Recommendation It is recommended that the Complaint against the Respondent be dismissed. ENTERED this 9th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Staff Attorney, Florida Real Estate Commission 17 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lawrence Scherr 2222 Southwest 22nd Terrace Miami, Florida 33145 C. B. Stafford, Executive Director Florida Real Estate Commission 699 Lee Road Winter Park, Florida 32789
The Issue Whether Kenneth M. Olson, Jr., is guilty of the allegations alleged in the Administrative Complaint?
Findings Of Fact Kenneth M. Olson, Jr., is a registered real estate broker holding Certificate No. 0065634 issued by the Florida Real Estate Commission. Gary Ater, Pasquale DeLucia, John Ricker, Helen Pendleton, and Fred Snook were all real estate salesmen employed in the Fourth Street Office of Olson & Associates. On or about March 31, 1975, the aforesaid salesmen, to include the office manager, Fred Snook, left the employment of Kenneth M. Olson, Jr., without notice and became salesmen for Citrus Realty. Upon their leaving, only one full time real estate salesman was left in the Fourth Street Office. Kenneth M. Olson learned that the aforesaid real estate salesmen had left his employ when members of the public and other real estate salesmen and brokers called his other office advising that the phones at the Fourth Street Office were not being answered. Blodwen Clayton, a registered real estate salesman with Olson and who as a secretary-receptionist had organized the records and supplies for the Fourth Street Office, was sent to said office to determine what problems existed there. She determined that the aforementioned sales people were gone and the office closed and locked. Also office records, supplies, a cross listing directory which had just been purchased, and an electric typewriter were missing. Subsequent audit of the account of the Fourth Street Office indicated that certain payments had been made to Fred Snook which were inappropriate to include reimbursement for flowers sent clients and a party held in the month of February. A telephone bill for that office indicating a call from Havana, Cuba, had been billed to the telephone of the Fourth Street Office at a time when Fred Snook was manager and responsible for the office. As a result of the personnel loss, Olson chose to close the Fourth Street Office and dispose of the property. The events alleged in Counts 2 through 9 discussed in paragraphs 4 through 11, following, relate to events which occurred between Olson and the aforesaid sales personnel after they left Olson's employ. No evidence was presented by the Florida Real Estate Commission to substantiate its allegations contained in Count 1. The Petitioner argued that the admission by the Respondent in his Answer that the Commission paid to Joseph Boiros was paid by a check drawn on the Olson & Associates Real Estate operating account is sufficient to sustain the alleged violation that Olson did not hold Boiros' commission in a trust account and promptly account and pay the commission to Boiros. Gary Ater was a registered salesman employed by Olson who by virtue of negotiating and obtaining a contract for the sale of property between William and Eleanor Zeisler and Arthur and Simone Clinton earned a commission when this sale closed on or about April 10, 1975. Pursuant to the employment contract between Ater and Olson, the commission was due and payable twenty-four hours after closing period. On May 1, 1975, Gary Ater demanded payment by registered mail from Kenneth M. Olson, Jr. Ater received payment of the commission in December, 1975, after having obtained a judgment in Small Claims Court which was satisfied by Olson prior to being recorded. Pasquale DeLucia, a registered salesman employed by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Sherwood and Annie Clrk and Wayne and Theresa Costin on or about February 7, 1975. Upon the closing of said sale on or about March 31, 1975, DeLucia earned a commission due and payable within twenty-four hours under the employment contract between DeLucia and Olson. On or about May 1, 1975, DeLucia demanded payment from Olson by registered mail of said commission. DeLucia subsequently sued Olson in Small Claims Court and obtained a judgment which was satisfied by Olson prior to the judgment being recorded. On or about March 11, 1975, DeLucia negotiated and obtained a deposit receipt contract for the sale of property between Norman and Sally Hassan and Elsworth and Dora Crispin. Said transaction closed on or about June 30, 1975, whereupon DeLucia earned a commission. On or about June 23, 1975, DeLucia demanded payment of the commission. DeLucia subsequently sued Olson for the amount of commission due and received judgment in Small Claims Court which Olson paid prior to the recording of the judgment. Fred Snook was a registered real estate salesman and manager of Olson's office referred to as the "Fourth Street Office." In his capacity as a salesman, Snook obtained a listing for the sale of real property upon which David H. Gibson, a registered real estate salesman employed by Olson, negotiated a contract for sale and purchase between Hinsdale W. Woman's Clinic Profit Sharing Fund and Norman and Celia Savoy on or about July 16, 1973. This transaction closed on or about August 31, 1973, whereupon a real estate commission in the amount of $6,000.00 was paid at closing with an additional $12,000.00 in real estate commission being paid in monthly installments to Olson. From the $12,000.00, Snook was to be paid $45.00 per month until his commission was paid in full. Said payments were made until March, 1975, at which time Snook received no further payments. John J. Ricker, employed by Olson as a registered real estate salesman, obtained a listing on real property owned by Arthur and Simone Clinton. This property was subsequently sold by Gary A. Ater, who is also employed by Olson as a registered real estate salesman. By virtue of having obtained a listing, John J. Ricker was entitled to a commission upon closing of the transaction, which occurred on or about April 10, 1975. Said commission was not paid Ricker until September, 1975, when the amount of the commission was paid as settlement of of an action pending between Ricker and Olson. Helen D. Pendleton, who is employed as a registered real estate salesman by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Byron Salvin and John and Iva Blake. Said transaction closed on or about May 20, 1975, whereupon Pendleton earned a commission under her employment contract with Olson. Pendleton subsequently requested payment from Olson but was not paid. She thereafter instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not been satisfied. Helen Pendleton also negotiated a real estate purchase agreement between Albert and Bonnie Older and Otto and Eleanor Rodeck. Said transaction closed on or about May 12, 1975, at which time the commission was earned by Pendleton pursuant to her employment agreement with Olson. Pendleton subsequently made demand for said commission. When she did not receive her commission, she instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not bee satisfied. Further, Pendleton negotiated a deposit receipt contract for the purchase and sale of real property between Diane Hammond and Marjorie McCauly on or about March 8, 1975. This transaction closed on or about May 23, 1975, whereupon Pendleton earned a commission, which she did not receive after having made demand for payment on Olson. She sued and obtained judgment for this commission, said judgment not yet having been satisfied as of the date of hearing. On or about February 25, 1975, Helen D. Pendleton entered into an apprenticeship with Kenneth M. Olson, Jr. As a condition precedent to undertaking to be Pendleton's apprenticing broker, Olson required that Pendleton and he execute a noncompetition agreement. The Florida Real Estate Commission presented no evidence with regard to the allegations of Count 11. The Petitioner argued that the Respondent, Olson, had admitted the allegations contained in paragraphs 1, 2, 3, and 4 of Count 11 in his Answer, and that based upon those admissions Olson had violated the provisions of Rule 21V-14.06, Florida Administrative Code, and therefore was in violation of Section 475.25(1)(d), F.S. Donald A. Ehmig was employed as a registered real estate salesman by Olson. In that capacity Ehmig negotiated real estate transactions between Flannagan and Myers, Mendenhall Tsolaks and Caraway and Dickmen. These transactions were closed on January 22, January 15, and April 1, 1975, whereupon Ehmig earned a commission on each transaction pursuant to his employment agreement with Olson. Evidence was received that indicates that Olson, as co- signer of a note with Ehmig, had paid $1,172.36 of a deficiency judgment on December 5, 1974. See Exhibit 29, check to St. Pete Sports Car Center in the amount of $1,172.36 on the account of Olson & Associates. Ehmig candidly admitted that it was his intent that Olson, as co-signer, incur the financial loss upon his (Ehmig's) default of the note. The amount of monies owed Ehmig by Olson and the amount of monies owed Olson by Ehmig were approximately the same. No evidence was presented that Kenneth M. Olson, Jr., knew or had any reason to know that Allain Rimar had tendered an earnest money deposit in the amount of $500.00 on the purchase of certain real property negotiated through his saleswoman, Susan Lee Stuart. Stuart's testimony was that Jack Fulmer was the broker involved in the transaction and that to her knowledge, Olson had no knowledge of the earnest money deposit. Fulmer, who was originally charged in the Complaint, has died since issuance of the Complaint, and the charges against Fulmer and Susan Lee Stuart were dropped by the Florida Real Estate Commission.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer would recommend that the Florida Real Estate Commission order Kenneth M. Olson, Jr., be directed to pay the judgment(s) obtained by Helen Pendleton, or face suspension for 30 days, and further that Olson receive a letter of official reprimand. DONE AND ORDERED this 16th day of March, 1977, in Tallahassee, Florida. Stephen F. Dean Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Seymour A. Gordon, Esquire 153 Central Avenue Post Office Box 265 St. Petersburg, Florida 33731 =================================================================
The Issue The Administrative Complaint alleges that the Respondents are guilty of fraudulently withholding a commission and failing to account for said commission. The Respondents contend that there was no commission owed to the salesperson because the salesperson did not obtain the listing contract upon which the transaction closed and had been discharged for cause before a contract for purchase was obtained. The factual issues upon which the case is determined is whether the listing contract upon which the transaction closed was obtained by the salesperson who claimed the commission, and whether the contract for purchase was received before the salesperson was discharged for good cause. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaint and at the time of hearing, the Respondent, Jacqueline B. Ousley, held real estate broker's license number 0333339 and operated the Respondent corporation, Touch of Class Realty, Inc., which held corporate real estate broker's license number 0218522. Both licenses were issued by the Florida Real Estate Commission. (See Petitioner's Exhibit 1.) Diane Carroll was employed by the Respondents as a real estate salesperson from February to June l2, 1982. On June 13, 1982, Ms. Carroll was discharged for good cause by the Respondents. On May 25, 1982, Ms. Carroll obtained an open listing on the Breezeway Motel, 2001 North Dixie Highway, Lake Worth, Florida, from Carl C. Summerson. This listing was good through June 25, 1982. (See Petitioner's Exhibit 2.) Based upon this contract, the Respondents showed the property to prospective buyers, to include Anthony and Deborah Hedley, the ultimate purchasers of the property. However, after the Hedleys had become interested in the property, the Respondents became aware that Summerson was not the sole owner of the Breezeway Motel. Because of the interest of the Hedleys and the prospects of selling the property, the Respondents sought and obtained an exclusive listing agreement from both owners of the motel, Carl Summerson and Roy Chapin, which was signed on June 14, 1982. As an exclusive listing, this contract supplanted the open listing obtained by Ms. Carroll on May 25, 1982. The Respondents obtained an offer to purchase the Breezeway Motel from the Hedleys on June 16, 1982, which offer was accepted by Summerson and Chapin. This transaction closed, and the Respondents received one-half of the ten percent commission, $33,800. The custom of the profession is that salespersons earn a listing commission on a listing contract obtained by them while they were employed if a contract for the purchase of the property is obtained before the salesperson leaves the broker's employment. The Respondents tendered a "referral fee" of $845 to Ms. Carroll, as opposed to a salesperson's share of the commission which was $5,070. Ms. Carroll has a civil action pending, seeking to obtain payment of the commission.
Recommendation Having found the Respondents not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Florida Real Estate Commission dismiss the Administrative Complaint against the Respondents, Jacqueline B. Ousley and Toch of Class Realty, Inc. DONE and RECOMMENDED this 3rd day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 3rd day of October, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Randy Schwartz, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32801 =================================================================
The Issue The Florida Real Estate Commission, herein sometimes called the Plaintiff or the Commission, seeks to revoke or suspend the license of the Defendant, Alan Leavitt, a registered broker, based on allegations that he violated Subsections 475.25(1)(a) and (b), Florida Statutes, as alleged in its administrative complaint filed on December 9, 1976. As is set forth more particularly in its two count administrative complaint, the Commission alleges that the Defendant, while employed as an active broker for Special Realty Corp., acted in his own behalf by advertising and selling several unimproved lots located in Walton County, Florida. It is further alleged that the Defendant made statements in an effort to sell said lots indicating that the lot sizes were 50 feet wide and 150 feet deep, whereas in actuality the lots were only 25 feet wide and 105 feet deep. The complaint alleges that the purchaser consummated the sale for the above referred lots based on the representations made respecting the lot sizes and upon subsequent examination found that the lot sizes were substantially less whereupon the purchaser demanded a refund from Defendant, to no avail. Based thereon, it is alleged that the Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, etc., in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. In count two it is alleged that the Defendant, while registered as an active real estate broker, permitted Isaac Shelomith and Barry Shelomith, registered real estate salesmen, to unlawfully operate as real estate salesmen out of his offices and encouraged them to engage in the sale of lots in Walton County, Florida by means of unscrupulous and unlawful methods involving fraud, and other breaches of trust in violation of Subsection 475.25(1)(a), and (b), Florida Statutes. For all of the foregoing reasons, the complaint alleges that the Defendant is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor, the pleadings and the admissions contained therein including the arguments of counsel, I make the following: The Defendant, who holds license number 0051095, was a registered real estate broker during times material to the allegations contained in the administrative complaint filed herein. During early October, 1975, Defendant placed in the classified section of the Miami Southside Newspaper, an ad relative to real property located in Walton County, near DeFuniak Springs. On October 14, 1975, Mr. Lionel G. Rush, an unemployed marketing executive, responded to the aforesaid ad to inquire about the advertised lots. He later purchased four lots from the Defendant for the sum of $1,500. The four lots were described in a warranty deed dated October 17, 1975, from Defendant to Lionel G. Rush and Susie M. Rush, his wife. (See Commission's Exhibit #4). Mr. Rush stated that the Defendant advised him that each individual lot was 50 feet in width and 150 feet in depth and it was based on these representations that he purchased the four lots described in the above referenced warranty deed. Mr. Rush, after purchasing the lots, investigated the lot sizes, approximately three weeks later by calling the county clerk for Walton County who advised that the lot sizes were approximately 25 by 105 feet each. He thereafter contacted the Defendant who checked to determine the accuracy of the lot sizes and was able to determine that the lot sizes were 25 by 105 feet as Mr. Rush had informed. Mr. Rush indicated that but for the inaccurate lot sizes, he was pleased with the property purchased from the Defendant. Mr. Rush testified that he advised the Defendant that there were in his opinion, several options available to satisfy or otherwise cure his purchase problems. He first suggested that the Defendant refund a portion of his purchase money to reflect the actual lot sizes conveyed or alternatively Defendant deed over to him another four lots to compensate for the alleged inadequacy of the lot sizes. Alan Leavitt, the Defendant herein, acknowledged that he sold four lots to Mr. Lionel Rush and his wife in Country Club Heights in Ft. Walton Beach. He denied that the lot sizes were recorded by him or upon his direction as the description is now reflected on the warranty deed entered herein. (See Exhibit 4). Defendant testified that after selling the lots to the Rushes, he received a phone call approximately three weeks later from Mr. Rush complaining about the lot sizes. Mr. Rush expressed his desire to get a refund of the purchase money paid or to seek some other restitution. Defendant checked into the matter and was able to determine that the lot sizes were in fact 105 feet by 100 feet. When Defendant was unable to resolve the matter with the Rushes, he offered to return their money back and in fact purchased a money order for the full amount of the purchase price and agreed to absorb all incidental costs connected with the purchase of the property. He stated that the refund offer was made after Mr. Rush tried to bargain over price and in his opinion was trying to get the lots for what was in his opinion, a "ridiculously low price." He testified that when he discerned this, he had no further dealings with Mr. Rush and was only interested in refunding the purchase money price once the Rushes executed a proper deed returning the property to him. He (Defendant) denied ever misrepresenting the lot sizes. Isaac Shelomith, a registered real estate salesman during times material, was called and denied having any employment relationship with the Defendant in any manner during times material to the allegations contained in the administrative complaint filed herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 1st day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David B. Javits, Esquire 3628 Northeast Second Avenue Miami, Florida 33137 Alan Leavitt 7100 Fairway Drive Miami Lakes, Florida 33014 Bruce I Kamelhair, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue The issue to be resolved in this proceeding concerns whether the Respondent's Florida real estate license should be subjected to disciplinary sanctions based upon the charge that the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice of real estate salespersons and brokers licensed pursuant to the authority of Chapter 475, Florida Statutes, and rules promulgated pursuant thereto. The Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and related rules. The Respondent, Shirlee Jeanette Pearson, is and at all times material hereto, a licensed real estate salesperson, having been issued Florida license number 0389549, pursuant to Chapter 475, Florida Statutes. The last license issued was as a non-active salesperson with a home address of 6124 The Oaks Lane, Pensacola, Florida 32504-7361. On or about December 4, 1989, the Respondent entered into a Listing Agreement with Alexis Reginald Harris and Margaret Harris (hereinafter "Sellers"). The Listing Agreement was executed by the Sellers and the Respondent on behalf of Old South Properties, Inc. The Agreement allowed the Respondent to represent the Sellers in the prospective sale of their property to Michael Jones. Subsequent to showing the property to Mr. Jones, the Respondent presented the Sellers with a Contract for Sale and Purchase dated December 6, 1989. The Contract reflected an earnest money deposit of $500.00 to be held by Old South Properties, Inc. The Contract was dated December 6, 1989 and included a provision whereby Mr. Jones would obtain conventional financing. On or about December 19, 1989, the Contract was amended to allow for veterans administration financing. The Contract was amended on or about January 17, 1990 to provide for a cash sale. Before agreeing to the amendments to the Contract, the Sellers demanded an additional $2,500.00 earnest money deposit. The amended Contract was initialed by the Sellers and taken by the Respondent to the prospective purchaser, Mr. Jones. Mr. Jones initialed the changes, signifying agreement to them. The Contract, as amended, reflected an earnest money deposit in the total amount of $3,000.00 to be held by Old South Properties, Inc. The Contract was thus finalized and the Sellers vacated the property around the first of February, 1990 in anticipation of the closing of sale, which was scheduled for the end of February. The Respondent was aware that the Sellers had moved from the property in expectation of the sale. On or about February 25, 1990, the Respondent told the Sellers that she had never actually received the additional $2,500.00 earnest money deposit called for by the January 17, 1990 amendments to the Contract. This was the first time that the Sellers became aware that the earnest money deposit had not been received by the Respondent. When the Respondent advised them that she had not received the earnest money deposit, as provided for in the Contract, she assured them that the closing would still occur as scheduled on February 28, 1990. On February 28, 1990, the Sellers signed the necessary documents to close the sale and left town. The Respondent told the Sellers that Mr. Jones would sign the papers later on the same day. The Sellers left the keys to the house with their daughter, who would remain in town, upon their departure. The Sellers advised the Respondent that Mr. Jones could obtain the keys from their daughter when the closing documents had all been signed. Subsequent to February 28, 1990, the Sellers' daughter called and advised them that the sale had not closed. The Sellers thereafter retained an attorney, and a civil lawsuit was filed against Old South Properties, Inc. and the Respondent. The court in that case found that the Respondent had breached her fiduciary duty to the Sellers and awarded damages accordingly. Ron Giles ("Giles") was employed as vice president and sales manager of Old South Properties, Inc. at the time the Respondent was employed there as a sales associate. Sometime in February of 1990, the Respondent went to Giles and informed him that she had acknowledged receipt of a $3,000.00 earnest money deposit on the Harris/Jones Contract, but, in fact, had only received $500.00. Giles told the Respondent to immediately contact the Sellers and advise them that the $2,500.00 earnest money deposit had not been received. The Respondent showed Giles a $2,500.00 Promissory Note that she had obtained from Mr. Jones, representing the deposit amount that she had not actually received. Giles went to James Porter, the broker for Old South Properties, Inc., and advised him of the problem with the Harris/Jones Contract. Mr. Porter is now, and was at all times material to the allegations of the Complaint, the President of and the qualifying broker for Old South Properties, Inc. Mr. Porter hired the Respondent as a sales associate for Old South Properties, Inc. sometime in August of 1989. Upon learning of the problem with the Harris/Jones transaction, Mr. Porter had a meeting with the Respondent; and the Respondent admitted to Mr. Porter that she had not informed the Sellers that she had not received the $2,500.00 additional earnest money deposit called for by the amended Contract. When the transaction failed to close, Mr. Porter made efforts to resolve the Sellers' complaint, but was unsuccessful; and the lawsuit ensued. The Sellers were awarded damages by the court, and Mr. Porter paid the Final Judgment entered against Old South Properties, Inc. and the Respondent. The Respondent then agreed to pay Mr. Porter back for the funds he expended in satisfying the judgment; however, the Respondent never actually paid Mr. Porter.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, recommended that the Respondent be found guilty of having violated Subsection 475.25(1)(b), Florida Statutes, as charged in the Administrative Complaint, by being guilty of culpable negligence, that the Respondent's real estate license be suspended for a period of three (3) years, and that the Respondent be required to pay an administrative fine in the amount of $1,000.00. RECOMMENDED this 1st day of July, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 1st day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4932 Petitioner's Proposed Findings of Fact 1-28. Accepted. COPIES FURNISHED: Darlene F. Keller, Director DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack L. McRay, Esq. General Counsel Department of Professional Regulation 1940 North Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Janine B. Myrick, Esq. Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Ms. Shirlee Jeanette Pearson 6125 The Oaks Lane Pensacola, FL 32504-7361
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1982.
Findings Of Fact In December, 1976, Respondent Murray was registered with Petitioner as a real estate broker and Respondent Doyle was registered as a real estate salesman associated with Murray. Negotiations conducted between Murray, Doyle and representatives of Cameron-Brown led to the execution of an Exclusive Right of Sales Agreement, dated December 1, 1976 (Exhibit 1). This agreement was negotiated between the parties with the final draft prepared by Cameron-Brown legal staff and approved by R.E. Murray and Associated (REMA) by Murray and Cameron-Brown Company by a vice-president. The contract covered condominiums that had been foreclosed on by Cameron-Brown and which they were anxious to sell. In addition to providing commissions to be paid on sales, how down payments were to be handled, how the agreement could be terminated, reports to be submitted, defining responsibility for employees, and establishing the closing agent for Seller, the agreement, and Addendum A, provided that Doyle was to have sole control of managing and marketing the project. This latter provision was interpreted by the principal drafters of the agreement to indicate that Cameron-Brown was interested in having Doyle as sales manager of the project but in all respects working under Murray as broker. Little discretion was left to the agent in executing contracts which were provided by the Seller, handling of the escrow deposits or in preparing closing statements, as the manner of carrying out these duties was established by the agreement which also provided that all deposits were to be placed in escrow with the title company designated as closing agent for the Seller. During the period the condominium units were being sold this was the major, if not sole, real estate function performed by REMA. The agreement was carried out to the satisfaction of Cameron-Brown with all units sold quicker than had been expected. From the summer of 1976 through the selling of the condominiums, Respondent Murray, who is also a licensed broker in Minnesota, was engaged in a real estate development project in Minnesota and spent the major part of his time in Minnesota. Murray was in communication with his Clearwater office by telephone and discussed all aspects of the agreement with Doyle doing the negotiations. After the agreement was executed by Murray, he was also available by telephone and was contacted by Doyle and others in the office when they deemed it necessary. Murray signed all listing agreements and approved all salesmen employed. One sales person, Mrs. McGhan, was interviewed by a REMA salesperson and Doyle and her employment was approved by Murray. Because her registration was close to expiration when she was hired, Murray authorized Doyle to sign his, Murray's name to her application to be forwarded to FREC. No effort to emulate Murray's signature was made by Doyle in signing Murray's name on the McGhan application. During the period involving the sales of these condominiums Murray received weekly reports on the progress of the sales and was in frequent contact with the office. Procedures to be followed in the REMA office had been established by Murray orally and in written memoranda and were, after the charges herein involved were brought, published in a Procedures Manual, a copy of which was admitted into evidence as Exhibit 7. Respondent Doyle at all times here involved was employed by REMA as a salesman. Doyle holds an inactive real estate broker's license in California and has been a licensed Florida real estate salesman since March 1976. He passed the C.P.A. exam in California in 1970 and also holds a Florida Mortgage Broker's license. He has a Master's degree from UCLA in Real Estate and Urban Land Economics, and is a certified teacher at St. Petersburg Junior College, teaching Real Estate Finance since 1977. During the negotiations leading up to the Exclusive Right of Sale Agreement with Cameron-Brown, Doyle did most of the negotiations for REMA and John Sullivan, an employee of Cameron-Brown, did the negotiations for Cameron- Brown. In conducting these negotiations, Doyle was in frequent communication with Murray and Murray was the final approving authority for REMA. Doyle was authorized to sign checks drawn on the REMA escrow account, but no evidence was presented that he ever signed checks on this escrow account or that it would have been wrong had he done so. During the period Murray was spending most of his time in Minnesota, the principal efforts of REMA were involved in the condominium project and none of the earnest money deposits there received were placed in REMA escrow account.
Findings Of Fact Respondent, who was 54 years old at the time of the hearing, grew up in Blountstown, where he knew Ralph W. and Kate Foster, and their three children: Ralph, Jr., Alice and Mary. Kate Foster was his first grade teacher. Only Mary survives. Alice died in 1971, leaving two children. Ralph, Sr., died in 1973, less than two weeks before Kate died. Ralph, Jr., died in 1974, leaving Folly Hayes Foster a widow. In 1949, respondent moved to Mexico Beach, Florida, and in 1950, he went to work for Mexico Beach Corporation, selling and renting property. In that year he registered with petitioner as a real estate salesman. He is presently a registered real estate broker. Over the years, the Fosters acquired various parcels of Mexico Beach real estate and built cottages; Mary and Alice each ended up with a beach cottage, but for many years Ralph, Jr., had no cottage. Kate Foster wanted her son to have her cottage after her death. She consulted a lawyer in Blountstown who drew a deed in favor of Ralph, Jr., reserving in Kate a life estate. This deed mistakenly contained the legal description not of Lot 8, the improved lot Kate intended to convey, but of an adjoining, unimproved lot. Kate did not notice this when she executed the deed and everybody in the family was under the impression that Lot 8 had been conveyed. After her mother's death, Mary saw to it that the rental income from Let 8 was deposited first to her brother's account, then, after his death, to the account of Folly Hayes Foster. In 1975, Polly Hayes Foster told Mary that she wanted to sell Lot 8. As a result, Mary asked respondent to try to sell Lot 8. According to tax records respondent had copies of at the time, "Foster, R.W." had title to the property. Respondent had kept up with the Fosters and, like the family itself, was under the impression that Polly Hayes Foster had acquired Lot 8 upon her husband's death. Respondent showed Lot 8 to James C. and Mary B. Williams, who decided they wanted to buy it. Respondent prepared a warranty deed by filling in a form. Petitioner's exhibit No. 1. Among the items filled in was the legal description of Lot 8. In connection with their purchase of this property, the Williamses borrowed money from the Citizens Federal Savings & Loan Association of Port St. Joe, which, on the advice of counsel, accepted a mortgage on Lot 8 as security for repayment of the loan. In the course of trying to sell two lots the family thought belonged to Kate's estate, Mayo C. Johnston, the lawyer handling the estate, discovered that one of the Lots had been conveyed to Ralph Jr. Petitioner's exhibit No. 4. It soon came to light that this lot had been mistakenly conveyed instead of Lot 8. With the active cooperation of respondent, deeds of rectification were drawn and record title was made to conform to the intentions and understanding of everybody involved. Neither the Williamses nor any member of the Foster Family has suffered any financial harm as the result of these transactions.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 1st day of August, 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 Post Office Box 1900 Orlando, Florida 32802 Robert W. Moore, Esquire 203 Third Street Port St. Joe, Florida 32456
