The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973." As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation" was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did." Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.
Recommendation Based upon the findings of fact and conclusions of law recite above, it is recommended that: the registration of respondent Charles Shane be suspended for a period of three (3) months; and the charges relating to respondent Richard King be dismissed. Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION THOMAS M. MURRAY, Petitioner, vs. PROGRESS DOCKET NO. 2709 DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING, Respondents. /
The Issue The issue is whether respondent's license as a real estate broker should be disciplined for the reasons stated in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Yolanda Jean Ramsey, was a licensed real estate broker having been issued license number 0012364 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent operated a real estate firm under the name of Ramsey Realty located at 19940 Gulf Boulevard, Indian Shores, Florida. Her husband, Drew Ramsey, was a condominium developer but he was not a licensed realtor. Sandra A. Hawley (Hawley) was a licensed salesperson for Ramsey Realty from April 1981 until she was terminated by respondent on January 6, 1982. She was employed by respondent pursuant to an oral agreement and was to receive a 3% commission on all closed sales. This description of Hawley's compensation arrangement was not contradicted by respondent. Drew Ramsey was then developing several condominium projects in Pinellas County, and Hawley's sales activities were focused on the sale of those condominiums through Ramsey Realty. Hawley was described by respondent as being the best salesperson in the firm. From April 1981 through December 1981, Hawley recalled that her W-2 statement reflected $76,000 in commissions actually received. By the time she was terminated, Hawley represented that she had either closed on units or had firm contracts on other units to earn an additional $279,000 in commissions. Although respondent did not agree she owed Hawley any money due to various setoffs, the $279,000 figure was not credibly contradicted, particularly since respondent's records relating to those sales were allegedly destroyed or lost by respondent at about the time certain civil litigation was begun by Hawley. On January 6, 1982, respondent was terminated by respondent for cause. According to respondent, Hawley was delinquent in making payments to her husband for several condominium units Hawley had bought for investment purposes, and on one occasion, Hawley had not turned over to Ramsey Realty a deposit on a resale of a unit. She was also accused of bouncing checks. After she left Ramsey Realty, Hawley made demand for commissions still owed. Between January and June 1982 she was paid approximately $40,000 by respondent but received nothing after that. She eventually sued respondent in circuit court for the unpaid commissions and obtained a final judgment against respondent on December 10, 1987 for $76,000 plus interest, or a total of $118,618.88. To date, Hawley has been unable to obtain payment of the judgment. At hearing respondent acknowledged that a judgment pertaining to Hawley's unpaid commissions was entered against her and that no appeal of that judgment was taken. According to Ramsey, she has refused to pay Hawley based upon her attorney's advice. Respondent's principal defense against paying the commissions is that Hawley allegedly owes her and her husband substantial amounts of money which offset the earned commissions. Testimony at hearing revealed that these matters have been the subject of extensive and lengthy civil litigation between Hawley and the Ramseys. Hawley represented that she has prevailed in all court actions, and this was not contradicted by respondent. However, none of the judgments and mandates (if an appeal was taken) were made a part of this record. The principal offset relates to a lease-purchase agreement entered into by Hawley and her son, James Monette, Jr., and Drew Ramsey in June 1981 whereby Hawley and her son agreed to lease, with an option to purchase, a restaurant/bar known as The End Zone located on Dale Mabry Avenue in Tampa, Florida. On June 18, 1981 Hawley and her son executed a promissory note in the amount of $170,000 payable to Drew Ramsey and to be secured "by an assignment of commissions of even date herewith". The note also provided that "certain commissions earned by Sandra A. Hawley as a real estate salesperson for Ramsey Realty ... shall be applied as prepayments on account hereof." This was confirmed in a letter sent by Hawley to respondent on June 18, 1981. The letter authorized Ramsey to "pay one-half of all commissions which I have earned or will earn from working as a real estate person for Ramsey Realty to Drew Ramsey on account of the indebtedness under the Note until it is paid in full." The letter further provided that if Drew felt "insecure" about the note, Yolanda was authorized to "assign such greater percentage of (her) commissions to Drew Ramsey on account of the indebtedness until it is paid in full." Hawley admitted signing the promissory note but pointed out that she had earned enough commissions to easily pay off the note. She contended that the transaction was a ploy to allow Ramsey to retain all of her commissions and thereby deprive her of adequate capital to successfully operate the restaurant. Hawley further asserted that the transaction was later declared null and void in one of the civil actions between the parties because of certain fraudulent representations made by Drew in inducing her to enter into the agreement. However, the final judgment, which is the best evidence of the outcome of the suit, is not of record. On October 1, 1981, an agreement and promissory note was executed by Hawley wherein she promised to pay Drew Ramsey and his partner, George Karpay, $58,162.90 plus 18% interest for monthly payments owed Ramsey and Karpay on five condominium units Hawley had previously purchased from them. The note was secured by Hawley's commissions earned at Ramsey Realty. Hawley acknowledged that the signature on the documents was her own but contended that the documents had been altered after she signed them. On October 1, 1981, Hawley also executed an assignment of commissions whereby she agreed to authorize Ramsey Realty to disburse all commissions earned to Drew Ramsey and Karpay until the promissory note described in finding of fact 9 was satisfied. Again, Hawley acknowledged that the signature appeared to be her own but she contended the document was altered after it was signed. According to respondent, the commissions earned by Hawley were not held in the firm's escrow account. Instead, while Hawley was still an employee, such moneys were disbursed by the title company at closing directly to Ramsey Realty, and then Ramsey wrote a check to Hawley as commission compensation. After Hawley was terminated, the manner in which Ramsey received Hawley's earned commissions and their subsequent disposition are not of record. However, respondent represented, without contradiction, that they were not held in the firm's escrow account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating subsection 475.25(1)(d) and that her broker's license be suspended for three years. The other charge should be dismissed. DONE AND ORDERED this 14th day of December, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of December, 1989.
The Issue Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondents are guilty of failing to maintain the required entrance sign on or about the entrance to the principal office in violation of Subsection 475.22, Florida Statutes and Rule 21V-10.024, Florida Administrative Code and are therefore in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that Respondents are guilty of failing to register a branch office in violation of Subsection 475.24, Florida Statutes, and Rule 21V-10.023, Florida Administrative Code, and therefore are in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondent Max S. Long, Jr., is guilty of failing to be a signatory on all escrow accounts in violation of Rule 21V-14.010, Florida Administrative Code and therefore is in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondents' are guilty of failing to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Subsection 475.25(1)(k), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that Respondents' are guilty of culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent Max S. Long, Jr. was at all times material hereto a licensed real estate broker in the State of Florida having been issued license numbers 0253744, 0253742, and 0258199 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker for Stonegate Realty, Inc., 2325 Ulmerton Road, Clearwater, Florida 34620 and Queens Harbour Realty, Inc., 711 San Pablo Road North, Jacksonville, Florida 32225. Respondent Long has been a licensed salesperson since 1974 and a licensed broker since 1978. The Respondent Stonegate Property Management Corporation was at all times material hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0240617 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 2325 Ulmerton Road, Clearwater, Florida 34620. The Respondent Stonegate Realty, Inc. was at all times material hereto a corporation registered as a real estate broker in the State of Florida, having been issued license number 0182660 in accordance with Chapter 475, Florida Statutes. The last licensed issued was at the address of 2325 Ulmerton Road, Clearwater, Florida 24620. The Respondent Queens Harbour Realty, Inc., is now and was at all times material hereto a corporation registered as a real estate broker in the State of Florida, having been issued license number 0257554 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 711 San Pablo Road North, Jacksonville, Florida 32225. On or about October 17, 1989, DPR investigator Marjorie G. Maye (hereinafter Maye) conducted an inspection and audit of Respondents' offices and escrow accounts in Clearwater. Maye discovered that the Respondents did not display an office entrance sign for the corporations. Since the inspection Respondents have erected the proper sign which has been displayed continuously since that date. Respondents were operating an unregistered branch office located at 13280 Broadhurst Loop S.W., Ft. Myers, Florida. Respondents did not register the office because the salesperson was an employee of the developer and sold only property at that project. Since the inspection Respondents have properly registered the branch office. At the time of the inspection and audit Respondent Long was not a signatory on Respondents' escrow accounts. Since the inspection, Respondent Long has been added as a signatory to the escrow accounts. At the time of the audit Respondents' escrow account titled Queens Harbour Realty - Escrow account number 0089798317 maintained at C & S Bank of Pinellas County on September 30, 1989, had a current liability of $54,010.66, a reconciled bank balance of $8,537.99 thus indicating a shortage of approximately $45,472.67. Ultimately, the Respondents reduced the shortage to zero and the accounts balanced. At the time of the inspection and audit, Ed Perry, CPA, was employed by Respondent Queens Harbour in the accounting department and was in charge of the Queens Harbour Realty - Escrow account which was maintained out of Clearwater, Florida. George Patterson and Ed Perry, CPAs, and other individuals were signatories on this escrow account. The escrow accounts were used for deposits on real estate sales and leases. The funds were disbursed at sale or upon termination of the lease. Some of the funds received by Respondents were not required to be held in escrow. Eventually the deposits from several projects were placed in the escrow accounts. Disbursements were made from the escrow accounts even though the funds were not required to be deposited in the escrow account. This resulted in confusion as to the exact amounts of funds required to be maintained in the escrow accounts and which funds were available for distribution. Shortages in the escrow accounts were a result of intercompany loans and disbursements, as well as, from the co-mingling of funds. These were made at the direction of George Patterson. On or about October 13, 1989, Ed Perry, CPA and George Patterson, supervisor of the accounting department, signed a $6,000.00 check from Respondents' escrow account which was used for the purchase of a vehicle for Queens Harbour Yacht and Country Club. When this error was discovered the $6,000.00 was re-deposited to the escrow account. Respondent Long, became the broker for Stonegate Realty at the request of his cousin, Fred Bullard, the President of the Bullard Group, and a majority shareholder in Queens Harbour Realty, Inc. He was not aware of and did not sign any of the checks representing the inter-company loans or for the purchase of the vehicle. He derived no benefit from these loans. Respondent Max S. Long, Jr. understood at all times material to the allegations in the Administrative Complaint that an escrow account is one used to hold funds belonging to third parties and that he, as the real estate broker, acted in a fiduciary capacity to those third parties. Respondent Long relied completely on the corporation's in-house accountants to properly prepare the accounting for the escrow funds. Since the DPR investigation, there have been no shortages in the escrow account, monthly reconciliation reports are prepared and signed by Respondent Long, and the escrow accounts are routinely reviewed by Respondent Long. Respondent Long has had no prior disciplinary proceedings before the Commission.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondents be found guilty of having violated Subsections 475.25(1)(b), (e) and (k), Florida Statutes, (1989), as charged in the Administrative Complaint. It is further RECOMMENDED that Respondents shall jointly pay a penalty of $500 and that Respondent Long's real estate licenses be suspended for a period of one year, followed by a one year period of probation upon such conditions as the Florida Real Estate Commission shall reasonably impose. DONE and ENTERED this 21st day of August, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 15, 16, 17, 18, 19, 20. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, Respondents' proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42. Rejected as irrelevant: 9, 13, 40. COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kelli Hanley Crabb, Esquire Post Office Box 4110 St. Petersburg, Florida 33743 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Jack L. McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Donald L. Stuart is a real estate broker registered with the Florida Real Estate Commission. He holds license number 215732 with expiration date of 3/3/77. In the renewal application received April 3, 1975 by FREC, Stuart reported his business address to be 407 S. Old Dixie Highway, Vero Beach, Florida. In early August, 1976 an investigator for FREC visited the address on South Old Dixie Highway and found a vacant house with no real estate broker's sign displayed. Inquiry in the neighborhood revealed the house had been unoccupied for a considerable period of time. By Election of Rights form submitted November 26, 1976, Stuart acknowledged receipt of the Administrative Complaint by checking Block 1 in which he acknowledged having read the explanation of rights, did not dispute the allegations made in the Administrative Complaint, and requested a hearing. Notice of Hearing was forwarded by Certified Mail, to the same address, viz. 407 S. Old Dixie Highway, Vero Beach, Florida to which the Administrative Complaint had been forwarded.
