Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Charles Astore, Jr. is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Charles Astore is a registered real estate salesman. Charles Astore was employed by International Land Services Chartered, Inc. He was paid by International Land Sales Chartered Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Charles Astore Jr. as a registered real estate salesman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISED: Manuel E. Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Charles J. Astore, Jr. 501 N.W. 93rd Terrace Pembroke Pines, Florida 33023 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION Plaintiff, CASE NO. 2952 DOAH CASE NO. 77-201 CHARLES J. ASTORE, JR., Defendant. /
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Thompson be suspended for a period of one year. DONE and ORDERED this 6th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Calvin Dawson Thompson Route 1, Box 1075 Oviedo, Florida 32765 =================================================================
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Cindy Realty of Hernando, Inc., and William Colello as real estate brokers. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen C. Booth, Esquire 1604 U.S. Highway 19, North New Port Richey, Florida 33552
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact The Defendants, Barry Shelomith and Isaac Shelomith, son and father, respectively, were, during times material to the allegations filed herein, registered with the Commission as real estate salesmen with Alan Leavitt, a registered real estate broker, who maintains offices at 1110 N.E. 163rd Street, Suite 345, Miami Beach, Florida 33162. Defendant Barry Shelomith sometimes identifies himself as a "Mr. Barry", also being publicly known by such pseudonym, and Defendant Isaac Shelomith sometimes identifies himself as "I.B. Shelly" and is also publicly known by that pseudonym. During the period between March 15, 1975 and November 15, 1975, the Defendants, Barry Shelomith and Isaac Shelomith, jointly and/or severally and for their own accounts or for the accounts of others, negotiated the sale of a number of platted, unimproved lots located in a subdivision near DeFuniak Springs in Walton County, Florida and identified as Country Club Heights, Northeast, in Plat book 3, Page 21, Walton County, Florida. In negotiating for the sale of the lots, the Defendants placed various ads in Florida newspapers as an inducement for sale. Typical of such ads is the following: OWNER SACRIFICE Seven Mobile and Camping lots on Spring Lake. Boating, fishing, swimming. Electricity, water available. Only $375 each lot. Cash only. Call Owner, 931-1809 after 6 PM for appointment. (See Commission's Exhibit #6). Donald Vesey and his wife Jeanette Vesey purchased two lots from the Defendants based on an inducement prompted by a newspaper ad cause to be published by the Defendants. Mr. Vesey testified that Isaac Shelomith advised him that the lots were easily accessible; that owners could drive to their lots and that the lots were platted and that electricity and water was available. The Veseys were given warranty deeds for the lots during early April, 1975, and thereafter they attempted to see the lots during a visit to Defuniak Springs. The Veseys stated that they were unable to see the lots because they are "completely surrounded by privately owned property and there is absolutely no access to this property". However, the adjoining land owner, a Mr. Strickland, showed them approximately where their property was situated and was further able to show them that their property was "land-locked". Mr. Vesey testified that there were no access roads to the property and that the surrounding area is heavily wooded. (See Commission's Exhibits 3 & 4). Cynthia and Charles Derditsch, husband and wife, also purchased a lot from Defendant, Barry Shelomith, who advised that the property was accessible to the lake and Mr. Derditsch, based upon this representation, considered the property to be a good investment. Carl and Francis Milam also purchased property from the Defendants which was located in Walton County. Mrs. Milam testified that Isaac Shelomith told her the lot sizes were approximately 25 by 150 feet, however, she testified that she later learned that the property was smaller. Mrs. Milam's testimony in this regard is unspecific inasmuch as she could not either confirm or deny the lot sizes because she did not view the property and her husband had no recollection of the transaction involving the purchase of the property. George A. Torrence, also purchased a lot from the Defendants which he was unable to see because there was no easy access. He went to Spring Lake, the adjoining property, and the land owner, Mr. Strickland denied his access. To the best of his recollection, he testified that a Mr. Astor, who accompanied Defendant Barry Shelomith, made all the representations regarding the amenities of the property. Defendant Barry Shelomith told him that he represented Miami Sunshine, Inc., an active Florida Corporation to which he (Torrence) tendered the purchase price for the property. His testimony is that Barry Shelomith advised that his uncle, Ben Mione, was President of Miami Sunshine, Inc. (See Commission's Exhibit #12). Mr. Torrence also recalled that the property was represented to be 50 by 100 feet whereas in actuality it only measured 25 by 100 feet. Barry Shelomith testified that there were two means of access to the property in question. One mean was through the adjoining landowner's property and the other is through the use of a heavily wooded area off State Road #183. He testified that the plat map which was provided to all prospective purchasers was given them (the Defendants) by Budget Systems, Inc., the former owner and that the plat map was certified by a licensed surveyor. He denied any intent to defraud prospective purchasers by using the pseudonym "Mr. Shelly" instead of his last name which means "peace" in the Jewish community. He testified that by utilization of the word "Shalom" would possibly hinder his sales efforts outside the Jewish community. He denied any attempt to conceal his last name and admitted that he was not registered with the Commission as being employed by anyone other than his then registered broker, Alan Leavitt. He further admitted that the pseudonym "Shelly" was not registered with the Commission. While he admitted to directly selling the property of an owner while having his license registered with the Commission through broker Alan Leavitt, he saw no violation in this instance inasmuch as the property was owned by his uncle. He opined that this was permissible inasmuch as an owner was free to sell less than 49 parcels and secondly that the property owner in question here was a blood relative i.e., his uncle.
Recommendation Based on the foregoing findings and fact and conclusions of law, it is hereby, RECOMMENDED as follows: That the Defendant, Barry Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years. That the Defendant, Isaac Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years. That the complaint in all other respects be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1977. JAMES E. BRADWELL 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 30th day of March, 1977. COPIES FURNISHED: Richard Morgentaler, Esquire 1600 NE Miami Gardens Drive Greater Miami Beach, Florida 33179 Bruce I. Kamelhaire, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact The Defendant was at all material times registered with tie Florida Real Estate Commission as a real estate salesman in the employ of Razook Real Estate, Inc. Razook Real Estates Inc. is a duly registered real estate broker. During 1973, the Defendant negotiated the sale of a business known as Carvel Ice Cream Supermarket number 1034, located in Riviera Beach, Florida, between Philip Caruso and Dorothea Caruso, as sellers, and Beverly Barratt, as purchaser. The Carusos and Ms. Barratt entered into a Purchase and Sale Agreement on May 14, 1973. (See: Defendant's Composite Exhibit 1). The agreement included assignment from the sellers to the purchaser of a lease covering the property on which the business was located. The lease assignment was incidental to the sale of the business, and was not a prime factor in the transaction. The Defendant negotiated the sale as a business broker employed by Rabern Business Associates, Inc., and not as a real estate salesman employed by Razook Real Estate, Inc. The Defendant was not registered with the Florida Real Estate Commission as a real estate salesman for Rabern Business Associates, Inc. When she signed the contract on May 14, 1973, Ms. Barratt delivered to the Defendant a $4,060 check made out to Rabern Business' Associates, Inc. which amount was to serve as a deposit. The contract provided that the sale would be subject to the approval of Carvel Corporation the franchisor of the business. On August 15, 1973, the transaction between the Carusos and Ms. Barratt was closed, except that the approval of Carvel Corporation had not yet been received. It was the clear understanding of the parties that the approval of Carvel Corporation was essential and that the closing was conditional upon that approval. The sellers were represented at the closing by Attorney Walter Colbath. Ms. Barratt was represented at the closing by Attorney Gustave Broberg. Shortly after the closing, Ms. Barratt went to New York to participate in a training program offered by Carvel Corporation for franchisees. Carvel Corporation would not approve the transaction unless the new franchisee completed this program. Upon her arrival in New York, Ms. Barratt was advised by representatives of Carvel Corporation that the Carusos owed Carvel Corporation more than $8,000, which amount was not reflected in the agreement between the Carusos and Ms. Barratt nor in the closing statement dated August 15, 1973. This is the first occasion upon which Ms. Barratt was apprised of this indebtedness on the part of the Carusos to Carvel Corporation. Carvel Corporation reluctantly permitted Ms. Barratt to participate in their training program with the hope that a resolution of the indebtedness could be made. Carvel Corporation would not approve the agreement between the Carusos and Ms. Barratt unless an arrangement was made respecting the indebtedness. When Ms. Barratt returned to Florida, negotiations respecting the $8,000 commenced, and although at one juncture the parties were close to an agreement, no final resolution was reached. The transaction was therefore not concluded. At no time did Carvel Corporation approve the sale as set out in the contract of May 14, 1973, or in the closing statement dated August 15, 1973. On October 23, 1973, Mr. Broberg, representing Ms. Barratt, wrote to Mr. Colbath, the attorney for the Carusos, stating that the transaction could not be consumated, and demanding that monies held by Attorney Colbath be returned to Ms. Barratt. He further stated in the letter: "It would be appreciated if you would forthwith inform Mr. Ralph J. DePaola of Rabern Business Associates, Inc. that the sale has terminated and request that he return the $4,000, which he is holding, to Mrs. Barratt." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). On December 19, 1973, Mr. Colbath wrote to Mr. Broberg concerning monies that had been held by him, and with respect to the monies held by Mr. DePaola stated as follows: "The balance of $4,000 that was originally deposited with Mr. DePaola has, as you know, been retained by him as his commission. I am by copy of this letter informing Mr. DePaola what has transpired since we last talked and ask that you contact him directly." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). No further demands were made by Ms. Barratt, or on her behalf, to the Defendant for the return of the $4,000. The Defendant did not have any agreement with Ms. Barratt that Ms. Barratt would be responsible to pay any commission to the Defendant. Four thousand dollars is listed on the August 15, 1973 closing statement as a sellers' expense. Mr. DePaola testified at the hearing that he considered the matter closed as of August 15, 1973; however, Mr. DePaola did know, or should have known, that approval by Carvel Corporation had not been obtained, and was necessary. Mr. DePaola has retained the $4,000, and it has not otherwise been returned to Ms. Barratt. The Defendant was not aware of the additional $8,000 obligation which the sellers owed Carvel Corporation on May 14, 1973, when the Purchase and Sale Agreement was signed, or on August 15, 1973, when the transaction was preliminarily closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Count I of the Information against Ralph J. DePaola be dismissed. That Count II of the Information against Ralph J. DePaola be dismissed. That Count III of the Information against Ralph J. DePaola be dismissed. RECOMMENDED this 24th day of February, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Recommendation Based on the foregoing facts and conclusions of law, I recommend that the information filed herein be dismissed in it's entirety. Done and Entered this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Walsh and Associates By Gerald M. Walsh, Esquire 404 Courthouse Square Building 200 Southeast Sixth Street Ft. Lauderdale, Florida 33301
The Issue Whether the license of Respondents should be revoked or suspended or other discipline imposed.
Findings Of Fact Upon consideration of the evidence received, the testimony elicited at the hearing, argument of counsel and memoranda submitted by the parties, I find: Respondent, Florida Coast Realty, Inc., was issued License Number 0168325 as a registered real estate broker corporation. Respondent Steven R. Myer, holds license number 0110787 as a registered real estate broker. Respondent Myer is an Active Firm Member for Respondent, Florida Coast Realty, Inc. In general, the contention of the Petitioner Commission is that the Respondents failed to pay an employee, Sam Blumner, a real estate commission due him on two occasions contrary to certain provisions in Chapter 475, Florida Statutes. The contentions of the Respondents are that the dispute was contractual and not within the jurisdiction of the Petitioner, that they tried to avoid an information being filed against them, and that the alleged offense's are insufficient to justify suspension or revocation. On November 1, 1976, Florida Coast Realty, Inc., by Steven R. Myer, entered into a contract agreement with Sam Blumner whereby Mr. Blumner was to receive a fee earned as a result of service performed by Mr. Blumner as a real estate salesman with Florida Coast Realty, Inc. Subsequently, on January 13, 1977, Sam Blumner was terminated as a salesman with Florida Coast Realty, Inc., and a notice of registrant change was nailed by the corporation to the Pompano Beach-Deerfield Beach Board of Realtors and received by the Board on January 18, 1977. A transaction pertinent to subject hearing was entered into on or about November 11, 1976 in which Walter Ross and Sam Blumner were the "listing" salesmen for property owned by Frank S. Holsclaw and Florence Holsclaw. It was ultimately purchased by Dennis F. and Dione Dicataldo, but subsequent to the termination of the employment of Blumner by Respondents. Mr. Blumner made a claim for $297.00 which represented one-half the listing, or twelve and one-half percent of the office profit. He testified that he was listed on the office "log" as co-lister. Nothing was paid to Mr. Blumner although Mr. Walter Ross, a broker formerly associated with Respondent Florida Coast Realty, Inc. and the co-lister was paid twelve and one-half percent of the office profit. Mr. Ross estimated that he received between $250.00 and $260.00 as "half" listing commission. Mr. Blumner's name did not appear on the listing contract in the transaction because he had not yet been listed as a member of the Board, and only the name of Walter Ross was listed as "salesperson". Mr. Ross testified that he and Sam Blumner were listed together on the transaction and that he himself received half of the listing commission. A registered realtor associate who worked for Respondent, Florida Coast Realty, Inc. at the time, Dorothy E. Reagan, testified that Walter Ross and Sam Blumner were the listing salesmen on the Holsclaw-Dicataldo transaction. The Respondents did not dispute the fact that Walter Ross was paid but one-half the listing commission although they pointed out his was the only name on the written contract. No evidence was entered by the Respondent showing that the remaining one-half of the listing commission was paid by Respondents to anyone. A second transaction pertinent to this hearing was entered into on December 31, 1977 with Mr. and Mrs. Haarar as sellers, and Mr. and Mrs. Grimes as buyers. The closing was several months later and after Mr. Blumner had left the employment of Florida Coast Realty, Inc. Mr. Blumner was the salesman who first showed the purchaser the home later purchased by Mr. and Mrs. Grimes, and was the "procuring cause" of the sale. He made an offer to the seller and counter offer of the seller to the buyer. He related to the Grimes the offer of $27,000, which was the final purchase price of the home and showed these purchasers other property for sale. Mr. Blumner was not paid a commission for the sale of the home. Both Mr. Ross and Mrs. Reagan testified that Mr. Blumner was the salesman on the transaction. Mr. Jerome T. Myer of the Respondent Florida Coast Realty, Inc., stated that Mr. Blumner should have been paid, but not the full commission inasmuch as he had not done the follow-up work involved after the initial procurement of a purchaser for the property. The Respondent, Steven R. Myer and his brother Jerome T. Myer did the follow-up work on the sale of the property in the Haarar-Grimes transaction. Mr. Blumner contends that he made demands for his money both as a co- lister and a salesman, but that no money was paid him. He testified that he would have foregone his commission as a co-lister in the amount of some $260.00 had he received a commission as salesman in the Haarar-Grimes transaction, a sum of some $567.00. Mr. Blumner testified that he endeavored to talk to the Respondent Steven R. Myer about the commission but was interrupted by Jerome Myer, and that he told the Respondents he would have to seek redress through the Petitioner, Florida Real Estate Commission, if he did not receive a commission. A letter was sent to the Petitioner by Respondent Myer on April 7, 1977 requesting information as to the jurisdiction of Petitioner relative to "a dispute with one of my former associates regarding commission money". The Commission acknowledged the correspondence and Respondent Myer was informed that the Commission had received a complaint against him alleging he had failed to account or deliver a commission to a salesman, and that it was being assigned for investigation. The Respondents made little or no effort to settle the dispute prior to the hearing.
Recommendation Suspend the license of the Respondents until the commission has been paid to Sam Blumner as co-lister in the Holsclaw-Dicataldo transaction and a settlement has been made in regard to the Haarar-Grimes transaction. DONE and ENTERED this 21st day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Steven L. Josias, Esquire P. 0. Box 23536 Fort Lauderdale, Florida 33308 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, Petitioner, vs. CASE NO. 78-812 Progress Docket No. 3321 FLORIDA COAST REALTY, INC., and Broward County STEVEN R. MYER, Respondents. /
