Findings Of Fact At all times pertinent hereto, Respondent, George R. Gurley, was a registered real estate broker-salesman in the State of Florida operating under License No. 0034797 issued by the Florida Real Estate Commission on April 1, 1979. Mr. Gurley arranged the sale of certain property on Highway 542 in Lakeland, Florida, owned by Lakeland Skyview, Inc., Durward Harrell and Charles J. Ziemba to Joseph D. De Silvestro. This sale was initially arranged in a contract executed on April 5, 1979, by Mr. De Silvestro, as buyer, and Charles J. Ziemba, individually, and Hobart H. Joost, President of Lakeland Skyview, Inc., for the seller. Sale price was to be $70,000 with a $1,000 deposit being held in escrow by R/D Parker Realty Company. A commission of 10 percent ($7,000) was called for in that portion of the contract providing for method of payment, but was not referenced in the brokerage fee portion of the contract at the bottom of the first page thereof. Respondent, Gurley, and two others were listed as witnesses. Thereafter, before this contract was closed, on May 4, 1979, Respondent arranged a resale of the property from Mr. De Silvestro to American Vault Bed Corporation with a purchase price of $90,000 of which, again, $1,000 was to be held in escrow by the R/D Parker Realty Company. This contract made no provision for any real estate commission. This second contract was witnessed as to both buyer and seller by Respondent. The property in question was originally listed with R/D Parker Realty Company on November 10, 1978, by Mr. Joost, President of Lakeland Skyview, Inc., on an exclusive right of sale contract form which was accepted by Mr. Gurley, the Respondent. Because Mr. Joost had worked with Respondent previously and was aware of his reputation, he listed the property with Respondent in preference to another real estate agent. According to Ms. Parker, who ran the real estate company, though the form indicates the listing was an exclusive, it was, in fact, not entered into the multiple listing service. Mr. De Silvestro, the individual who purchased the property in the first transaction, was himself a real estate broker-salesman who was at the time working as office manager for R/D Parker Realty Company. At the time of both transactions, it was the policy of Parker Realty that salesmen working for the company could make two transactions per year in their own names without paying any commission to Parker Realty so lone as Ms. Parker was made aware of it in advance. In the instant case, Parker Realty did not get a share of the commission, nor did Ms. Parker know about either sale at the time. She found out about them in June, 1982, after both Respondent and Mr. De Silvestro had left their association with her firm, in the summer of 1979. Both transactions were closed by mail by Stewart Title Company off Polk County during the period from late May to mid-June, 1979. The buyer's closing statement dated May 29, 1979, for the first sale to Mr. De Silvestro does not reflect a broker's commission. However, a check in the amount of $2,829.51, drawn by Stewart Title of Polk County, Inc., on its escrow account, made payable to Charles J. Ziemba and S. A. Rice, dated June 28, 1979, bears the notation "payment in full for note from George R. Gurley dated June 8, 1978, with interest in full." Both Mr. Gurley and Mr. Ziemba acknowledge that this check was a portion of the $3,500 Mr. Gurley received as commission on the sale to Mr. De Silvestro and which was paid to Mr. Ziemba in fulfillment of a prior existing debt to him. The following day, June 29, 1979, an additional check was drawn on the escrow account of Stewart Title of Polk County, Inc., payable to Randy Gurley in the amount of $670.49, which bears the notation, inter alia, "for balance of realtor's commission." Randy Curley is, in fact, Respondent. Mr. Gurley acknowledged that this figure, which, when added to the amount of the prior mentioned check totals $3,500, was his share of the real estate commission earned on the property in question to Mr. De Silvestro. The balance of the real estate commission of $7,000, in the amount of $3,500, was never paid either to Mr. Gurley or to Parker Realty. No evidence was presented to indicate where that $3,500 went, if, in fact, it was paid at all. Testimony in this area came from Karen Beck, an agent with Stewart Title, who was not, however, the closing agent for this transaction. Her testimony, based on what the actual closing agent told her, and therefore hearsay, leads her to conclude that the "parties," De Silvestro and Gurley, had indicated the commission was to be handled as it was. On June 12, 1979, Stewart Title received a check for $2,000 from R/D Parker Realty Company, which represented the $2,000 paid as deposits into Parker Realty Company's escrow account on the two sales in question. The check for $2,000 was signed by Ms. Parker's son, Richard, who was a partner in R/D Parker Realty and who had authority to execute the check in question. Mr. Parker was not present at the hearing, nor did he testify as to whether he had given Mr. Gurley authority to keep his half of the commission and not forward any of the commission to Parker Realty, the broker. Mr. Gurley at no time was an owner of the property in question, nor did he realize any profit from either sale. His sole compensation came from the commission he received from the sale of the property initially to Mr. De Silvestro. This does not fall within the permitted transactions referred to by Ms. Parker, whereby employees could make two purchases per year without paying commission. Respondent, Gurley, who has held a salesman's license since 1972 and been a broker since 1974, contends he has never, in all those years, done anything in the practice of the real estate profession which would warrant disciplinary action by the Real Estate Commission. He contends that both he and Mr. De Silvestro acted with the knowledge of the broker, R/D Parker Realty; they used office forms; used office witnesses; and the deposit monies placed on both contracts went into the office escrow account. Mr. Gurley contends that the entire transaction was open and aboveboard and that when he acted, he felt he was authorized to do this. Though he contends Ms. Parker's son, Richard, acknowledged that what Gurley was doing was appropriate, Ms. Parker indicates her son denied any knowledge of what Respondent and De Silvestro were doing. On balance, it is found that neither Gurley nor De Silvestro notified Parker Realty, in the form of Ms. Parker or Richard Parker, as to the details of the transaction. Respondent is a minister, has no criminal record, no bad debts and no difficulties with the law of any kind. He applied for a renewal of his license In April, 1982, but has had no notice of denial. The records of the State of Florida submitted pertaining to Respondent's licensure status, however, reflect his licensee as a broker was issued on January 21, 1983, and is effective until September 30, 1984. That would make his license current at the present time.
Recommendation In light of the foregoing, it is, therefore, RECOMMENDED: That Respondent be reprimanded. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of January, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. George R. Gurley 800 East State Road 540A, #106 Lakeland, Florida 33803 Mr. Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact The real estate transaction which is the subject of this proceeding arose out of a contract for sale and purchase of property in Orange County, Florida, dated April 22, 1981. Pursuant thereto, the purchasers placed a $200 deposit against the sale price with the Respondent, J.B. Steelman, Inc. The closing was set for June 23, 1981. An addendum to the contract extended this closing date to July 29, 1981. On July 1, 1981, the seller's attorney notified the Respondent that the seller declined to close-the subject sale, and authorized the release of the $200 deposit to the purchasers. Any releases which might be required were requested to be delivered to the seller's attorney. Subsequently, the attorneys for the seller and for the Respondent discussed the matter of the seller's obligation to pay a real estate commission, and the seller's attorney sent to the Respondent a three-party release agreement between the buyers, the seller, and the Respondents. The forwarding letter from the seller's attorney added that when all parties had signed this release, the Respondent would be authorized to disburse the $200 earnest money deposit to the purchasers. The seller also agreed to pay the purchasers an additional $500 in settlement for any claim they might have for failure of the seller to close. The release agreement further required the Respondent to relinquish any claim for a real estate commission. The Respondent, through counsel, advised the seller's attorney that the $200 deposit would be released to the purchasers in-accordance with any agreement that might be satisfactory to the seller and the purchasers, but that the Respondent would not release any claim to a commission without compensation. The Respondent added that when the seller had signed the release agreement the deposit would be paid to the purchasers. Counsel for the Respondent ultimately got the purchasers to execute the release agreement and sent it to the seller's attorney requesting that the seller either sign this release or advise that there was no objection to a disbursement of the $200 deposit to the purchasers. No response was forthcoming from the seller or from counsel for the seller. Finally, on September 11, 1981, the Respondent's lawyer wrote to the seller's lawyer, advising that the Respondent would not relinquish any right to a real estate commission, but that the Respondent would release the $200 deposit to the purchasers. On or about September 15, 1981, the $200 deposit was paid to the purchasers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against the Respondents, Johnny B. Steelman, Jr., and J. B. Steelman, Inc., be dismissed. THIS RECOMMENDED ORDER entered on this 26th day of May, 1982. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1982 COPIES FURNISHED: James H. Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Eric A. Lanigan, Esquire 1214 East Robinson Street Orlando, Florida 32801 Frederick H. Wilsen, Esquire 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact By Joint Prehearing Stipulation filed in this cause on March 7, 1980, counsel for Petitioner and Respondent stipulated, among other things, that: Petitioner seeks relief from an Order of the Board of Real Estate dated 16th day of October, 1979, denying the granting of a real estate salesman's license to the Applicant- Petitioner pursuant to 475.17 Florida Statutes [sic]. Respondent seeks to uphold said Order pursuant to Section 475.17 Florida Statutes. Petitioner seeks to show rehabilitation and qualification because of lapse of time and subsequent good conduct and reputation and that the interest of the public and investors will not [sic] likely be endangered by the granting of registration. Respondent seeks to show that change has not taken place and that the Petitioner is not qualified. (e) The Counsel for the parties hereto stipulate that Constance B. Mastellone a/k/a Connie B. Martin was a registrant of the Florida Real Estate Commission and that said registration was revoked and that she subsequently appealed to the Board of Real Estate for registration and that said registration was denied in the Order dated the 16th day of October, 1979. In addition, counsel for the respective parties stipulated into the record in this proceeding a certified copy of a Final Judgment dated January 4, 1977 in Case No. 74-36190, in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, wherein Diane Zeppo was the Plaintiff and Petitioner, who was at that time a registered Florida real estate broker, was the defendant. In entering a judgment against Petitioner in the amount of $4,000 for compensatory damages and $6,000 for punitive damages, the Circuit Court found that Petitioner, in her capacity as a real estate broker: . . .represented to the plaintiff that she would get the highest and best price that she could for [plaintiff's] property and to expedite such a sale, the plaintiff executed a deed to said property with a blank grantee, and delivered it to the defendant for the sole purpose of implementing and expediting a subsequent sale to be agreed upon, that instead of attempting to obtain the highest and best price for the plaintiff, the defendant, in derogation of her duties and responsibilities as a Real Estate Broker, intentionally deceived the plaintiff into believing that the highest price available was $26,500.00 when in fact the defendant had contracted for a sale of said property for a sale price of $33,000.00, that the defendant in breach of the trust and confidence reposed in her by the plaintiff and in breach of the trust agreement whereby the blank grantee deed, Plaintiff's Exhibit 17, was delivered to her in trust, did voluntarily insert therein her own name and used said deed in an attempt to transfer the title to said property from her client, the plaintiff, to herself, the broker, and in conjunction with so doing, the defendant did cause the plaintiff's tenants to vacate the property and did thereby interrupt the rental income which the plaintiff was receiving from said property in the amount of $275.00 per month, which was last received by her for the month of April, 1974; that the plaintiff has received no rental income from said property from said date to the present, caused solely and only by reason of the fraudulent, willful, and intentionally wrongful actions of the defendant-broker, CONSTANCE B. MASTELLONE, that the deed wherein DIANE ZEPPO is the named grantor, CONNIE B. MARTIN is the named, wrongfully inserted grantee dated the 2nd Day of April, 1974, whereby the above described property was purportedly transferred as recorded in Official Records Book 5756 Page 1504 is void and of no effect, and the plaintiff was entitled to continue to receive said rental income and would so have received said rental income, but for the wrongful actions of the defendant. . . It appears from the record in this proceeding that Petitioner was initially licensed as a real estate salesperson in the State of Florida in 1969 or 1970. At some time thereafter, which date does not appear in this record, she was apparently registered as a real estate broker. Subsequently, in December, 1978, Petitioner received a notice from the Florida Real Estate Commission that her real estate broker's license had been revoked. Revocation proceedings before the Florida Real Estate Commission had apparently been ongoing since 1974. No part of the record before the Florida Real Estate Commission leading to the revocation of Petitioner's real estate broker's license was made a part of the record in the instant proceeding. In fact, it is impossible to tell from the record in this case either the factual or legal basis for the Florida Real Estate Commission's revocation of Petitioner's real estate broker's license. Despite the recitations contained in the Final Judgment against Petitioner in Zeppo v. Mastellone, a portion of which is quoted above, no factual testimony was elicited in this proceeding that in any way connected the facts at issue in that case with the revocation of Petitioner's real estate broker's license. Each of the witnesses called by Petitioner uniformly testified as to their high estimate of her reputation for honesty and trustworthiness and to her knowledge of the real estate profession. However, none of these witnesses, whose acquaintance with Petitioner varied from periods of one to ten years, indicated that they had any knowledge of the fact's leading to the revocation of Petitioner's real estate broker's license, or to the facts giving rise to entry of the final judgment in Zeppo v. Mastellone. Additionally, these witnesses' acquaintanceships with Petitioner relate primarily to that period of time predating the revocation of her real estate broker's licenses, and those few witnesses having any contact with her subsequent to the revocation of her license indicated that that contact was either minimal, or was in the context of social rather than business matters. In her own direct testimony, Petitioner did not address herself to the facts giving rise to the revocation of her broker's license, nor did she attempt to explain the factual situation involved in Zeppo v. Mastellone. Although Petitioner indicated that she felt that she had rehabilitated herself sufficiently to be licensed as a real estate salesperson, she gave no testimony as to any affirmative steps taken by her since the revocation of her license as evidence of that rehabilitation.
The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 1982, 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 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether respondent violated sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, by the manner in which she handled the real estate transaction involving the property located at 29 S. Lawsona.
Findings Of Fact Respondent is a licensed real estate salesman and was a licensed real estate salesman at all times relevant to the instant charges. In September 1983, respondent was registered as a real estate salesman with 100 percent Real Estate Incorporated. Robert Sinclair was the qualifying broker for 100 percent Real Estate Incorporated. On or about September 29, 1983, respondent obtained an Offer of Purchase on a home located at 29 S. Lawsona from Linda O'Leary and James T. Bagley along with a check from James T. Bagley in the amount of $500 as earnest money. The resulting contract was entered into evidence as Petitioner's Exhibit 1. On the day the purchasers signed the contract, but after they had signed the contract, the purchasers visited the home and discovered that there appeared to be extensive termite damage. Mr. Bagley was concerned about the termite damage, as was the respondent, and therefore the respondent promised Mr. Bagley that she would hold his check until she could get the termite estimate from Mr. Babcock and check with the termite company to find out how bad the damage was. Although the respondent was able to obtain the termite estimate from Mr. Babcock's office the following day, she was unable to contact the person who had conducted the termite inspection. She also was unable to contact the purchasers. She was unable to contact Mr. Bagley for approximately a week and it was another week before Mr. Bagley went to the house with a contractor to determine how much it would cost to repair the termite damage. The contractor thought that the minimum cost would be $10,000. At that point Mr. Bagley decided that he was no longer interested in the house, and the respondent returned his check. The $500 check was never turned over to Robert Sinclair or 100 percent Realty. Respondent knew she should not have held the check and was aware that by doing so she was, as she stated, "in hot water." However, respondent also believed that the seller had misrepresented the extent of the termite damage and was misinterpreting the terms of the contract. Mr. Sinclair was unaware of the existence of the contract until the end of October, although he had a discussion earlier with the respondent regarding whether an "as is" clause in a contract could override the specific printed provision of the standard contract related to termite infestation. That discussion was obviously related to the contract on the house on Lawsona.
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 finding that the respondent is guilty of violating sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, and suspending respondent's license for a period of three (3) months. DONE and ENTERED this 1st day of May, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of May, 1985. COPIES FURNISHED: Harold Huff, Executive Director Department of Professional Regulation P. O. Box 1900 Orlando, Florida 32802 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Ms. Anne Rockafield 713 Woodward Orlando, Florida 32803 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent Philip Marzo was a real estate broker licensed under the laws of the State of Florida, holding license No. 0217167; and Respondent All Cities Realty, Inc., was a real estate brokerage corporation licensed under the laws of the State of Florida, holding license No. 0217166. At all times material hereto, Respondent Marzo was the qualifying broker for Respondent All Cities Realty, Inc. On May 9, 1981, Gladstone Keith Russell entered into a Service Agreement with All Cities Realty, Inc. Pursuant to the terms of that Agreement, Russell paid $75 in cash to Respondent All Cities Realty, Inc., as an advance rental information fee in exchange for which All Cities Realty, Inc., agreed to provide Russell with listings of available rentals. On or about May 13, 1981, Respondents provided to Russell one listing, which listing was not suitable to Russell. No other listing information was ever provided by Respondents to Russell. Russell obtained his own rental within thirty days from the date of the Service Agreement. This rental was not obtained pursuant to any information supplied to him by Respondents. Within thirty days of the date that All Cities Realty, Inc., contracted to perform real estate services for Russell, Russell telephoned Respondent All Cities Realty, Inc., to demand a return of his $75 deposit. The salesman who took Russell's advance fee was no longer employed at All Cities Realty, Inc., and Russell spoke with Respondent Marzo. Although Russell demanded a refund of his money, Respondent Marzo did not make a refund to Russell. When Russell spoke with Marzo on the telephone, Marzo, instead of returning Russell's money, used delaying tactics and attempts to keep from making the refund. Since his telephone calls proved unsuccessful, Russell returned to the All Cities Realty, Inc., office to obtain a refund from Marzo. Upon arriving at the office, Russell found that All Cities Realty, Inc., had gone out of business, and he was unable to locate Respondent Marzo. Russell has never received a refund of his $75 advance fee paid to the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Default be entered against Respondents, Philip Marzo and All Cities Realty, Inc., and that a final order be entered finding Respondents, Philip Marzo and All Cities Realty, Inc., guilty of the violations charged in the Administrative Complaints and revoking their real estate licenses. RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1982. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Philip Marzo 2920 Missionwood Avenue, West Miramar, Florida 33025 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued. DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, 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 2nd day of May, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 Michael E. Crane, Esquire 521 Landmark Building Naples, Florida 33940 =================================================================
Findings Of Fact The Respondent Karen Kay Colucci, whose license No. is 0062107,is a registered real estate salesman in the State of Florida. The Respondent is employed by Magnolia Homes, Inc., 300 Embassy Boulevard, Port Richey, Florida. The owner of the business is David Lukacher. On May 20, 1976, Harvey Thompson and his wife Mary Thompson looked at model homes built by Magnolia Homes, Inc. They were assisted by a registered real estate salesman for Magnolia Homes, Inc., Patrick D. DePianto. Mr. and Mrs. Thompson told the real estate salesman that they wanted to build a house but wanted to sell their own house first. Mr. and Mrs. Thompson found a lot and model home they desired and then proceeded to Mr. DePianto's office to make a deposit. The office in which the transaction took place is a large room in which several people worked for the builder including the Respondent Karen Kay Colucci who is the sales manager. Mr. DePianto's desk and work area was in rather close proximity to Mrs. Colucci's desk and work area. Mrs. Colucci was not involved in the assistance to the Thompsons in locating a lot and model home and was not directly involved with Mr. DePianto and Mr. and Mrs. Thompson at the time the transaction under consideration took place. At the time of making the deposit Mr. and Mrs. Thompson asked Mr. DePianto if they could get their deposit back if they did not sell their home. Mr. DePianto called over to Mrs. Colucci and asked if a refund could be made if the Thompsons could not sell their house and, satisfied with the answer, assured the purchasers that there would be no problem. A check was written out for five hundred ($500) dollars and handed to Mr. DePianto and a receipt was written out by Mr. DePianto and handed to the Thompsons. There was no representation on the receipt written by Mr. DePianto concerning the refundability of the deposit. The Thompsons did not request that the representation be included on the receipt. Mr. and Mrs. Thompson left the office feeling that there would be no problem obtaining a refund of the deposit if they could not sell their home , although they were confident that the sale of their home was imminent. Thereafter the expected sale of Mr. and Mrs. Thompson's home was not consummated and the Thompsons asked Mr. DePianto for a refund of the deposit. Mr. DePianto asked for the request to be in letter form and Mr. Thompson complied. Thereafter he was advised by Mr. DePianto that the builder, Mr. David Lukacher, would not return the deposit but would hold the $500 until they were able to buy one of their homes and credit that amount to the purchaser. Mr. Thompson requested Mr. DePianto to put the discussion in letter form which Mr. DePianto did. Mr. Thompson wrote Mr. Lukacher a letter and called him on the telephone requesting that the deposit be refunded but no refund was forthcoming. Approximately six months later Mr. DePianto sent Mr. and Mrs. Thompson a check for $250, half of the deposit, plus 7 months of interest at 6 per cent per annum. The remainder of the deposit has not been returned to Mr. and Mrs. Thompson and Mr. Lukacher retains the $250, having previously sent $250 of the $500 deposit to Mr. DePianto. Petitioner Florida Real Estate Commission contends: that the Respondent Karen Kay Colucci knowingly misrepresented to the Thompson's that there would be no problem obtaining a refund of the $500 deposit if the Thompson's could not sell their home; that such representation means the Respondent is guilty of misrepresentation, false promises, false pretences, culpable negligence, or breach of trust in a business transaction and that therefore her license should be suspended. Respondent contends that she was doing other work at the time the subject transaction took place and that she had no involvement with the transaction between Mr. DePianto and the Thompsons. Respondent further contends that in reply to the question posed to her by Mr. DePianto in the busy office that a refund could be made providing Mr. Lukacher, the builder, approved it. The hearing Officer further finds: There is no consistent testimony by the witnesses as to exactly what was said in reference to a refund at the time Mr. and Mrs. Thompson were seated at the desk of Mr. DePianto. There is no consistent testimony as to what exactly Mr. DePianto asked the Respondent or what her answer was. Mr. and Mrs. Thompson failed to request that the receipt reflect that the deposit was conditional and would be returned if the Thompson's could not sell their home. Mr. DePianto did not make the receipt a conditional receipt. Mr. David Lukacher, the builder, refused to refund the deposit to the Thompsons, kept $250 of it, and sent Mr. DePianto the salesman, $250. Mr. DePianto refunded his share of the deposit plus interest to the Thompsons.
Recommendation Dismiss the complaint. DONE and ORDERED this 23rd day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth A. Meer, Esquire Staff Counsel Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Karen Kay Colucci Magnolia Homes, Inc. 300 Embassy Boulevard Port Richey, Florida 33568
Findings Of Fact On January 23, 1984, the Secretary of the Department of professional Regulation (hereinafter "Department") signed an Administrative Complaint, count one of which alleges, in pertinent part: Respondents in their capacity as real estate brokers employed Doris H. Swanton as a real estate broker and office manager from approximately October 20, 1980 to April 18, 1982. On or about April 8, 1982 to the present, Doris H. Swanton has made numerous and repeated demands upon Respondents for the payment of a share of the compensation received by Respondent and earned by Doris H. Swanton while in the employ of the Respondents in the amount totalling approximately $7,815.52 involving a number of brokerage transactions. A copy of a list reflecting the transactions, dates and amounts owing is attached as Petitioner's Exhibit 1. Since April 8, 1982, Respondents have failed, refused and neglected to give a reasonable accounting or to pay Doris H. Swanton the $7,815.52 or any part thereof notwithstanding the demands for same made upon Respondents by Doris H. Swanton, the person entitled to said money. That by reason of the foregoing, Respondents are guilty of having failed to account and deliver a share of a real estate commission and other compensation to Doris H. Swanton in violation of Subsection 475.25(1)(d), Florida Statutes. The Administrative Complaint signed on January 23, 1984, does not contain an allegation that there has been a judicial determination that Respondents are not entitled to retain the property claimed by Doris H. Swanton. On February 22, 1984, the Respondents served an Answer and Written Defenses in which the Respondents, inter alia, admit the first of the paragraphs quoted in finding number 1, above, and deny the other three paragraphs quoted above. The Respondents' Answer and Written Defenses also sets forth a detailed itemization of Respondents' reasons for contending that Doris H. Swanton is not entitled to the full amount of a single one of the twelve commissions she claims are due her from the Respondents. ANALYSIS OF THE ISSUES The thesis of the Motion to Dismiss filed by Respondents is that a broker cannot be disciplined for failure to account for and deliver non-escrowed property until there has been a judicial determination that the broker is not entitled to retain the property in dispute. The case of Golub v. Department of Professional Regulation, F.R.E.C., 9 FLW 460 (Fla. 5th DCA, Feb. 23, 1984), appears to be exactly on point. There a majority of the court concluded: Once there is a judicial determination that a broker is not entitled to retain non-escrowed property then this statute [475.25(1)(d)] is authority to discipline the broker for a failure to account and deliver the property to any person, including a salesman, who is entitled to its prossession. Corollary to the quoted language from Golub is the conclusion that until there is a judicial determination that a broker is not entitled to retain non- escrowed property, the statute does not authorize discipline of a broker for failure toe account and deliver the property. In other words, when the property in dispute is non-escrowed property, a judicial determination that a broker is not entitled to retain the property is an indispensable prerequisite to the establishment of a violation of Section 475.25(1)(d), Florida Statutes, on the basis of a failure to account for or deliver such property. Accordingly, until a court determines that the Respondents in this case are not entitled to retain the property in dispute in this case, it cannot be established that Respondents have violated Section 475.25(1)(d), Florida Statutes. And inasmuch as the Administrative Complaint fails to allege that there has been any such judicial determination, the Administrative Complaint is fatally deficient.
Recommendation Based on the foregoing Findings of Fact, Analysis of the Issues, and Conclusions of Law, I recommend that the Florida Real Estate Commission issue a Final Order in this case dismissing the Administrative Complaint without prejudice to the refiling of an Administrative Complaint against these Respondents if and when a court determines that the Respondents are not entitled to the property claimed by Doris H. Swanton. DONE and ORDERED this 3rd day of July, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH 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: Robert W. Lee, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 G. Michael Keenan, Esquire Post Office Box 1900 Fort Lauderdale, Florida 33302 Mr. Harold R. Huff, Director Division of Real Estate Legal Section 400 West Robinson Street Orlando, Florida 32801
