Findings Of Fact Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1989.
Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times relevant thereto, Respondent Steven M. Frank, held real estate salesman license number 0186888 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He has held a salesman license since February 28, 1978. In September, 1980, Respondent began working as a salesman for Independent Realty Associates, Inc. located at 6281 Pembroke Road, Hollywood, Florida. Alistair D. Monro was active broker and president of the firm. Monro also operated a construction firm and mortgage brokerage business at the same address. At approximately the time when Frank began his tenure with Independent, Monro entered into a non-exclusive agreement with Paul Uber to sell houses and lots in University Park, a housing project in Miramar, Florida which had been purchased by Uber from a bank in foreclosure proceedings. There were no written office procedures setting forth instructions on how contracts and deposits were to be handled. However, Frank had been orally advised by Monro to turn over all contracts and checks to Monro, or in his absence, to a newly hired office manager. There was no night depository arrangement in the office. He had also been instructed that any contracts received on University Park property could only be presented by Monro. In fact, Frank did not know Uber's address or telephone number, and had never seen or met him. An open house was held at University Park on the weekend of September 13 and 14, 1980. Frank volunteered to work at one of the six model homes in the project. Around 3:00 p.m. on Sunday, September 14, Elizabeth and Victoria Woerner executed a contract for sale and purchase in which they offered to purchase the home located at Lot 4, Block 4 in University Park for $75,000. Elizabeth Woerner gave Frank a check in the amount of $100 to be held in escrow as earnest money. The contract called for approval by the seller no later than Wednesday, September 17. At 4:00 p.m. that afternoon, Frank closed the model home and returned with the check and contract to his office. Because Monro had been absent from his office the entire weekend, Frank attempted to give the check to the office manager, Dolly Stogner. However, she would not accept the check and contract since the contract had to be presented by Monro. The following morning (Monday) Frank returned to the office and could not find Monro. He then attempted to give Monro's secretary the check and contract. She refused since the contract was not executed by the seller. He left a message for Monro with the secretary and continued to hold the contract and check. That evening he received a telephone message from Elizabeth Woerner. He was unable to reach her that evening but telephoned her the next morning. After learning she wished to withdraw her offer, he told her he would check with his broker to see how deposits were returned. Thereafter, he attempted to see Monro that day (Tuesday) but again found him absent from the office. He left a message with the office manager for Monro to call him. The call was never returned. On Wednesday, Monro received a telephone call from Elizabeth Woerner concerning her check. When Frank returned to the office that day, he was fired for failing to immediately turn over the check and contract to the broker. The $100 deposit was later returned to the Woerners. Less than a week later, Monro wrote the Department and recommended that Frank's license be suspended or revoked. He advised the Department that Frank was guilty of "failure to turn in the deposit to the broker", "failure to present an offer on the property", and "culpable negligence". He also stated that Frank was "not of a caliber that would make him an asset to the Real Estate Profession." As a result of this letter, a disciplinary proceeding against Frank was begun. The property in question eventually sold for $112,500 in November, 1980. Monro acknowledged that the Woerners' $75,000 offer was so low that it would not have been accepted. He also acknowledged that another offer had been made on the property on September 14 and was pending when the Woerners' contract was signed. Monro did not present the Woerner's contract to Uber, presumably because the Woerners wished to withdraw their offer. No monetary harm was suffered by the seller or the Woerners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Steven M. Frank be DISMISSED. DONE and ENTERED this 29th day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982.
The Issue Whether Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b) Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to account and deliver funds, in violation of Section 475.25(1)(d)1., Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to maintain trust funds in a real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.005(1)(k), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Leslie L. White is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0095441 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker with an address of Les White Realty, 6313 Wynglow Lane, Orlando, Florida, 32818-1311. Respondent's license is currently under suspension for failing to pay a fine and failure to complete certain education courses. On or about September 28, 1993, Respondent negotiated a contract between himself, doing business as Les White Enterprises, as seller, and Charles and Greta White, as buyers, (no apparent relationship to Respondent) to purchase Lot Number 18, Whisper Ridge subdivision in Orange County, Florida and build a house thereon for the total sum of $79,000. Respondent prepared the contract, using the standard Contract for Sale and Purchase form approved by the Florida Association of Realtors and The Florida Bar. Les White Enterprises was listed as the "Seller" and Charles White and Greta White, his wife, were listed as "Buyers". The Buyers agreed to purchase Lot 18 and to have a house constructed on the site by the Seller. The Buyers agreed to seek "new financing at prevailing interest rates" in the amount of $75,550; put down a $2,000 deposit and pay an additional $1,450 at closing. The contract called for the deposit to be held in escrow by Les White Realty/Builders. The $2,000 deposit was paid in cash by the Buyers and given to Respondent. The Respondent did not place the $2,000 deposit in an escrow account contrary to the express terms of the contract. Respondent did not acknowledge receipt of the deposit in his capacity as a broker. At the time the contract was signed, the Buyers knew that the Respondent did not own or have title to Lot 18, and that the purchase price of the lot exceed the amount of the deposit. The Buyers consented to the Respondent using the funds to acquire the property. Respondent was unable to purchase Lot 18, and sought the Buyers' permission to purchase Lot 2 instead and construct a house on it in accordance with the parties' prior agreement. The Buyers reluctantly agreed. On February 18, 1994, Buyers gave Respondent a cashier's check for $1,200 for the purpose of clearing the land and beginning construction of a home for them on Lot 2. The funds were not placed in escrow. The Respondent utilized the funds received from the Buyers and acquired title to Lot 2 in his name alone on or about February 25, 1994. The Respondent cleared Lot 2 in preparation for construction, obtained building plans and applied for building permits in connection with building a house on said lot. Shortly thereafter, Respondent notified the Buyers that the private investors, who approved their loan application, had discontinued financing of the Respondent's construction loan and he was unable to construct the house. The transaction failed to close and the Buyers demanded that Respondent return the earnest money deposit. Respondent was unable to return to return the $3,200 earnest money deposit to the Buyers. Respondent filed for personal reorganization under Chapter 13 of the United States Bankruptcy Code. Throughout the course of this transaction, Buyers dealt with Respondent in his capacity as a broker/builder. In 1994 and 1995, the Florida Real Estate Commission found Respondent guilty of violating the provisions of Section 475.25(1)(b) and (1)(d)1., Florida Statutes on three occasions. Following the third offense, Respondent's license was suspended for six months and it is presently under suspension for failure to pay his administrative fines and complete other requirements of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1., and (k), Florida Statutes; and guilty of having been found guilty for a second time (or more) of misconduct that warrants suspension, in violation of subsection 475.25.(1)(o), Florida Statutes; it is further RECOMMENDED that Respondent's licensed be revoked. DONE and ENTERED this 4th day of October, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Gillis and Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times material hereto, Respondent Philip Marzo was a real estate broker licensed under the laws of the State of Florida, holding license No. 0217167; and Respondent All Cities Realty, Inc., was a real estate brokerage corporation licensed under the laws of the State of Florida, holding license No. 0217166. At all times material hereto, Respondent Marzo was the qualifying broker for Respondent All Cities Realty, Inc. On May 9, 1981, Gladstone Keith Russell entered into a Service Agreement with All Cities Realty, Inc. Pursuant to the terms of that Agreement, Russell paid $75 in cash to Respondent All Cities Realty, Inc., as an advance rental information fee in exchange for which All Cities Realty, Inc., agreed to provide Russell with listings of available rentals. On or about May 13, 1981, Respondents provided to Russell one listing, which listing was not suitable to Russell. No other listing information was ever provided by Respondents to Russell. Russell obtained his own rental within thirty days from the date of the Service Agreement. This rental was not obtained pursuant to any information supplied to him by Respondents. Within thirty days of the date that All Cities Realty, Inc., contracted to perform real estate services for Russell, Russell telephoned Respondent All Cities Realty, Inc., to demand a return of his $75 deposit. The salesman who took Russell's advance fee was no longer employed at All Cities Realty, Inc., and Russell spoke with Respondent Marzo. Although Russell demanded a refund of his money, Respondent Marzo did not make a refund to Russell. When Russell spoke with Marzo on the telephone, Marzo, instead of returning Russell's money, used delaying tactics and attempts to keep from making the refund. Since his telephone calls proved unsuccessful, Russell returned to the All Cities Realty, Inc., office to obtain a refund from Marzo. Upon arriving at the office, Russell found that All Cities Realty, Inc., had gone out of business, and he was unable to locate Respondent Marzo. Russell has never received a refund of his $75 advance fee paid to the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Default be entered against Respondents, Philip Marzo and All Cities Realty, Inc., and that a final order be entered finding Respondents, Philip Marzo and All Cities Realty, Inc., guilty of the violations charged in the Administrative Complaints and revoking their real estate licenses. RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 24th day of August, 1982. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Philip Marzo 2920 Missionwood Avenue, West Miramar, Florida 33025 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violations of Sections 475.25(1)(a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florida Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in am administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent Joseph Macko appeared at the hearing unaccompanied by legal counsel. The Hearing Officer advised him of his rights in the administrative hearing. Respondent is now a registered non-active real estate salesman, and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Composite Exhibit 3).
Findings Of Fact General American Realty Corporation was first registered by petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwin who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the president of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James H. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for it. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that the property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowners Service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, in fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquiried in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel, Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent Joseph M. Macko be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J.R. Parkinson and Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Joseph M. Macko 13990 Northeast 6th Ave. Miami, Florida 33161
