Findings Of Fact Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated: At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation. First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving, setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000. On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission: This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976. I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ". * * * We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available. On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret. Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. COPIES FURNISHED: Kenneth M. Meer, Esquire 400 West Robinson Avenue Orlando, Florida 32801 Mr. George W. Pinkerton 2833 East Highway 92 Lakeland, Florida 33801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-2292 GEORGE W. PINKERTON, Respondent. /
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
The Issue Should Petitioner impose discipline against the licenses held by Respondent as a real estate broker, licenses numbers 3000807, 3000808, and 300092222, and as a real estate instructor, license number 32195, for alleged violations of Section 475.25(1)(f), (n) and (p), Florida Statutes (2004)?
Findings Of Fact Facts Alleged in the Amended Administrative Complaint Uncontested by the Answer: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate broker, issued license numbers 3000807, 3000808, and 3092222, in accordance with Chapter 475 of the Florida Statutes. The last licenses issued were as a broker at AAA Realty of Florida Comm. Real Estate Properties/Investments, Inc., 132 South Atlantic Avenue, Daytona Beach, Florida 32118, and at AAA Realty of Florida International Inc., 132 South Atlantic Avenue, Daytona Beach, Florida 32118. Respondent is a licensed real estate instructor issued license number 32195 with AAA College of Real Estate. Additional Facts: More specifically concerning licenses issued to Respondent as a real estate broker, from January 1, 2005 through March 13, 2006, Respondent was a broker doing business as AAA Realty of Florida License No. BK3000807, a brokerage sole proprietorship located at 132 South Atlantic Avenue, Daytona Beach, Florida 32118. From January 1, 2005 to March 13, 2006, Respondent was a broker, License No. BK3092222, affiliated with AAA Realty of Florida International, Inc., License No. CQ0000000, a brokerage corporation located at 132 South Atlantic Avenue, Daytona Beach, Florida 32118. License No. BK3000808 expired March 31, 2004. In State of Florida vs. Fadel Fawzi Elbadramany, in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Division 41, Case No. 2001-36519CFAES, the defendant, Respondent here, was tried and found guilty by a jury of grand theft of over $20,000, an offense recognized in Subsections 812.014(1) and (2) (b), Florida Statutes. On February 11, 2005, an order of judgment was entered by Circuit Judge R. Michael Hutcheson adjudicating the defendant in that cause, Respondent, in the present case, guilty of grand theft. On that same date an order of sentence was entered against the defendant/Respondent, by which he was committed to the Department of Corrections to be imprisoned for a term of 15 years, with credit for 105 days of time served while incarcerated before the imposition of this sentence. By separate order the defendant/Respondent was required to pay certain charges, costs and fees. That order was entered on February 11, 2005. In Fadel Elbadramany, Appellant, vs. State of Florida, Appellee, in the District Court of Appeal of the State of Florida, Fifth District, July term 2006, Case No. 5D05-754 decision filed August 8, 2006, the court entered a per curium affirmance. On September 27, 2006, that court ordered "that appellant's motion for rehearing, rehearing En Banc and request to issue a written opinion filed August 22, 2006 and Appellant's Supplemental to Request to Issue a Written Opinion, filed September 18, 2006 are denied." Respondent is presently confined in Washington Correctional Institution where the final hearing was held. He is inmate number V21541. His tentative release date from his imprisonment is October 26, 2019. His confinement is in relation to the grand theft offense.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 475.25(1)(f) and (n), Florida Statutes (2004), that Respondent did not violate Section 475.25(1)(p) Florida Statutes (2004), and revoking the real estate broker licenses and real estate instructor license held by Respondent. DONE AND ENTERED this 20th day of December, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of December, 2006.
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.
Findings Of Fact At all times material hereto Respondents were licensed as alleged. In 1980 Respondent Allen conceived the idea of setting up a computer listing service for condo owners desiring to rent their Florida condos. He formed VCI to act as an interface between the owners and travel agents or brokers desiring rental for their customers. VCI was never licensed as a real estate broker nor was it ever held out to be so licensed. Respondent mailed out forms to condo owners to complete if they wanted to have their condos placed in the exchange bank to be established by VCI (Exhibit 6). He also prepared a Computerized Reservations Handbook (Exhibit 5) which was also sent to condo owners. Among those responding to this solicitation were Day and Forsgren, who sent VCI $60 each. Because the expenses of setting up VCI, mailing out material, renting computer, and renting office space far exceeded the income received from those owners accepting VCI's offer and the capital with which Respondent started VCI, the company ran out of funds before the catalog was published. The computer was repossessed in December of 1981 after having been rented for one year, thereby removing the tool which was to keep track of the condos available for lease. Some $4,128 was collected from condo owners before VCI had to be abandoned for lack of funds. Ms. Gertrude Naumann, broker at Daisy Realty, Inc., saw the VCI brochure and contacted Respondent. She had contacts with Canadian travel agencies to whom she had rented condominiums in the Orlando area in the past and was interested in expanding to the Clearwater-St. Petersburg area. After receiving an advance deposit from the Canadian travel agencies, Naumann met with Respondent in her office and drafted a contract, Exhibit 1, and gave Respondent a binder check in the amount of $5,000. Although Ms. Naumann testified that she understood, and specifically told Respondent, that the $5,000 deposit must be placed in escrow, the rough draft of the contract (Exhibit 4) that became Exhibit 1 when retyped, shows the words "non-interest bearing trust account" to have been deleted, and the sentence changed to read "said binder to be held in a bearing account and to be used only upon completion of rental arrangements and for telephone security, cleaning fees and not to be applied toward rents. By this contract Respondent agreed to block out and have available 20 one-bedroom units and 5 two-bedroom units from January 30, 1982, to March 30, 1982, and Daisy agreed that 30 days prior to January 30, 1982, Daisy would notify VCI the number of units actually required so units not required could be released for renting to others. By letter dated January 21, 1982 (Exhibit 3) Daisy Realty advised VCI, inter alia, that for the period January 30 to February 20 to release all units-- none would be required. Ms. Naumann testified that her office made frequent telephone calls to Respondent during December, 1981, and January, 1982, modifying the number of units desired for rental. Respondent denies receiving any such calls or that he received notice that none of the units blocked out from January 30 through February 20, 1982, would be released until he received Daisy's hand-delivered letter on January 21, 1982. After receiving Exhibit 3, Respondent considered Exhibit 1 void because of the breach by Daisy but leased units to clients produced by the Canadian travel agents. These leases were conducted through Condo Resorts Management, a real estate company. The evidence was not disputed that these rentals were paid to Respondent both by the Canadian travel agencies and by Daisy. In several instances, the rental for the units came to Condo Resorts Management from or through Daisy. On at least one occasion, Daisy deducted the commission from the rental received before forwarding it to Condo Resorts Management. When Naumann was unsuccessful in getting the $5,000 deposit returned, she filed a complaint with the Florida Real Estate Commission and, following an investigation, the Administrative Complaints here being considered were filed. Ms. Naumann has made no attempt to recover the deposit or commissions by instituting civil proceedings against Allen. The contract (Exhibit 1) provides that VCI would make available 20 one-bedroom units and 5 two-bedroom units for the period January 30 to March 20, 1982, at a total rental of $75,048. The total rent paid Respondent based on the units actually rented was slightly more than $7,000.
Findings Of Fact At all times here involved Respondent was registered as a real estate broker with the FREC and was an active firm member of Realcor, Inc., a registered corporate broker. During the latter part of 1975 Realcor was the sales agent for a condominium development at Fort Lauderdale, Florida. In October 1975 Edward J. Briglia visited the condominium preparatory to buying a unit and talked to and was shown around the condominium by Nicholas Polizzi, a broker-salesman for Realcor. Upon leaving, Briglia advised Polizzi that he was returning to his home in the northern United States and if he decided to buy would call Polizzi. Shortly thereafter, Briglia telephoned the real estate office and talked to Constant Cholvin, a salesman, who advised Briglia that Polizzi was no longer associated with Realcor and, when Briglia said he was ready to buy, offered to send him a contract. Cholvin wrote one or two letters, drafted the contract to purchase and talked to Briglia by phone two or three times. He did not appear at the closing and never had personal contact with Briglia. Before Briglia closed his purchase the sale of the condominium was turned over to another broker and most of Briglia's contacts after first signing the contract were with the other firm. The contract was changed to another unit before the contract was finally closed and Briglia obtained occupancy. When the commission earned by Realcor on the sale was paid, Respondent was aware of the participation by Cholvin and Polizzi in the sale to Briglia, and when Cholvin demanded payment of the entire salesman's commission, Respondent told him to get together with Polizzi and agree to a settlement of the commission (Exhibits 6 and 8). Thereafter the communications between Polizzi, Cholvin and Respondent deteriorated due to the latter being out of state a great deal plus some difficulty in Respondent receiving mail that was supposedly forwarded to Respondent from Florida. Respondent acknowledged that he received information from Polizzi that he had agreed to a 50-50 commission split with Cholvin but never received Cholvin's acquiescence to such division of the commission. Cholvin averred that he responded to Exhibit 8 agreeing to accept the division of the commission with Polizzi but never heard further from Respondent until the week of the hearing. After the hearing had been scheduled, Respondent, presently residing in North Carolina, forwarded the commission to his son in Delray Beach to divide between Polizzi and Cholvin and obtain their releases. This was accomplished immediately prior to the commencement of this hearing. During all time here involved the commission due the salesman on the sale to Briglia remained in escrow.
Findings Of Fact The Respondent is, and at all times material to this matter has been, registered with the Real Estate Commission as a real estate broker. The Respondent has been the broker in charge of Lynn Real Estate Company. From approximately January 6, 1976 until February 14, 1977, Jacqueline McNabb was associated as an independent contractor with Lynn Real Estate and with the Respondent. McNabb was at that time registered with the Real Estate Commission as a real estate salesman. She is now registered as a broker. McNabb's relationship with the Respondent is set out in a contract which was received in evidence at the hearing as Petitioner's Exhibit 1. Paragraph 6 of the contract provides: The fees usually and customarily charged by the broker shall be charged for any service performed hereunder, unless broker shall advise the salesman of any special contract relating to any particular transaction he undertakes to handle. When the salesman shall perform any service hereunder, whereby a fee is earned, said fee shall, when collected, be divided between the broker and the salesman, in which division the salesman shall receive sixty percent and the broker shall receive the balance. In the event that two or more salesmen participate in such a service, or claim to have done so, the amount of the fee over that accruing to the broker shall be divided between the participating salesmen according to agreement between them, or by arbitration. In no case shall the broker be liable to the salesman for any fee unless the same shall have been collected from the party for whom the service was per- formed. Paragraph 8 of the contract provides: This contract, and the association created hereby, may be terminated by either party hereto, at any time upon notice given to the other; but the rights of the parties to any fee, which accrued prior to said notice, shall not be divested by the termination of this contract. On February 14, 1977, the Respondent duly terminated the contract with Ms. McNabb, as the result of a conflict which is not relevant to this proceeding. The Respondent immediately wrote to the Real Estate Commission advising that McNabb was no longer associated with him. Ms. McNabb testified at the hearing that the contract was terminated on February 15, but it is clear from the evidence that she was mistaken. While she was under contract with the Respondent, McNabb obtained a listing for the Respondent for the sale of property owned by a Mr. Davidson. The property was listed on a Multiple Listing Service. No contract for the sale of the property had been obtained prior to the time that McNabb's contract with the Respondent was terminated. On February 16, 1977, Ms. Jean Krueger, a registered real estate salesman employed by Tamarac Realty obtained a contract for purchase of the property. The contract was written at approximately 4:45 P.M. on February 15, and she immediately called the Respondent's office so that they would wait for her to get there with the contract before the office was closed for the day. Ms. Krueger delivered the contract to the Respondent, Mr. Davidson accepted it, and the transaction ultimately closed. Ms. McNabb learned that a contract had been obtained on the Davidson property approximately 3 days after the contract was signed. She made both written and oral demand upon the Respondent for a share of the commission. The Respondent, after consulting representatives of the Real Estate Commission, representatives of the St. Petersburg Board of Realtors, and legal counsel, declined to give McNabb any share of the commission. The Respondent did not know at the time that he terminated his contract with McNabb that a contract would be obtained for sale of the Davidson property. Ms. Krueger, the salesman who obtained the contract had never met the Respondent prior to taking the contract for sale to him, the day after McNabb's contract was terminated. During the course of this proceeding the Respondent has been cooperative in providing copies of documents to Ms. McNabb. The Respondent has no history of complaints being made against him to the Florida Real Estate Commission, and it does not appear that he has in the past refused to pay any salesman a commission to which the salesman was entitled.
Findings Of Fact On June 21, 1975, J. V. Freeman asked respondent, who was then employed as a real estate salesman by Ancient City Realty Company, in St. Augustine, to represent his wife and himself in the sale of lot 13, block 11, Vilano Beach subdivision, Unit A, [the lot], in St. Johns County, Florida. Mr. Freeman and respondent did not visit the property at the time of the listing, but Mr. Freeman told respondent that the lot was high and dry and that the County would put in a road in front of the lot as soon as houses were constructed in the area. Belden N. Barrows and Edith Evelyn Barrows, his wife, approached respondent in August of 1975. Subsequently, respondent showed Mr. Barrows the Freemans' unimproved lot. Mr. Barrows asked how he could expect to gain access to the property and respondent answered that the County would pave Viejo Street once houses were built in the area. When he gave this answer, respondent reasonably believed it to be accurate, although in fact it was not accurate. At all pertinent times, Viejo Street appeared on a plot in the official records of St. Johns County. Viejo Street is platted between blocks 11 and 12. Block 12 lies between block 11 and the St. Augustine Inlet. Respondent was familiar with this plat and had been present when Ray Clark, the real estate broker for whom he worked, telephoned a county office and was told that Viejo Street would be built, as proposed. Respondent telephoned a title insurance company and was advised that there would be access to the property. The title insurance policy obtained by Mr. and Mrs. Barrows in connection with their purchase of the lot insured against a lack of access by road. Since the Barrowses' purchase of the lot, however, the Board of County Commissioners of St. Johns County has decided that the soil at the site proposed for Viejo Street is too wet too often to justify expenditure of county money for the construction of a road, although the County Commissioners have given permission to a private citizen to open and maintain a road at his own expense. When they learned that no road was likely to be built, Mr. and Ms. Barrows brought suit against the title insurance company, and prevailed in the trial court. An appeal is now pending. Even though Mr. Freeman had told respondent that the lot was high and dry, respondent knew otherwise. All the houses in the general vicinity of the lot are on stilts. Respondent was familiar with the area and "knew in case of a hurricane, or high tide with a northeaster, that there would be water on [the lot]." (R. 51). Even so, in answer to questions from Mr. Barrows, respondent assured Mr. and Mrs. Barrows that the water did not come up as far as the lot. In reliance on respondent's representations, Mr. and Mrs. Barrows purchased the lot. There have been frequent encroachments on the lot since they purchased it. The entire lot has been under water. Water has covered portions of the lot as many as 10 days in a single month.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for ninety (90) days. DONE and ENTERED this 11th day of July, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Donald W. Gilbert 66 1/2 Abbott Street St. Augustine, Florida 32084
