on childcare/exchange matters which were allowed according to the original order. She called in and filed a complaint." The application states that the charge was later dismissed. The Commission does not dispute this representation. Finally, in November 2008, Petitioner was arrested for gross misdemeanor domestic assault against his then wife. Petitioner explained that this incident occurred after an "argument with wife (she was heavily intoxicated) that escalated." He later pled guilty to disorderly conduct, paid a $300.00 fine, and was given one year of unsupervised probation. He successfully completed all conditions imposed by the court. Question 1 requires that an applicant also report traffic offenses other than parking, speeding, inspection, or traffic signals. The Commission's PRO points out that Petitioner failed to disclose that in 1995, while a resident of the State of New York, he pled guilty to operating a motor vehicle (motorcycle) while impaired by drugs (marijuana). At hearing, Petitioner testified that he forgot about the traffic violation, as it occurred 24 years ago when he was only 20 years old. Even though the Notice of Intent to Deny does not allege that Petitioner failed to disclose his complete criminal record, the issue was tried by consent at hearing. However, Petitioner's omission of this minor item should have no bearing on whether to approve or deny the application. Question 4 asks the applicant to disclose whether he ever has had a license to practice any regulated profession revoked, annulled, suspended, relinquished, or otherwise disciplined in any jurisdiction. Petitioner answered yes. In explaining his answer to question 4, Petitioner stated that his Minnesota real estate broker license was revoked by the Department of Commerce in May 2018 for (a) failure to self-report a 2008 bankruptcy; (b) the denial in 2009 of his application for a residential general contractor's license; and a 2012 felony charge (domestic assault by strangulation of his ex-wife), which was dismissed later. The application added that due to the revocation of the Minnesota license, his Colorado realtor license "is currently in review." At hearing, however, Petitioner testified that Colorado is not taking any action on that license. The revocation order provided in part that Petitioner obtained his license by fraud and misrepresentation, he had a complete disregard for the law, and he could not be trusted to make material disclosures and otherwise comply with licensing requirements. See Comm. Ex. 11, p. 208. Obtaining a license by fraud and/or misrepresentation, and not being trusted to make material disclosures and comply with licensing requirements, are grounds for revoking or suspending a license in the state of Florida had Petitioner then been registered. At hearing, Petitioner testified that he actually had disclosed the bankruptcy and administrative action to the state when he submitted an application to transfer a brokerage license in 2009. Evidently, this contention was not accepted by the Department of Commerce. Petitioner says he "attempted" to appeal the revocation order, but the appeal was denied. In its PRO, the Commission alleges that Petitioner failed to disclose an enforcement action instituted by the Minnesota Department of Labor and Industry (MDLI) in 2009, which resulted in him voluntarily consenting to the revocation of a residential building contractor license held by Vanquish Custom Homes, LLC, a company he controlled. Although this omission is not cited in the Notice of Intent to Deny, the issue was raised at hearing without objection by Petitioner. Petitioner's response to background question 3 acknowledges that his application for a "residential general contractor's license" was denied in 2009. Also, in a letter attached to the application, Petitioner made reference to that action, although in a somewhat confusing and incomplete manner. See Comm. Ex. 11, p. 187. The letter fails to disclose that the proceeding arose in the context of an enforcement action by MDLI, which alleged, among other things, that Petitioner was untrustworthy, incompetent, and unqualified to act as a licensee's qualifying owner. The letter and application also fail to disclose that MDLI issued a consent order revoking the license, imposing a $5,000.00 suspended civil fine, and ordering him to cease and desist from acting as a residential building contractor. Had Petitioner been registered in the state of Florida, these actions would have been grounds to suspend or revoke the license. At hearing, Petitioner explained that the license lapsed around 2007, he reapplied for licensure in 2008, but he withdrew the application after MDLI issued an intent to deny. He says he took this action because he "didn't need the contractor license, and it just wasn't worth spending the money to fight it." By consent of the parties, Petitioner acknowledged that he failed to disclose a consent order issued by MDLI in 2013, which determined that Vanquish Services Group, LLC, another company controlled by Mr. Shields, had violated the 2009 consent order. Petitioner was ordered to cease and desist from any further residential building contractor violations and to pay a $5,000.00 civil penalty, of which $4,500.00 was stayed. At hearing, Petitioner testified that in an effort to procure clients, his company incorrectly advertised four trades on Angie's List, when the company was allowed no more than three trades to be advertised. He admits this was a "mistake." Two character witnesses, Mr. Hartos and Ms. Anderson, both currently licensed as realtors in Minnesota, testified on behalf of Petitioner. Both testified that they are aware of his prior administrative and criminal history. Mr. Hartos is a long- time licensed broker, who has served on the Minnesota Association of Realtors Board of Professional Standards for more than 25 years, and was Petitioner's broker and "boss" for the last five years. The other is a former employee. Based on their work experience with Petitioner, they found him to be ethical, truthful, honest, and trustworthy, and not a danger to the public. Forty-three letters of recommendation, including those submitted by the two character witnesses, all hearsay in nature, corroborate this conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for a license as a real estate broker or sales associate. DONE AND ENTERED this 15th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2019.
Findings Of Fact The Respondents have, at all times material to this matter, been registered with the Florida Real Estate Commission as real estate brokers. During 1973 and 1974, the Respondent Sol Tomberg worked at Century Realty, Inc. as a salesman and a broker. He was primarily involved in selling condominium units in a project known as Century Village in Palm Beach County, Florida. Century Village is a large condominium project. Units were much in demand during the time that Respondent was engaged to sell them, and sales activity was brisk. During 1973, David Frank was seeking to purchase a condominium unit at Century Village. He asked a friend, a Mr. Helwitz, to assist him in locating a unit to purchase. On April 16, 1973, Helwitz called Frank, who was then living in New York. Helwitz introduced the Respondent Sol Tomberg who spoke to Mr. Frank. Tomberg advised Frank that a unit was available, but that another party had an option to purchase it. Tomberg advised Frank that if the other party were paid $500.00 they would be willing to give up their option, and Frank would be able to purchase the condominium unit from the developer. In accordance with Tomberg's instructions, Frank issued a check for $1,500.00 payable to Century Village to hold the condominium unit, and a check for $500.00 to Mr. Tomberg personally to arrange the payment to the party who held the option. Frank eventually closed the condominium transaction successfully. Tomberg deposited the $500.00 check that he received from Frank in his personal checking account. He testified that he distributed it in cash to the party who held the option. It is apparent from the evidence that another party did have an option to purchase the unit which Frank ultimately purchased. There is no evidence from which it could be concluded that Tomberg realized any secret profit on the transaction, or that he did other than distribute the $500.00 payment to the party who had the option to purchase. It does appear that an option to purchase was rescinded. The evidence does establish that Tomberg did not deposit the $500.00 he received from Frank into an escrow account. During 1973, Benny Teper was seeking to purchase a condominium unit at Century Village. He enlisted the assistance of a friend, Mr. Myers, an individual who had already purchased a unit at Century Village. Apparently Mr. Myers contacted the Respondent Tomberg, and on June 6, 1973, Tomberg contacted Teper. He advised Teper that a condominium unit could be obtained, but that another party (Tomberg's mother-in-law) had an option to purchase the unit. Tomberg advised Teper that the party would be willing to give up the option for $1,500.00. Teper bargained with Tomberg, and agreed to pay $1,200.00 for release of the option in addition to the purchase price of the condominium. Accordingly, Teper sent a deposit to Century Realty to hold the unit, and a check to Tomberg for $1,200.00 to obtain release of the option. Tomberg deposited the $1200.00 in his personal checking account. He testified that he distributed it at a later date. Teper successfully closed the transaction for the condominium unit. The evidence does not establish that Tomberg realized any secret profit on the Teper transaction, or that he did other with the $1,200.00 than obtain a release of an existing option. It does appear from the evidence that another party did hold an option to purchase the unit that Teper ultimately purchased, and that the option was released just prior to the time that Teper made a deposit to hold the unit. The evidence does establish that Tomberg deposited the $1,200.00 that he received from Teper in his personal checking account rather than in any trust or escrow account. During 1972 and 1973, Adelaide Ferraro was seeking to purchase a condominium unit in Century Village. She visited Tomberg's office, and was advised that no units were available, but that Tomberg's mother-in-law had an option to purchase a unit which she would release for $1,000.00 above the purchase price. Ferraro agreed to make such a payment. She made out a $200.00 check to Tomberg and later an $800.00 check to cover the $1,000.00. She also made out a check to Century Realty to place a hold on the unit. Tomberg deposited the $200.00 check and the $800.00 check in his personal checking account. Ferraro was able to successfully close on the transaction. Tomberg actually owned the option to purchase the unit which Ferraro ultimately purchased himself. When he failed to disclose this fact to Ferraro, he concealed from her the true facts involving the transaction. Tomberg did not deposit the $1,000.00 in any trust or escrow account. During 1973, Laura Katz was seeking to purchase a condominium unit in Century Village. She contacted Tomberg, who advised her that no units were available, but that a third party who had an option to purchase a unit would be willing to give up the option. Katz agreed to pay $2,100.55 to procure release of the option, and $345.00 for certain extras that the option holder had included in the unit (a refrigerator, a stove, and carpeting). She made out a check in the amount of $2,155.00 to Tomberg, and a check to Century Realty to place a hold on the unit. Tomberg deposited the check In his personal checking account. Katz successfully closed the transaction. Tomberg testified that he distributed the money to the party who held the option. It does appear from the evidence that a third party did possess an option on the unit that Katz ultimately purchased, and that the option was released shortly before Katz made her deposit to hold the unit. The evidence does not establish that Tomberg realized any secret profit on the transaction, that he misrepresented any facts with respect to it, or that he did other with the money deposited with him by Katz than to secure release of an option. The evidence does establish that Tomberg deposited the money he received from Katz in his personal checking account rather than in a trust or escrow account. No evidence was offered with respect to a transaction in which Edna Patrick allegedly purchased a unit at Century Village as alleged in Counts 17 through 20 of the administrative complaint filed by the Real Estate Commission.
