Findings Of Fact At all times referred to in these findings of fact, Carlson was a licensed real estate salesman having been issued License Number 0187184. The last license issued was as a salesman, c/o Pauls Real Estate and Investments, Inc., 441 East Shore Drive, Clearwater Beach, Florida 33515. From October 13, 1982, to June 28, 1983, Carlson was licensed as a real estate salesman in the employ of corporate real estate broker Alliance Real Estate, Inc. of which Nicholas G. Mastro was a qualifying broker and officer. During her employment, Carlson was employed to solicit and obtain landlords and tenants in connection with the rental property management brokerage business of Alliance Real Estate, Inc. Carlson worked out of Alliance's Clearwater Beach office, ten miles from the main office on Gulf-to-Bay Boulevard, Clearwater. Generally, Alliance's official policy was that the originals of property listings, property management agreements and rental agreements were to be maintained at the main office, with work copies filed at the Beach office. Correspondence and miscellaneous property management papers, such as invoices, frequently are maintained exclusively at the Beach office. Funds were to be deposited into, and checks were to be written out of, Alliance's operating account by Alliance's staff at the main office. However, due to the distance between the main office and the Beach office, it was inefficient and inconvenient for Carlson to follow the official policies and procedures. Instead, Carlson began using her own personal bank account as a conduit for funds flowing to and from Alliance (including brokerage fees to Alliance). She also ceased following the procedure for maintaining certain original papers at the main office and even began maintaining files at her home. Alliance knew or should have known that Carlson was using her personal bank account as a conduit for Alliance funds. Alliance's ledgers showed these transactions, and Alliance's bookkeeper wrote reimbursement checks to Carlson for some of them. Since Ronald Lohr, Alliance's qualifying broker with supervisory responsibility over the Beach office, did not testify, the evidence did not preclude the possibility that he had actual or constructive knowledge of this deviation from official policy. Regarding Carlson's maintenance of files (including original papers normally kept at the main office) at her house, Alliance did not have actual or constructive knowledge of this deviation from official policy. Rather, Alliance's minimal supervision of the Beach office gave Carlson the opportunity to deviate from that official policy without detection. Through the combined effect of these circumstances, Carlson was able to operate as a salesman for Alliance in connection with the following transactions while concealing the transactions from her employer and wrongfully retaining brokerage commissions which properly should have been paid over to Alliance. At the conclusion of these transactions (except one), Carlson "pitched" her file on it. In February, 1983, Carlson solicited and obtained $1,000.00 as rental payments from William Russ, as a tenant, for the rental of Unite 908, Clearwater Point Condominium, 830 S. Gulfview Blvd., Clearwater Beach, Florida owned by Bernhardt Elsen. In March, 1983, Carlson solicited and obtained $680 from Carl Dotterman, as a tenant, for the rental of Elsen's condominium. Notwithstanding that Carlson had received $1,680, Carlson advised Bernhardt Elsen that she had only received $1,600. Carlson disbursed $1,513.30 to Bernhardt Elsen, calculated as $1,600, minus $160 being a 10 percent management fee, plus $73.39 as reimbursement for payment of an electric bill. Carlson collected, received and disbursed the Russ and Dotterman rental money in her own name. She engaged in the Elsen rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In February and March, 1983, Carlson negotiated for her son Martin Carlson, as tenant, and Dr. Rolando Perez, as owner, for the rental of Unit 207, Commodore Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Dr. Rolando Perez. Rent was to be $800. Carlson, for her son, paid Dr. Rolando Perez $720 calculated as $800 minus $80 being a 10 percent management fee. Carlson collected, received and disbursed the Carlson rental money in her own name. She engaged in the Perez rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In April, 1983, Carlson solicited and obtained $500 as rental payment from a Mr. and Mrs. Scalise, as tenants, for the period April 9, 1983, to April 15, 1983, for the rental of Unit 701, Sailmaster Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Anthony and Jeanette Eman. On or about April 14, 1983, Carlson solicited and obtained a $100 rental deposit from Mr. and Mrs. Scalise for the rental of Eman's condominium for a period in 1984. On or about April 15, 1983, Carlson disbursed to Mr. and Mrs. Eman the $100 deposit and $200 of the $500 rental payment with $300 thereof being retained by Carlson as a management fee. Carlson collected, received and disbursed the Scalise rental money in her own name. She engaged in the Eman rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In January and February, 1983, Carlson solicited and obtained $2,400 as rental payments from Ernest Pfau, as a tenant, for the rental of Unit 605, Shipmaster Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Joseph Seta. Carlson disbursed to Joseph Seta $2,160 calculated as $2,400 minus $240 being a 10 percent management fee. Carlson collected, received and disbursed the Pfau rental money in her own name. She engaged in the Eifert rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. On or about June 7, 1983, Carlson solicited and obtained a $100 rental deposit from Lawrence Augostino, as a tenant, for the rental of Unit 706, 450 Gulf Blvd., South Building, Clearwater Beach, Florida, owned by Dr. Donald F. Eifert. Carlson was to hold the deposit until she was able to obtain a listing on the rental property. While waiting for a listing on the Eifert property, Alliance, through Mr. Mastro, became aware of one of Carlson's "secret clients," Mr. Elsen, and confronted Carlson about it. In response to Mastro's demand, she retrieved the entire Elsen file from her home. When Mastro learned about a second "secret client," Dr. Perez, a short time later, Mastro immediately terminated Carlson from her employment on June 15, 1983. Carlson did not advise Alliance of the Augostino deposit and was not able to get a good address for Augostino to return the deposit before she left the Clearwater area to go to Michigan for a month. Carlson collected and received the Augostino deposit in her own name. She engaged in the Eifert rental property management activities without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. As previously alluded to, Carlson produced evidence of having used her personal checking account as a conduit for funds flowing between Alliance and its customers (including brokerage fees payable to Alliance) with the actual or constructive knowledge of Lohr and Alliance's bookkeeper. But Carlson was unable to produce any similar evidence (such as Alliance's ledgers or her cancelled checks) in response to the absence of any Alliance corporate records indicating that Carlson paid any of the brokerage fees generated in the foregoing transactions over to Alliance. Carlson's self-serving and vague testimony that she did not owe Alliance any money was insufficient in this respect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order suspending respondent's license for two (2) years for violating Section 475.25(1)(b), Florida Statutes (1983). RECOMMENDED this 3rd day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1984. COPIES FURNISHED: John Huskins, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32002 Bruce M. Harlan, Esquire 110 Turner Street Clearwater, Florida 33516 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Steven Hall, at all times pertinent hereto, was a licensed real estate salesman and broker. Upon February 15, 1984, he became licensed as a broker. The Respondent was registered with and employed by J. Arnold Ausley Realty from March 31, 1983 to February 15, 1984. J. Arnold Ausley was a licensed real estate broker and operated as Ausley Properties during times pertinent hereto. The Petitioner is an agency of the State of Florida charged with regulating the licensure and practice of realtors in the State of Florida and enforcing the practice standards for realtors embodied in Chapter 475, Florida Statutes. On February 4, 1984, the Respondent, in his capacity as a licensed salesman for Ausley Properties, arranged a contract between Champak Bhoja and Kishor Patel, as purchasers of a certain piece of real estate owned by one John D. Gilbert. In connection with that contract the Respondent obtained a $2,000 check as a deposit from Mr. Patel. At Mr. Patel's request the Respondent held this check without negotiating it awaiting Patel's instruction that sufficient funds were on deposit to honor the check. The Respondent waited four weeks and received no such instructions from Mr. Patel. The Respondent therefore contacted Patel, who was in Nebraska at the time, to tell him that he felt legally obligated to deposit the check. The check was deposited and was returned for insufficient funds. On March 19, 1984, Mr. Patel gave the Respondent a replacement check in the amount of $2,000. Mr. Hall asked Mr. Patel to make the check out to him since he had in the meantime become a broker and wanted credit for this transaction in his own business. He also informed Mr. Patel that he would need to use the money for his own personal expenses, in the nature of a "loan." Mr. Patel, however, made the check out to the "Ausley Properties Escrow Account." The Respondent and Mr. Patel had been involved in other business ventures together during the course of which Mr. Patel had already lent the Respondent, on different occasions, a total of approximately $4,000. This course of dealing was continued in the present instance, from the Respondent's viewpoint, when the Respondent informed Mr. Patel that he needed the $2,000 for personal expense purposes and would pay it back as a loan. He believed Mr. Patel assented to that arrangement at the time. The sales contract at issue ultimately failed to be consummated due to Mr. Pate1 and Mr. Bhoja not meeting the required contingency regarding debt financing. Approximately fifteen days after the contract's closing date passed, Mr. Patel made a demand upon the Respondent for the return of the $2,000 deposit. The Respondent failed to return it at that time but assured Mr. Patel that he would repay the money and needed more time to obtain the necessary funds. The Respondent had not deposited the check in the Ausley Properties Escrow Account because such an account did not exist, although the Respondent had urged Mr. Ausley on a number of occasions to set up such an account. The Respondent rather cashed the $2,000 check and used the proceeds for his own benefit, as he had informed Patel he would do. He used the money to meet certain operating expenses and personal expenses, being in severe financial straits at the time. Pate1 knew he was experiencing financial difficulties and had lent him the previously mentioned $4,000 to help him with operating expenses and personal expenses during the pendency of the closing of their various other real estate ventures. The Respondent informed Patel he would use the subject $2,000 for similar purposes, however, the record does not clearly reflect that Patel consented to this, as opposed to his intent that the money be placed in an account as his deposit of consideration for the contract. His testimony to this latter effect is borne out by the fact that in spite of the Respondent's request that the check be made out to him personally, instead Patel made it out to the "Ausley Properties Escrow Account." That account did not exist but the method of drafting the check reveals his intent that the money was to be used as a deposit. In any event the Respondent made no misrepresentation to Mr. Patel as to what he intended to do with the money, but at the same time he did not deposit it in an appropriate account to be held as a deposit toward the purchase of the property involved in the sales contract. Patel made numerous demands for the money and each time Respondent acknowledged this and the other debt to Patel and promised to pay. He ultimately began paying back a small portion of the indebtedness to each of his creditors starting out at a rate of $10 per month. Ultimately, the Respondent paid the entire $2,000 predicated on receipt of his 1985 income tax return.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a final order be entered by the Petitioner finding that the Respondent has violated Section 475.25(1)(b),(d,)(e) and (k) only to the extent delineated in the above conclusions of law and that his real estate broker's license be subjected to a six months suspension. DONE and ORDERED this 1st day of August, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1986. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Steven R. Hall 8880 Old Kings Hwy., Apt. 30-W Jacksonville, Florida 32217 Michael Sheahan, Esquire Two South Orange Avenue Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Rea1 Estate Commission 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32802 APPENDIX Petitioner's Proposed Findings of Fact: Accepted Accepted Accepted Accepted Accepted Accepted Rejected, although the evidence establishes that Patel intended the funds to be escrowed. Accepted Accepted Accepted Accepted Accepted Accepted Accepted Rejected as not comporting with the charges in the Administrative Complaint. Respondent's Proposed Findings of Fact:* Accepted Accepted Accepted Accepted Accepted, but irrelevant to the charges. Accepted Accepted Accepted as to the first sentence only. The second sentence concerning Patel's response is not clearly supported by record evidence. Accepted Accepted Accepted * Although Respondent is proposed findings are accepted, some are inculpatory, some are not material and some support the conclusion that no fraudulent conduct was committed.
Findings Of Fact Petitioner, Marcus J. Brown f11ed an application for the issuance of a Class "C" license on Apr11 8, 1982 with Respondent, Department of State, Division of Licensing. That license authorizes a licensee to Perform private investigative work. After reviewing the application, Respondent denied the same on June 26, 1982 on the ground Petitioner did not possess the requisite experience required by Subsection 493.306(4), Florida Statutes, The denial Precipitated the instant proceeding. Petitioner is a licensed real estate salesman, He supports himself through his activities as a real estate salesman and "Personal business activities." Between 1979 and Apr11, 1982, Petitioner performed investigative work on three cases involving real estate transactions. The work wad performed on a Part-time basis on behalf of two attorneys and a real estate broker in the Miami area. One of the cases is st11l pending. The work involved, inter alia, interviewing witnesses, researching corporate records, and securing documents for use at trial. Petitioner had a personal interest in the outcome of all three cases, and at least one involved an effort by him to secure an unpaid real estate commission due him. He has received no compensation for his services as an investigator to date. Petitioner has no college course work related to private investigation nor has he worked as a licensed intern.
Recommendation Based on the foregoing findings of fact and conclusions of law, it RECOMMENDED that the application of Marcus J., Brown for licensure as a private investigator be DENIED. DONE and ENTERED this 6th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 6th day of December,1982.
Findings Of Fact Respondent Donald E. Swagler is now and was at all times material a licensed real estate broker or broker/salesman in the State of Florida, having been issued license number 0139756, in accordance with Chapter 475, Florida Statutes. At all times alleged in the Administrative Complaint, respondent Donald Swagler was licensed and operating as a qualifying broker for and an officer of respondent Swagler Realty, Inc., which is now and was at all times material a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0169035, in accordance with Chapter 475, Florida Statutes. At all times material, Fern Z. Taylor was a licensed real estate broker with an office in Bonita Springs, approximately a twenty-minute drive south from the offices of Swagler Realty Company in Ft. Myers. On April 10, 1980, Andrew W. Kuchmaner was working part-time as a licensed real estate salesman in the employ (as that term is defined in Section 475.01(2), Florida Statutes) of Swagler Realty Company. Kuchmaner was a new salesman and had not yet had occasion to present a buyer's purchase offer to a client seller. During the early months of 1980, Kuchmaner was also working in the employ of, and receiving a salary from, Jim Walter Homes Company. Philip R. and Susan B. Workman first met Kuchmaner in January or February 1980 while visiting a Jim Walter's Homes sales office in Ft. Myers where he was working in his capacity as a Jim Walter Homes salesman. Kuchmaner advised the Workmans to find and purchase a lot for the Jim Walter home they had selected, and then they could purchase the Jim Walter home. Jim Walter Homes Company requires lot ownership prior to building one of their homes. Prior to selecting a lot, the Workmans had already decided on the Jim Walter home they were going to purchase, and Kuchmaner was going to do the paperwork for Jim Walter. Throughout the first quarter of 1980, the Workmans searched for a lot on which to construct their home in the Bonita Springs area of southern Lee County. During their search, the Workmans came upon a vacant lot with a sign saying it was for sale by Fern Z. Taylor. Upon seeing her real estate for sale sign, the Workmans went to Fern Taylor's office to inquire about the property and seek her assistance in their purchase of a lot in the Bonita Springs area. Fern Taylor advised the Workmans that, in addition to the lot they had already seen bearing her sign, she had Dust that morning listed and had for sale another lot in the Bonita Springs area which they would be interested in seeing. Earlier that same morning, Taylor took a long distance telephone call from a Charles A. Bennett, a resident of Arizona. Bennett said he had a lot he wanted to sell and gave Taylor the price ($7,000) and a description--Lot 20, Block E, Rosemary Park No. 2, in Bonita Springs. Bennett had not seen the property in some time and gave no landmarks or street address for Taylor's guidance. Back in 1925, Rosemary Park No. 2 was subdivided into eight blocks of 24 140' x 50' lots each and two larger blocks containing 16 larger 162' x 300' lots each. One of the smaller lots bore the legal description: "Lot 20, Block E of Rosemary Park No. 2 according to the Plat thereof recorded in Plat Book 6 at Page 30, of the Public Records of Lee County. This is the lot Bennett owned and was trying to sell. It is located on First Street. In 1926, Rosemary Park No. 2 was re-subdivided. The two larger blocks of the prior subdivision were re-subdivided into eight blocks of 24 140' x 50' lots each. Unfortunately, in a stroke of singular lack of vision, the new blocks and lots were designated with the same letters and numbers already assigned to the smaller blocks and lots in the original 1925 subdivision. As a result, there is another lot in Rosemary Park No. 2 designated as Lot 20, Block E: Lot 20, Block E, Rosemary Park, resubdivision of the East 1/2 of No. 2, according to the plat thereof, as recorded in Plat Book 8, Page 32, in the Public Records of Lee County, Florida. This other Lot 20, Block E, is owned by the Fyfes of Maine and is on Fifth Street. Taylor, who was quite busy, quickly checked a plat book in her office to locate the lot and the tax rolls to attempt far to verify Bennett's ownership and left to put her sign on the lot she thought Bennett owned and was trying to sell. Through a combination of the confusing legal description, the incomplete description and paucity of information Bennett gave Taylor, and Taylor's admitted negligence, Taylor put her for sale sign on the Fyfes' lot on Fifth Street instead of on Bennett's lot on First Street. Taylor had no listing agreement with the Fyfes, and the Fyfes' property was not for sale. Fern Taylor drew a map for the Workmans providing them with directions to this purportedly newly listed lot on which she had placed her "For Sale" sign. In reliance on Fern Taylor's map and representations as to her listing agreement, the Workmans drove to the Fifth Street lot and viewed the property as well as Fern Taylor's "For Sale" sign. Approximately one week after seeing the Fifth Street lot, the Workmans summoned Andrew Kuchmaner to Bonita Springs to view the lot and give them his opinion as to how the Jim Walter home they had previously selected would sit on the lot. The Workmans had their minds pretty well made up that they wanted to purchase the Fifth Street lot before summoning Kuchmaner. Kuchmaner never took the Workmans to any property but, upon their request, traveled to Bonita Springs to meet them and was thereupon shown the Fifth Street lot. While viewing the Fifth Street lot, Kuchmaner advised the Workmans that the Jim Walter's home they had selected would sit nicely on that lot. He also told the Workmans for the first time that he had a real estate license and would be glad to help them out with placing an offer for the lot on their behalf. The Workmans used Kuchmaner to make their $6,000 offer on the lot to save time because it was late in the afternoon and they lived in North Ft. Myers. When Fern Taylor first met Kuchmaner, he had been represented to her by the Workmans as a Jim Walter salesman. Kuchmaner went to Taylor's office and requested she prepare the contract because he would have to go all the way back to Ft. Myers to write it up. Taylor provided Kuchmaner with the legal description "Lot 20, Block E, Rosemary Park #2" and advised him he would have to write his own contract. Kuchmaner also proposed to Taylor that they not tell Swagler or Swagler Realty about the sale so they could divide Swagler's quarter of the 10 percent commission ($150 of the total $600 commission). Taylor refused and told Swagler what had happened. Swagler had an angry confrontation with Kuchmaner and was about to fire him, but Kuchmaner begged for a second chance and promised not to try to cut Swagler out of a commission again. Swagler relented and kept Kuchmaner on as a salesman. Kuchmaner filled out a contract on a Swagler Realty form and brought it to Donald Swagler for his review. He advised Swagler that he had gotten the legal description from Fern Taylor and had been to see the property. Swagler generally does not sell property in the Bonita Springs area and is not familiar with the area. He relied on Taylor to provide an accurate legal description of the property being sold. Kuchmaner hand delivered the contract offering to purchase the Bennett parcel to Taylor. Taylor checked the contract before she sent it to Bennett to see that the legal was the same that she had, and it was. She also checked it again when it was sent back from Bennett. Fern Taylor had received and checked the contract, title insurance binder, seller's closing statement and a copy of the warranty deed from Bennett to Workman prior to the closing The Workmans had the property they thought they were purchasing surveyed by William R. Allen, a registered and licensed land surveyor. He received the request to survey the property from Susan Workman. Over the phone, she advised Mr. Allen she had purchased a lot in Rosemary Park, Specifically lot far 20, block E. Mr. Allen informed Mrs. Workman that there are two Block E's in Rosemary Park and that they should be careful. He inquired as to which street she had purchased property on and was told, "We're on Fifth Street." Allen surveyed the Fifth Street lot and certified his survery, using the actual legal description of the Fifth Street (Fyfes') lot. Allen never saw any document with the legal description of the Bennett lot. Fern Taylor did not know that the Workmans had ordered a survey and did not see a copy of the survey until well after the closing. Although she attended the closing, she saw no discrepancies among the documents cursorily reviewed at the closing. Neither did the Workmans or the closing agent. The evidence was not clear whether there was a copy of the survey among the documents at the closing. The lender (Jim Walter Homes) and the title insurance company got a copy of the survey before closing. Neither of their professionals noticed that the legal description on the survey (the Fyfe lot) did not match the legal description on the deed and other documents (the Bennett lot). When a real estate broker has placed his sign ("For Sale") on a parcel of property, it is a reasonable conclusion that he is authorized to sell that parcel. It is customary for a broker to rely on the listing broker to provide a correct legal description for the property they have listed. At no time before the closing did Swagler or Kuchmaner have reason to suspect that the Workmans were purchasing a parcel of property different from the parcel they believed they were purchasing. Neither Swagler nor Kuchmaner were at the closing of the Workmans' purchase. But their presence would not have made any difference. It is not the real estate broker's or salesman's lob to scrutinize the documents being signed to make sure the legal descriptions on all the documents match (unless he has reason to believe the legal descriptions might be wrong.) He has the right to rely on the other professionals--the listing broker (especially since Fern Taylor was familiar with the Bonita Springs area and Swagler was not), the lender's attorney, the title company, the closing agent and, if any, the surveyor and the buyer's attorney. Fern Taylor and perhaps others were culpably negligent. Swagler and Kuchmaner were not. What happened to the Workmans is not their fault.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against respondents, Donald E. Swagler and Swagler Realty Company, in this case. RECOMMENDED this 9th day of February, 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3502 These rulings on proposed findings of fact are made in compliance with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5. Rejected as contrary to facts found. (Kuchmaner did not "solicit" or "obtain" them.) 6.-14. Accepted and incorporated. 15. Rejected as contrary to facts found. (Taylor's "investigation" or "attempt" to ascertain the legal description was deficiently and negligently performed.) 16.-17. Accepted and incorporated. First sentence, rejected as incomplete ("compare the deed" with what?); second sentence, rejected because it was not proved Taylor had access to a copy of the survey before the closing. Rejected as unnecessary and potentially misleading. (A Final Judgment was entered; Taylor paid the portion against her; the other defendants have not paid the portions against them.) Rejected. Swagler Realty Company was a defendant in the case; Donald E. Swagler was not. 21.-24. Accepted and incorporated. Rejected as not proved whether they "failed," "refused" or "neglected." (The fact is that neither has paid the Workmans any money in satisfaction of the portion of the Final Judgment against Swagler Realty Company.) Accepted but unnecessary. B. Respondents' Proposed Findings Of Fact. 1. Accepted but unnecessary. 2.-10. Accepted and incorporated. 11. Accepted but unnecessary. 12.-23. Accepted and incorporated. 24.-28. Accepted and incorporated. 29. Accepted but unnecessary. 30.-36. Accepted but cumulative. 37.-42. Accepted and incorporated, along with additional findings. 43. Accepted but unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Fl 32802 J. Michael Hussey, Esquire 3443 Hancock Bridge Parkway Suite 501 North Ft. Myers, Fl 33903 Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Harold Huff Executive Director Division of Real Estate Post Office Box 1900 Orlando, Fl 32802
Findings Of Fact At all times material hereto, Respondent, Ralph B. Snyder, Jr. ("Respondent"), was a licensed real estate broker having been issued license No. 0082998. Respondent was the qualifying broker for Home Hunters V, Inc., a corporate real estate broker having been issued license No. 0221795, with a principal business address of 2829 Okeechobee Boulevard, West Palm Beach, Florida. In September, 1981, Respondent registered Home Hunters V, Inc., as a real estate brokerage corporation, with himself as qualifying broker. The office remained open until April, 1982. Respondent was not present in the West Palm Beach office of Home Hunters V on a full-time basis because, in addition to that business, he was involved in a construction business on Sanibel Island, Florida. In late September or early October, 1981, Respondent hired Greg Howle to manage the Home Hunters V office in West Palm Beach. At all times material hereto, Howle was not registered as either a broker or salesman. Respondent's business, insofar as here pertinent, consisted of maintaining card files of rental properties available in the West Palm Beach area, and advertising availability of those properties for the owners. When a prospective tenant came to Respondent's office in response to advertisements or otherwise, those tenants would sign an agreement with Home Hunters V, Inc., and, after payment of a $60 fee, would be furnished information concerning available properties in the area that generally conformed to the types of properties prospective tenants were seeking. The standard procedure in Respondent's office was that the prospective tenants would first meet with Greg Howle, the office manager, who would have them execute the agreement with Home Hunters V, Inc., collect the $60 fee from them, and then refer prospective tenants to other office employees. Among these other office employees were Ilana Frank, a licensed real estate salesperson who began employment with Respondent in late September or early October, 1981, and Sheryl Kimball, an unlicensed employee, who was employed by Respondent on or about October 16, 1981, and continued as an employee until about November 29, 1981. Respondent testified that Ms. Kimball was hired as a receptionist and, in addition, performed general clerical responsibilities in the office, including greeting potential customers and referring them to licensed salespersons. The record in this cause establishes that Ms. Kimball did, on at least two occasions, speak with persons on the telephone concerning sales, and on both of those occasions she was reprimanded by Respondent for acting outside the scope of her employment. Ms. Kimball was never directed by Respondent to negotiate the rental of any real property nor does this record establish that Respondent knew of Ms. Kimball's engaging in any such activity. Respondent testified that Ms. Kimball was paid $150 per week for her services, and, in addition, was compensated for any overtime work she might have performed. Ms. Kimball testified, however, that she was paid $150 per week together with $3.00 for each contract she negotiated. However, Ms. Kimball could identify only one such contract on which she worked. With regard to that contract, which involved a customer named Paul Palmero, Respondent never received any funds, and the record in this cause does not reflect that any services were ever performed for Mr. Palmero. Further, the entire Palmero transaction was conducted in the presence of another of Respondent's employees, Ilana Frank, who, as indicated above, was a licensed salesperson. Accordingly, there is insufficient credible evidence of record in this cause to establish that Sheryl Kimball ever negotiated the rental of real property or interest therein; procured lessees of the real property of others; or performed any of the acts of a broker or salesman as alleged in the Administrative Complaint. Further, the record in this cause contains no evidence establishing the amounts actually paid to Ms. Kimball during the six-week period in which she was employed by Respondent. In reaching this conclusion, the Hearing Officer has taken into account the testimony and interests of both Ms. Kimball and Respondent in the outcome of this proceeding in attempting to reconcile the direct conflicts in their testimony. Ms. Kimball was discharged from Respondent's employ after having received two reprimands and having been accused of misappropriating funds. Thereafter, Ms. Kimball filed a complaint against Respondent with the Florida Real Estate Commission. Conversely, Respondent obviously has an interest in retaining his license as a broker. When viewed as a whole, it is concluded that facts of record in this cause with respect to Counts I and II are qualitatively and quantitatively insufficient to establish the factual allegations contained therein. Count III of the Administrative Complaint alleges that Respondent ". . . inserted or caused to be inserted fraudulent, false, deceptive or misleading advertisements in the Post and Evening Times newspaper of West Palm Beach, Florida." The same count further alleges that those advertisements were fraudulent, false, deceptive or misleading ". . . in that the content thereof stated to the public that respondents had available for lease through their firm various rental units at stated prices when in fact rental units of the advertised type were not available through their firm at the stated price." There is no evidence of record in this proceeding that would in any way establish the facts alleged in Count III of the Administrative Complaint. In fact, the only evidence of record on this issue is the testimony of Ms. Kimball that she observed Mr. Howle, the office manager, copying listings from Fort Myers newspapers for use in the West Palm Beach area. However, Ms. Kimball conceded that she did not know if any such ads were ever placed in the West Palm Beach newspaper. No such advertisements were introduced into evidence in this proceeding from which any comparison to any of the listings available through Respondents could be made to determine whether the ads were fraudulent, false, deceptive, or misleading. County IV of the Administrative Complaint charges the Respondent with having solicited and accepted money as advance rental fees with knowledge that rental units of the type and price desired by potential tenants were not available through Respondent's firm, and with making false representations as to the availability of rental units. Again, there is no evidence of record in this cause to establish a single, identifiable instance in which Respondent either individually or through its employees represented that rental units were available of a type and price that were not in fact so available.
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
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.
