Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, 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 5th day of December, 1989.
The Issue Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever." Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned. * * * Your answer to this will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who advised him that matters over 10 years old did not have to be disclosed. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 Filed with the Clerk of the Division of Administrative Hearings this * day of February, 1998. *Filed with the Clerk undated. -ac COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 July 21, 1999 Henry M. Solares, Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis DOAH Case No. 97-3722 Dear Mr. Solares: Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you. Please accept my apologies for any inconvenience this might have caused. Sincerely, CSH/scl Enclosures cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire CAROLYN S. HOLIFIELD Administrative Law Judge
Findings Of Fact At all times pertinent to the charges at bar, the Respondent was a licensed real estate salesman in the State of Florida, holding license number 0379661. Prior to being licensed in Florida, the Respondent was a licensed broker in Kentucky between 1979 and October 12, 1983. On October 12, 1983, by order of the Kentucky Real Estate Commission, her license in that state was revoked. Sometime in July, 1981, one Katherine E. Linton executed a contract to purchase real estate in the State of Kentucky. Respondent represented Ms. Linton as a real estate broker regarding that contract. Pursuant to the terms of that contract, Ms. Linton gave to the Respondent $1,000 as a deposit or "earnest money." The deposit was to be applied to the purchase price upon passing of title at the closing. Immediately prior to the scheduled time for the closing on the real estate (a condominium), the Respondent hand-carried a check for $130, instead of $1,000, to the closing. Because of the Respondent's failure to deliver from her custody the entire $1,000 contract deposit, for application to the purchase price, Ms. Linton, the Respondent's client, had to pay $870 extra at the closing which she was not required to do under the terms of the contract. The Respondent was owed no commission under that contract. Although the Respondent prepared an addendum to the contract to provide for a two per cent commission payable to her and her firm, that commission was to come from the corporate seller and not from her client, the buyer, Ms. Linton. In any event, the addendum was never presented to nor executed by the purchaser or anyone else, other than Respondent. Thus, no obligation to pay a two per cent commission to Respondent or her firm ever arose. In any event, although Ms. Crick maintained, at the Kentucky Real Estate Commission proceeding, that she acted under the honest belief she was owed a two per cent commission from the corporate seller of the property with regard to this transaction, she was proven not to have been entitled to such a commission and to have intentionally converted $870 of the $1,000 deposit to her personal use. It is undisputed in this proceeding that the Respondent failed to deliver the $870 contract deposit money at the time of the closing to apply to the purchase price and retained those funds in an escrow account of Pat Crick and Associates for a week or so after closing, after which time she closed that account and intentionally converted the funds to her personal use, knowing she had no contractual right to any commission derived from those funds. After Ms. Linton filed a complaint with the Kentucky Real Estate Commission against the Respondent for failure to deliver the entire deposit of $1,000 at the closing, a formal proceeding was had against the Respondent by that body. The Kentucky Real Estate Commission found, based upon testimony heard and evidence received, that the Respondent's retention of Ms. Linton's funds was both intentional and with "guilty knowledge." The Respondent converted the funds to her own use for personal reasons, without justification. The Commission thereupon ordered the revocation of the Respondent's Kentucky Real Estate Broker's License and fined her the sum of $500. The actions of the Kentucky Real Estate Commission were upheld on appeal by the Circuit Court for Jefferson County, Kentucky, on April 9, 1900. That case is now final.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, Patricia Ann Crick, have her license as a real estate salesman revoked. DONE and ENTERED this 15th day of November, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 16th day of November, 1984. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Ms. Patricia Ann Crick 1155 Lakehouse Circle Sarasota, Florida 33581 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this matter is whether the Florida Real Estate Commission may deny Petitioner’s application for a license as a real estate sales associate, and, if so, whether it is appropriate to do so based on the underlying facts.
Findings Of Fact The Commission is the state agency charged with licensing real estate sales associates in Florida. See § 475.161, Fla. Stat. On January 21, 2016, Petitioner applied to the Commission for a license as a real estate sales associate. In her application, Petitioner dutifully divulged that on December 12, 2002, the Commission revoked her real estate broker’s license. On August 16, 2016, the Commission issued a Notice of Intent to Deny notifying Petitioner that it denied her application for a sales associate license. The Commission denied Petitioner’s application based on its finding that Petitioner’s broker’s license was previously revoked by the Commission in 2002. At the final hearing, Petitioner explained the circumstances that led to her broker’s license revocation. In 2000, a Commission investigator audited her real estate trust account. The audit uncovered information that Petitioner failed to timely transfer a $1,000 deposit and properly reconcile her escrow account. Petitioner disclosed that a sales contract she was handling required the buyers to deposit $1,000 with her as the broker. The sale fell through, and the buyers did not close on the house. In May, 2000, the buyers demanded Petitioner transfer the deposit within 15 business days. Petitioner, however, did not forward the deposit out of her escrow account until four months later in September 2000. Based on this incident, the Commission alleged that Petitioner failed to account for delivered funds; failed to keep an accurate account of all trust fund transactions; failed to take corrective action to balance her escrow account; and filed a false report in violation of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule 61J2-14.012(2). Based on the charges, the Commission ordered Petitioner’s real estate broker’s license permanently revoked. Petitioner stressed that she did not steal the buyers’ money. Her mistake was in not timely transferring the deposit from her trust account. Petitioner asserted that she simply lost track of the funds. At the final hearing, Petitioner accepted full responsibility for her mismanagement. At the final hearing, Petitioner expressed that she first entered the Florida real estate industry in 1982 when she became a licensed real estate sales associate. In 1987, she obtained her broker's license. She subsequently purchased a Century 21 franchise. She conducted her real estate business until 2002 when her broker’s license was revoked. Petitioner explained that she is not seeking another broker’s license from the Commission. Instead, she is just applying for another sales associate license. Petitioner described the difference between a sales associate and a broker.5/ Petitioner stated that a sales associate works directly under, and is supervised by, a broker. The sales associate interacts with prospective buyers and sellers, negotiates sales prices, and accompanies clients to closings. Regarding financial transactions, however, the broker, not the sales associate, processes all funds related to a real estate sale. The broker, not the sales associate, transfers funds into and out of escrow accounts. In other words, the error Petitioner committed as a broker in 2000 could not happen again if she was granted a sales associate license. Petitioner further testified that during the time she worked as a sales associate, she was involved in the sale of approximately 100 houses. Petitioner represented that she never received any complaints or criticisms from any of her clients. Petitioner relayed that she became motivated to return to the real estate business following her husband’s death in 2015. Petitioner expressed that she was very good at selling houses. Real estate is her passion. She voiced that she eats, sleeps, walks, and talks real estate. Despite her misstep in 2000, Petitioner declared that she is a very honest and hardworking person. She just wants another chance to work in the profession that she loves. Currently, Petitioner works for a charitable organization. She helps administer and manage the charity’s finances. Petitioner represented that she has never failed to meet her financial responsibilities. She has always accounted for all of the funds for which she is entrusted (approximately $8 million since she began working for the charity over 20 years ago). No evidence indicates that Petitioner has committed any crimes or violated any laws since her broker’s license was revoked in 2002. At the final hearing, Petitioner presented three witnesses who testified in favor of her receiving a sales associate license. All three witnesses proclaimed that Petitioner is trustworthy, of good character, maintains high moral values, and is spiritually strong. The witnesses, who know Petitioner both personally and professionally, opined that she is honest, truthful, and has an excellent reputation for fair dealing. All three witnesses declared that the public would not be endangered if the Commission granted Petitioner’s application for licensure. Petitioner also produced six letters of support. These letters assert that Petitioner is an honorable and trustworthy person. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Commission sufficient legal grounds to deny Petitioner’s application. Consequently, Petitioner failed to meet her burden of establishing that she is entitled to a license as a real estate sales associate. However, as discussed below, Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002. Therefore, the Commission may, in its discretion, grant Petitioner’s application (with restrictions) pursuant to sections 475.25(1) and 455.227(2)(f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Florida Real Estate Commission has the legal authority to deny Petitioner’s application for licensure. However, based on the underlying facts in this matter, it is RECOMMENDED that the Florida Real Estate Commission enter a final order granting Petitioner’s application for a license as a real estate sales associate. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S BRUCE CULPEPPER 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 10th day of May, 2017.
Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
The Issue Whether Hellender violated the provisions of Section 475.25(1)(a), Florida Statutes.
Findings Of Fact Hellender is a registered real estate broker holding license number 0038269 issued by the Florida Real Estate Commission. Hellender had a listing for the sale of real property owned by Horace E. and Margaret C. Young. An offer to lease with option to purchase was made by Richard W. and Diane B. Milligan through their realtor, Susan Seligman, who was in contact with Seligman several times November 26 concerning the availability of the property and terms of the lease-purchase agreement. Both the Youngs and the Milligans did not live in the Orlando area where the two realtors and property were located. Susan Seligman, a broker-salesperson, presented Ralph E. Hellender with a Contract for Sale and Purchase when she met with Hellender between 6:00 and 7:00 p.m. on the evening of November 26, 1976. This offer, which was received into evidence as Exhibit 1, expired at 12:00 noon on November 27. Hellender took the contract and indicated that he would communicate the offer to the Youngs. Susan Seligman did not accompany Hellender to communicate the offer as is the general custom, because she needed to pick up her children from a football game that evening. Mrs. Ingrid Hellender, a broker salesperson, received a call later on the evening of November 26, 1976, from Susan Seligman. The general topic of the call was the fact that the contract which Seligman had given Mr. Hellender earlier that evening provided for conventional financing of the purchase, and Seligman had second thoughts about the Milligans' desires on financing. She requested that she be given the opportunity to check with the Milligans to determine whether they intended to use conventional or FHA financing. At this point a conflict developed in the testimony of Mrs. Seligman and Mrs. Hellender regarding whether Mrs. Seligman requested that Mr. Hellender hold the contract or whether Mrs. Seligman requested that he present the offer with reservations concerning the nature of the financing. In any event, Mrs. Hellender advised her husband to hold the contract. Similarly, a conflict exists in Mr. Hellender's and Mrs. Seligman's testimony concerning whether Hellender said that the offer has been accepted by the Youngs. Mrs. Seligman stated that Mr. Hellender advised her on November 27, 1976, that the Youngs had accepted the offer. Hellender stated that he did not present the offer and therefore there was no basis for him to communicate an acceptance to Mrs. Seligman and did not communicate an acceptance to her. It should be particularly noted that Mrs. Seligman stated that on November 27 she had Mr. Hellender agreed that the Milligans should execute a new contract on Hellender's forms when the Milligans were to be in Orlando on December 1, 1976. It is also noted that Mrs. Seligman did not request telegraphic confirmation of the acceptance by the Youngs of the offer which she initially submitted to Mr. Hellender, although telegraphic confirmation is the generally accepted practice when dealing with an out-of-city seller and was not standard practice in the real estate firm with which Mrs. Seligman worked. The Hearing Officer discounts the testimony of Mrs. Seligman that Hellender told her the Youngs had accepted the offer because she did not request written confirmation of the acceptance, and because Mrs. Seligman stated that a second written offer was to be prepared on December 1, 1976. All the realtors who testified stated that it was the custom to obtain telegraphic confirmation of an offer from an out-of-town seller. Mr. Seligman, the broker for Mrs. Seligman's company, stated this was the general procedure for his company. Although the record is unclear whether Mrs. Seligman talked with Mr. Hellender before noon or after noon, she was aware the offer expired at noon November 27 and she did not press for written confirmation of acceptance before noon. Instead, she agreed to the preparation of a second offer is totally contrary and repugnant to any theory of acceptance of the first offer. Therefore, the Hearing Officer finds that there was no acceptance of the first offer communicated by Hellender to Mrs. Seligman. Mrs. Seligman may have formed the opinion that there was an acceptance because Mr. Hellender agreed to the terms presented in the first offer, but her agreement to a second offer to be prepared is in fact and law inconsistent with any assertion that the first offer was accepted. Mrs. Seligman stated, that it is clear from the actions of Mr. Hellender, that they expected a second contract to be presented in behalf of the Milligans. This explains his call to Mrs. Seligman advising her on December 5 that there was activity of the property. It also explains why December 6 he did accept a second offer on the property which was presented by Joe Deligna which he and Delinga communicated to the Youngs together as is the general custom after no offer was presented by the Milligans on December 1. Lastly, it explains why Hellender contacted Mrs. Seligman immediately after the Youngs had accepted the offer by the Maccagnanos and confirmed it telegraphically.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Ralph E. Hellender. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of March, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esq. 400 West Robinson Street Orlando, Florida 32801 Mark A. Koteen, Esq. Post Office Box 3431 Orlando, Florida 32802
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. 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 27 day of September, 1982.
The Issue Whether Respondent, a licensed real estate salesman, is guilty, as charged, of fraud, misrepresentation, culpable negligence or breach of trust in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact I. At all times material to the charges, Respondent was a licensed Florida real estate salesman associated with Woodlake Realty, Inc., in Melbourne, Florida. He obtained his real estate salesman's license in 1982. On March 14, 1985, became a licensed real estate broker and now operates his own business under the name of Peter Frontiero Realty. His office is located in his residence at 3247 West New Haven Avenue, Melbourne, Florida. II. On or about April 7, 1983, while employed as a real estate salesman at Apollo Realty, Inc., Mary E. Sousa obtained a listing on a tract of land owned by John and Janet Biansco. In connection with the listing, an Exclusive Right of Sale Contract was executed. This contract contained the following legal description of the tract to be sold: Parcel of land lying in the County of Brevard in the southwest 1/4 of Sec 11, TW 28 South Range 36E more particularly described as follows: S 2/3 of the following tract: commence at SE corner of W 1/2 of Sec 11 TW 28 South Range 36E, thence along south line of said Sec 11, 589-54-14 West for 30 feet., thence north 1- 17-00E for [sic] 43 feet to the point of beginning thence south 89-54-14 west along the north R/W line Melbourne Tillman Drainage district canal #63 for 297.43 feet, thence north 1-15-49 east for 353 feet, thence north 89-54-14 east for 297.55 feet, to the west R/W line of Arizona Street; thence south 1 17-00 West along R/W line for 353.00 feet, to the point of beginning. (P-4, Admissions No. 5, 6) As so described, this tract of land measures 235.34' x 297.47' and contains approximately 1.61 acres. (Admission No. 7) Mary E. Sousa and her broker, Peter Sergis, however, incorrectly determined that the legal description described a tract of land measuring 297' x 353' feet, containing 2.4 acres. (They determined this by examining the legal description attached to the Listing Contract and relying on Mr. Biansco's representation that the tract contained 2.4 acres.) Mary E. Sousa then had the property listed in the Melbourne Multiple Listing Service (MLS) on or about April 26, 1983. The MLS listing reflected the incorrect measurements and size of the tract, as submitted by Ms. Sousa. (P-3, Admission No. 8) III. During May, 1983, Karen Dunn-Frehsee and Paul Winkler (her fiance), contacted Respondents, a real estate salesman associated with Woodlake Realty, Inc., about purchasing a home. After Respondent showed them a house they were interested in, Ms. Dunn-Frehsee and Mr. Winkler decided that what they really wanted was to buy land on which they could build a residence. They told Respondent that they would need a minimum of two acres since they had two horses: local zoning requirements required at least one acre of land per horse. (Admission No. 10, Testimony of Dunn-Frehsee) Respondent checked MLS and found the listing (containing the incorrect measurements and size) of the Biansco property. He showed the land to Ms. Dunn- Frehsee and Mr. Winkler, who liked it and decided to make an offer. (At that time, Respondent was unaware that the MLS listing erroneously described the tract to be 297' x 353', containing 2.4 acres, when in fact it was 297.47' x 235.34', containing approximately 1.61 acres.) On or about May 5, 1983, Respondent prepared a "Contract for Sale and Purchase" containing the offer of Ms. Dunn-Frehsee. After she signed it, it was presented to the Bianscos, who subsequently accepted it. (Admission No. 12, P- 1) The Contract for Sale and Purchase contained, on the attached addendum--a correct legal description of the tracts as the description was taken from the listing agreement, not the erroneous MLS listing. Prior to closing, Respondent contacted Ms. Dunn-Frehsee several times to advise her regarding efforts being made by Lawyers Title Insurance Company to locate the prior owner of the property and secure a quitclaim deed covering a 30-foot strip of land bordering Arizona Street on the east side of the property. He was still unaware of the discrepancy between dimensions of the property contained on the MLS listing and the Contract of Sale. He did not tell Ms. Dunn-Frehsee that he had personally measured the property, or that he had confirmed the accuracy of the listing information. He was concerned only with the problem of obtaining access to the property through the 30-foot strip bordering Arizona Street. Although he told Ms. Dunn-Frehsee that he thought she was getting 2.7 or 3.0 acres by virtue of the additional strip of land which was to be quitclaimed to her at no additional cost, this belief was based on his reasonable assumption that the original tract contained 2.4 acres, as represented by the listing agents (Mary Sousa and Peter Sergis of Apollo Realty) and reflected in the Multiple Listing Book. Respondent also contacted Mr. Winkler, but similarly, did not represent to him that he (Respondent) had personally measured the property or confirmed the MLS information. (Testimony of Respondent) Prior to the closing, Respondent discussed with Ms. Dunn-Frehsee the need to order a survey of the property. She then ordered a survey, which was completed a week and a half before closing. After picking it up, Respondent telephoned Ms. Dunn-Frehsee. There is conflicting testimony about the conversation which ensued. Respondent testifies that he telephoned her and asked if she would like him to deliver the survey to her house or mail it to her, or if she would like to pick it up at his office. (TR-30) Ms. Dunn- Frehsee, on the other hand, testified that Respondent telephoned her stating that he had looked the survey over and there was no reason for her to drive out to his office to pick it up, that he would bring it to the closing. (TR-48) Neither version is more plausible or believable than the other. Both Respondent and Ms. Dunn-Frehsee have a discernible bias: Respondent faces charges which could result in the revocation of his professional license; Ms. Dunn-Frehsee has sued Respondent for damages resulting from her purchase of a tract of land which was smaller than what she was led to believe. Since the burden of proof lies with the Departments, the conflicting testimony is resolved in Respondent's favor as it has not been shown with any reliable degree of certainty that Respondent told Ms. Dunn-Frehsee that he had looked the survey over and that there was no need for her to examine it before closing. Both witnesses agree, however, and it is affirmatively found that Ms. Dunn-Frehsee agreed that Respondent should bring the survey with him to the closing, which was imminent. The surveys prepared by Hugh Smith, a registered land surveyors correctly showed the property to be approximately 235.33' x 297.43', but did not indicate the size by acreage. (Admission No. 20, P-2) At closings on or about June 23, 1983, Respondent showed the survey to Ms. Dunn-Frehsee. Ms. Dunn- Frehsee questioned the measurements as not being the same as she recalled being on the MLS listing. Neither Ms. Sousa nor Respondent, both of whom were in attendance, had a copy of the MLS listing so that the measurements on the two documents were not compared. (Admission No. 22-23) Ms. Dunn-Frehsee chose to close the transaction anyway after her questions regarding the property were apparently resolved to her satisfaction by Kathleen Van Mier, the agent for Lawyers Title Insurance Company which was handling the closing. Ms. Dunn-Frehsee signed a contingency statement indicating that all contract contingencies had been satisfied and that she wished to proceed with the closing. (TR-4O-41; 77-78) Respondent was misinformed regarding the dimensions and size of the property by the listing agents, Mary Sousa and Peter Sergis of Apollo Realty, who had provided inaccurate information to the Multiple Listing Service. Respondent reasonably relied upon the listing information and the representations of the listing agents concerning the size of the property. In his discussions with Ms. Dunn-Frehsee and Mr. Winkler, he drew reasonable inferences from such (incorrect) representations. He did not intentionally mislead anyone. It has not been shown that, under the circumstances, he failed to exercise due care or that degree of care required of a licensed real estate salesman. Nor has it been shown that he violated any professional standard of care adhered to by real estate salesmen and established by qualified expert testimony at hearing.
Recommendation Based on the foregoing it is RECOMMENDED: That the administrative complaint, and all charges against Respondent be DISMISSED for failure of proof. DONE and ORDERED this 11th day of October, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of October, 1985.
Findings Of Fact The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him. On May 22, 1981, the Respondent completed his application for licensure in Florida. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license. The Respondent's Michigan license was revoked on or about July 2, 1982. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be REVOKED. THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, 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 21st day of July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Steven Warm, Esquire 101 North Federal Highway Boca Raton, Florida 33432 William M. Furlow, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether the Respondent, Peter C. Fischbach, should be disciplined on the charges alleged in the Administrative Complaint, FDBPR Case No. 97-83729. Specifically, the charges allege that, "under the guise of an alleged real estate 'consulting fee,'" Fischbach converted $10,000 of a prospective buyer's escrow money, contrary to their agreement that Fischbach only would be paid commission on the closing of a purchase, which did not occur. The three-count Administrative Complaint charges that these allegations establish violations of: Count I, Section 475.25(1)(b), Florida Statutes (1997), for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction fraud, misrepresentation; Count II, Section 475.25(1)(d)1, Florida Statutes (1997), for failure to account or deliver funds; and Count III, Section 475.25(1)(k), Florida Statutes (1997), for failure to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement was properly authorized.
Findings Of Fact The Respondent, Peter C. Fischbach, is a licensed real estate broker in Florida. However, he has not been very active in actual real estate brokering; most of his involvement in the real estate business has been investing in and renting real estate on his own account. In 1994, Fischbach met Peter Graf, a German national who vacationed in Florida with his wife, Kaethe. The Grafs were interested in purchasing a campground on Alligator Point in Franklin County, Florida. One of Fischbach's tenants was an acquaintance of the Grafs, and the Grafs were impressed with Fischbach's property. When the Grafs became acquainted with Fischbach, they also were impressed with Fischbach's knowledge of real estate investing. In early 1995, the Grafs asked Fischbach to help him evaluate the Alligator Point property and put together an offer to purchase. Fischbach agreed; however, he attempted to explain that he did not do much real estate brokering and would prefer to be paid a fee for his services in an amount agreed to by the parties after Fischbach was finished with his work so that both would be in a better position to evaluate the fairness of his remuneration. Fischbach proposed that once they agreed to the amount of Fischbach's fee, Fischbach would return to the Grafs any sales commission paid to Fischbach on the transaction. The Grafs readily agreed to Fischbach's proposal. Fischbach made several trips to Franklin County, discussed strategy with the Grafs, negotiated with the prospective seller, and telephoned and corresponded with the Grafs in Germany. At the request of the Grafs' attorney, Fischbach assumed the responsibility of preparing a letter of intent to memorialize the agreement between seller and buyer. The attorney planned to prepare all legal documents necessary to implement the letter of intent. Fischbach first drafted an incomplete and undated Purchase and Sales Agreement for a purchase price of $1,250,000. (Petitioner's Exhibit 1). This rough draft included a provision for a 6% sales commission payable to Fischbach "at the closing." The evidence suggested that this draft was not signed by the Grafs or presented to the seller. On or about March 10, 1995, Fischbach completed a revised letter of intent. (Petitioner's Exhibit 2). The revised letter of intent included a provision for a 4 percent sales commission payable to Fischbach "at the closing." It also provided for a $100,000 deposit payable $25,000 initially and $75,000 by September 1, 1995, until which time the Grafs would be entitled to investigate and inspect the property. Closing was proposed for January 1, 1996. The parties were to execute the Purchase and Sales Agreement to be prepared by the Grafs' attorney as soon as possible and within 30 days. This letter of intent apparently was signed by the Grafs and presented to the seller, but the seller declined and asked for more money. On or about March 21, 1995, Fischbach again revised the letter of intent. (Respondent's Exhibit 5). This revision was for a purchase price of $1,350,000. It omitted any provision for a sales commission for Fischbach. As before, it provided for a $100,000 deposit payable $25,000 initially and $75,000 by September 1, 1995. But this revision only gave the Grafs until May 30, 1995, to investigate and inspect the property, and required the parties to execute the Purchase and Sales Agreement to be prepared by the Grafs' attorney on or before May 31, 1995. As before, closing was proposed for January 1, 1996. This second revised letter of intent apparently was signed by the Grafs and the seller, and the Grafs paid the initial deposit of $25,000 to Fischbach to be held in escrow. The day after Fischbach prepared the second revised letter of intent for signature by the parties, he met with the Grafs to discuss his fee. In Fischbach's mind, although he intended to continue to be available to answer questions and assist the Grafs through closing, his primary work was done, and he and the Grafs were in a position to come to an agreement on what Fischbach should be paid for his work. The Grafs were accompanied by Martin Lehner, a German friend and financial advisor to the Grafs, who Fischbach thought would be able to translate for them as necessary to assure that all parties fully understood the discussion. Fischbach opened the discussion by telling the Grafs that 6% was a normal real estate commission. However, it was Fischbach's opinion that 6% of the $1,350,000 purchase price in the letter of intent was too much for what Fischbach had done for the Grafs. Fischbach suggested that they instead consider a fee in the amount of 2% of the purchase price, or $27,000. The Grafs agreed. The parties then agreed that the fee would be payable $10,000 in September 1995, $10,000 in September 1996, and $7,000 in September 1997. The agreement was reduced to writing in the form of a note stating: "Peter's commission (2%), 3/22/95, $10,000 Sept 95, $10,000 Sept 96, $7,000 Sept 97." (Respondent's Exhibit 5). Peter Graf signed the note in the presence of his friend and financial advisor, signifying the agreement of him and his wife. Fischbach intended to communicate to the Grafs that he was entitled to his $27,000 fee regardless whether the transaction closed. However, Fischbach's use of the term "2% commission" both in the discussion about his fee and in the note intended to memorialize the agreement may have contributed to a misunderstanding as to what would happen if the transaction did not close. In order to facilitate the eventual transfer of funds from the Grafs to the seller at closing, and to enable Fischbach to attend other matters on the Grafs' behalf while they were in Germany, Fischbach had the Grafs execute a power of attorney, in favor of Fischbach, on or about May 31, 1995. During the summer of 1995, Fischbach participated in continued negotiations designed to achieve tax benefits for both seller and buyer. The Grafs also consulted immigration attorneys to acquire the visa necessary for him to purchase and operate the campground. By letter dated July 13, 1995, Fischbach apprised the Grafs of the status and reminded them both that a second deposit installment of $75,000 was due in escrow by September 1, 1995, and that the first $10,000 of Fischbach's fee was also due in September 1995. The Grafs received the letter but never questioned what it said about Fischbach's fee. On or about July 17, 1995, the Grafs' attorney completed a proposed Contract for the Sale and Purchase of Real Estate and Agreement for the Sale and Purchase of Business Assets. However, before it was executed the Grafs insisted on the addition of a provision that would suspend purchase money mortgage payments for one year in the event of a catastrophic hurricane. By letter dated September 15, 1995, Fischbach notified the Grafs that the seller refused to include the hurricane catastrophe provision in the Purchase and Sales Agreement and that the seller was giving the Grafs until October 2, 1995, to sign the proposed Contract for the Sale and Purchase of Real Estate and Agreement for the Sale and Purchase of Business Assets. Fischbach also advised the Grafs: "If we are done for now, I would like to close up your escrow account, pay myself the first $10,000 payment as agreed, and return the remaining money to Martin [Lehner] for him to invest for you." The Grafs received the letter but never questioned what it said about Fischbach's fee. When Fischbach did not hear from the Grafs by the seller's deadline, Fischbach assumed the deal was off and wrote to the Grafs on October 3, 1995: "I now need to close your $100,000 plus interest escrow account. I also would like to pay myself the first $10,000 real estate consulting payment that was due in September. Deborah and I are getting married and we could use the money." In fact, Fischbach did not get married, and he did not need the money; the second quoted sentence was Fischbach's way of trying to ask for the overdue payment in a light-hearted manner. The Grafs received Fischbach's October 3, 1995, letter and again did not question what it said about Fischbach's fee. However, by this time it was occurring to the Grafs that they were going to be out $10,000 and not have anything to show for it. Notwithstanding the agreement regarding Fischbach's fee, the Grafs now thought $10,000 was too much to pay Fischbach in light of the failure of the deal to close. They decided to take it up with Fischbach when they returned to Florida from Germany. The Grafs never communicated to Fischbach at any time that they had any questions whatsoever about Fischbach's fee, or Fischbach's intention to deduct it from the escrow money. On October 18, 1995, Fischbach paid himself $10,000 and refunded the balance of the Grafs' deposit plus interest. Peter Graf testified at one point that he and his wife were back in the United States when the escrow account was closed, but he also testified that he did not return until November 1995. It is found both that the Grafs had not yet returned and that the Grafs still had not contacted Fischbach to object to his fee or to his intention to deduct $10,000 from escrow when Fischbach closed the escrow account. Peter Graf testified that he contacted Fischbach shortly after the Grafs returned to Florida to complain about Fischbach's fee and the deduction of $10,000 from the escrow refund. Fischbach testified that he heard nothing from the Grafs until approximately the middle of February 1996. Due to irreconcilable direct conflict in the testimony, it was not proven that the conversation occurred earlier than the end of January or early February 1996. Whenever their first conversation on the subject occurred, Graf told Fischbach there should not have been any fee since there was no closing, and Fischbach's response was that the Grafs had agreed to the fee. Fischbach thought that he was able to remind the Grafs of their fee agreement, again explain it to them, and thereby resolve their complaint. Fischbach wrote to the Grafs' attorney on February 26, 1996, in response to a telephone call from the attorney, in which the fairness of Fischbach's fee was questioned. In the letter Fischbach again explained in detail the agreement for the fee under which the Grafs actually still owed Fischbach another $17,000. Fischbach wrote that he saw no reason why he should have to give the Grafs any money back. Fischbach's letter also confirmed that the Grafs had approached Fischbach the preceding week to complain about the fee, but that Fischbach thought the matter had been discussed, explained and settled. The Grafs' attorney declined to take their case against Fischbach. He told the Grafs that as far as he was concerned, the dispute was "between you two." Later, the Grafs consulted a Louisiana attorney and requested that the attorney do "whatever was necessary." According to Peter Graf, the Louisiana attorney lodged a complaint with the Florida Real Estate Commission. Despite the evidence that the Grafs agreed to a $27,000 "consulting fee" for services rendered, they maintained that the fee should not be paid because there was no closing. Yet, the Grafs concede that Fischbach is entitled to something for his work, and they offered him $2,500 to $3,000. Fischbach, on his part, still maintains that he is owed another $17,000 but had not tried to collect it, he says, due to "embarrassment" about the dispute. He testified that it never occurred to him to return the $10,000 to escrow and have the Florida Real Estate Commission resolve the dispute and issue a disbursement order because he was not familiar with the procedure, not being very active in the brokerage of real estate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order dismissing the charges against the Respondent, Peter C. Fischbach. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 23rd day of March, 1999. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Suite N-308A 400 West Robinson Street Orlando, Florida 32801 Peter C. Fischbach 405 Central Avenue St. Petersburg, Florida 33701 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation Northood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
