Findings Of Fact Arvin C. Moore was a registered real estate broker from January 3, 1977, and active firm member of Real Estate 3 Incorporated, a registered corporate broker with an address registered with the Petitioner Commission as Route 2, Box 59B, Chipley, Florida 32428. Prior to January 3, 1977, Alvin C. Moore was a registered real estate salesman, registered as of September 2, 1975. Regarding the allegations that Respondent Moore was an officer of American Universal Investment Corporation at the time he acted as broker in the Tew transaction, the evidence presented showed that Moore resigned as president of American on April 29, 1977. Negotiations with the purchaser Tew began in the summer of 1977, and the contract between American and Tew was entered into on or about July 20, 1977. Moore was made vice president of American on November 3, 1977, some time after Tew had advised that he did not wish to complete the purchase. The evidence shows that Moore advised Tew that the property in which Tew was interested was owned by members of his family. Whether the corporation was identified as a closely-held corporation is not relevant, because Moore had advised Tew of his potential personal interest in the transaction. Moore advised Tew, after Tew expressed an interest in the property, that he would see for what price his family would be willing to sell the property. Moore advised Tew that the family would sell eleven (11) acres for $9,900. The Administrative Complaint alleges that Moore told Tew that American's cost was $900 per acre, and that this was a misrepresentation concerning the facts of the sale. The evidence shows that the seller, White, received $36,000 from the sale of the property to American; however, American paid $4,000 in brokerage fees to Moore. American's cost was $40,000. The parcel contained approximately fifty-eight (58) acres, but this included approximately eight (B) acres of public roads. In addition some of the land was so low that it was not usable. Depending upon what cost and acreage figures were used, the price per acre varied from $620 to approximately $900 per acre. Moore was representing American in this transaction and, as a real estate broker, was permitted to present the property in its best light. Representing the purchase price as $900 is not a misrepresentation but mere puffing. Moore's sole duty to Tew was to deal at arm's length with him. No evidence exists that Moore did not deal at arm's length with Tew. Further, concerning the representations regarding the cost paid by American, it is noted that these representations are irrelevant to Tew's right to reject the tendered offer from American. No evidence was presented that Tew was induced into the contract by the representation that American paid $900 per acre for the property. American tendered a written contract to White on September 23, 1976, which was rejected. However, this contract became the basis for further negotiation which resulted in an oral contract for sale between American and White. It is difficult, if not impossible, to determine when this contract was consummated; however, negotiations of certain details continued until after the Tew/American contract was executed. These negotiations between American and White included an arrangement for White to transfer the the eleven (11) acre parcel which Tew was purchasing directly to Tew and convey the remainder to American, avoiding a dual transfer and dual taxation. The Complaint alleges that Moore misrepresented the contract to Tew because American did not have title to or an assignable interest in the property. The facts show that a contract did exist between White and American, and that White concurred in the transfer to Tew. Although this oral contract was not legally enforceable, as agent for American Moore was aware that the oral contract was sufficient for American and that American was acting in reliance on its oral contract with White in making on offer to Tew. The contract between American and Tew was a valid enforceable written contract notwithstanding whether American had or obtained title to the White property. Tew could have sued for damages if American had not obtained the property, or for specific performance had American acquired the property and refused to transfer it to Tew. Tew's interests were not jeopardized under the contract. Although Moore's duty to American is not at issue, Moore's duty did not extend to protecting American from its own acts. Moore had no duty to advise Tew that the oral contract for purchase was not enforceable. The evidence shows that Tew accepted the contract for purchase and sale for eleven (11) acres at $9,900 and was satisfied with this transaction until his sister-in-law advised him that one of White's agents had told her American had purchased the property for approximately $500 per acre. At this point, Tew sought to withdraw from the contract. This explains the origin of Tew's complaint against Moore and Tew's interest in the outcome, because the American/Tew contract contained a default clause. Clearly, Tew defaulted on the contract by refusing to go through with it when American stood ready to convey the property to him. Moore deposited the $1,000 deposit check he received from Tew to the escrow account of the Washington County Abstract Company, a title company located and doing business in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no formal action be taken against the Respondents, Arvin C. Moore and Real Estate 3 Incorporated. DONE and ORDERED this 10th day off October, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Russell A. Cole, Jr., Esquire 206 East Iowa Avenue Bonifay, Florida 32425
The Issue The issue in this case is whether Petitioner's real estate broker's license application should be approved or denied.
Findings Of Fact Petitioner, Rhonda S. Dietz, is a 36-year-old woman who currently holds a real estate sales associate's license. She was first licensed by the State of Florida in December 2001 and has held her license in good standing since that time. At the time Petitioner obtained her sales associate license, she disclosed in her application that she had a criminal background. That background included two grand larcenies, possession of a controlled substance, failure to appear, violation of probation, and obtaining property with a worthless check. Each of the offenses will be further discussed below. Despite the criminal history, Respondent approved Petitioner's sales associate's license, and Petitioner has been selling real estate for the past six years. In 2006, Petitioner first applied for a real estate broker's license. Petitioner maintains that in her 2006 application, she disclosed each of the aforementioned events in her criminal history.1 Nonetheless, her application was denied. In May 2007, Petitioner again filed an application for a real estate broker's license. That application clearly contained documentary evidence of her entire criminal history. The events in that history are hereby discussed: The first grand larceny in Petitioner's background was related to the purchase of goods from a K-Mart in 1994 with a bad check belonging to a roommate. Upon discovering the check was bad, Petitioner immediately turned herself in, made restitution, and paid court costs. She was sentenced to five years' probation for that charge. The second grand larceny involved allegations in 1994 by Petitioner's then-current roommates that Petitioner stole property from them when she moved out of the residence. Although Petitioner denied the charge because the claim was merely retaliation by her roommates for moving out, she agreed to a plea bargain at the advice of counsel. Again, she was given five years' probation and made to pay restitution. In 1998, Petitioner was charged with possession of a controlled substance: a vial of testosterone and some pain pills. She explained that these drugs came from a pharmacy where she was working. The pharmacy specialized in treatment of AIDS patients. She had the drugs in her possession so she could turn them over to a medical group that could disperse them to AIDS patients. The pharmacy supported Petitioner and paid for her defense against the possession charge. Petitioner was sentenced to 24 months' probation, court costs, and 50 hours of community service for that charge. Petitioner also had a probation violation in 1998 for failing to appear and for failing to pay a fine related to one of the aforementioned charges. She did not pay the fine due to lack of funds. She failed to appear due to lack of notice. She was placed on ten months' house arrest for the violation of probation. Petitioner met all other conditions of her probation and has not had any criminal activity since the charges listed above. She does not deny the existence of her prior criminal history and has not attempted to hide it from Respondent. When Petitioner applied for a broker's license in 2005, she filed an application that included her criminal history. The application disclosed all of the charges addressed above. Respondent confirmed the charges by referring to a Florida Department of Law Enforcement (FDLE) report. When Petitioner re-applied in 2007, she personally obtained a FDLE report on her criminal background, which she submitted along with her application. Again, she listed all of her prior history in the application. There is no competent evidence to suggest otherwise. Since the time of her last criminal charge, Petitioner has been gainfully employed. She has worked in an office doing medical billing, in a pharmacy, and as a real estate agent. In her current position, she has been entrusted with large sums of money for clients. She has had no adverse employment actions taken against her. Her co-workers state that she has good moral character and is trustworthy. Petitioner has passed the classroom work needed to become a broker; her application for licensure will complete that process. Meanwhile, she continues to sell real estate and is involved in an investor monitoring program. The broker's license will simply allow Petitioner to make a career move by expanding her capabilities in the area of real estate sales. Respondent did not call any witnesses at the final hearing and did not refute or rebut the facts as stated by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission granting Petitioner's application for a real estate broker's license. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
Findings Of Fact Petitioner, Six L's Packing Company, Inc. (Six L's), is in the business of selling produce, including tomatoes. Its principal address is 2020 Scott Street, Hollywood, Florida. Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is engaged primarily in the business of packaging and distributing tomatoes in the New York City metropolitan area. It purchases produce from various sellers such as petitioner. As a licensed agriculture dealer, respondent is required to file a surety bond with the Department of Agriculture and Consumer Services (Department) to insure payment of any indebtedness to persons selling agricultural products to the dealer. In this regard, Fair Chester has filed a $50,000 surety bond under written by respondent, Hartford Accident and Indemnity Company (Hartford). On May 3, 4, 9 and 26 and June 7, 1984, petitioner sold five shipments of tomatoes to respondent for a price of $44,156. 1/ Within the next few months, Fair Chester was beset with financial problems and was unable to pay Six L's and other trade creditors. Because of this, the creditors formed a committee in an effort to secure payment of their claims. Eventually, a composition agreement was drawn whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on condition that each creditor signing the agreement be paid 33 1/3 percent of its claim "in full payment and settlement thereof," and provided that 95 percent or more in dollar amount of all the debtor's unsecured trade creditors accepted the terms and provisions in writing on or before November 13, 1984. More than 95 percent in dollar amount of the trade creditors accepted the terms and provisions of the composition agreement by the November 13, 1984 deadline. Six L's was one of those creditors who accepted the agreement. Although Six L's claimed that it executed the agreement only because of representations by respondent that it could still proceed against the surety bond in a separate administrative action, there is insufficient evidence to support such a finding. Six L's executed the agreement on November 8, 1984, and later received and cashed a check dated November 9, 1984, from Fair Chester in the amount of $14,718.60 which represented one-third of its total claim. Six L's has never rescinded the composition agreement. Even though it signed the composition agreement, and received payment from Fair Chester as promised, Six L's filed a complaint with the Department against respondents on November 15, 1984, seeking payment of the $30,270.60 still owed. That amount was later reduced to $29,437.40 by agreement of the parties. The complaint precipitated the instant controversy. One of the unsecured trade creditors owed monies was J. R. Brooks and Son, Inc. (Brooks), a grower in Homestead, Florida. Brooks refused to enter into the composition agreement unless Fair Chester agreed that Brooks could also file an administrative complaint against Fair Chester seeking recovery against the surety bond. Because Brooks' participation in the agreement was necessary to achieve the requirement that 95 percent or more in dollar amount of all unsecured trade creditors participate in the agreement, Fair Chester agreed to Brooks' proposal. An agreement was formalized by letter from Fair Chester's counsel to Brooks on November 1, 1984. The letter provided that Brooks' "acceptance of the Composition Agreement . . . shall be without prejudice to the complaint and/or proceeding which (it) commenced against (respondents) before the Department of Agriculture and Consumer Services." The agreement was not disclosed to other trade creditors or the surety company. Nonetheless, Six L's learned of this agreement at a later time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Fair Chester Tomato Packers, Inc. pay Six L's Packing Company, Inc. $29,437.40. In the event the principal fails to or cannot pay the indebtedness, Hartford Accident and Indemnity Company shall pay said amount out of the surety bond posted with the Department of Agriculture and Consumer Services. DONE and ORDERED this 24th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 May, 1985.
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, J. R. Brooks and Sons, Inc. (Brooks), is in the business of selling agricultural products. Its offices are located in Homestead, Florida. Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is a licensed agriculture dealer under Chapter 604, Florida Statutes. Its offices are in Mamaroneck, New York. As a licensed agriculture dealer, respondent is required to file a surety bond with the Department of Agriculture and Consumer Services (Department) to insure payment of any indebtedness to persons selling agricultural products to Fair Chester. In this regard, it has filed a $50,000 surety bond underwritten by respondent, Hartford Accident and Indemnity Company (Hartford). Between February and April, 1984, Brooks sold six shipments of `Pony Limes" to Fair Chester for a price of $25,039. Shortly thereafter, Fair Chester experienced financial problems and was unable to pay Brooks and other trade creditors. Because of this the creditors formed a committee in an effort to secure payment of their claims. A composition agreement was eventually drawn whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on condition that each creditor signing the agreement be paid one-third of its claim "in full payment and settlement thereof, and provided further that 95 percent or more in dollar amount of all the debtor's unsecured trade creditors accepted the terms and provisions in writing on or before November 13, 1984. On or about September 2, 1984, Brooks filed a complaint against respondents with the Department which was pending when the offer to participate in the composition agreement was made. Brooks initially refused to accept the composition agreement. Because Brooks' acquiescence was necessary in order to achieve the 95 percent participation, Fair Chester, through its counsel advised Brooks by letter dated November 1, 1984 that its "acceptance of the Composition Agreement . . . shall be without prejudice to the complaint against (respondents) before the Department of Agriculture and Consumer Services of the State of Florida." After receiving this letters Brooks agreed to execute the agreement and did so on November 7, 1984. Accordingly, it is found that it was the intention of the parties to allow Brooks to maintain the action herein. Thereafter, in accordance with the agreement, Fair Chester issued a check in the amount of $7,449.66 to Brooks on November 9, 1984, which represented one-third of its total claim. 1/ The check was endorsed by Brooks and deposited in its bank account. It has never rescinded that agreement. The letter of November 1, 1984, was not disclosed by Fair Chester to Hartford or any other trade creditor who executed the agreement. However, there was no effort on the part of Brooks to have the letter remain secret.
Recommendation Based on the foregoing findings of fact and conclusions of lawn, it is RECOMMENDED that the complaint of J. R. Brooks and Sons, Inc. a against respondents be DISMISSED with prejudice, and its claim against them DENIED. DONE and ORDERED this 3rd day of June, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1985.
Findings Of Fact Petitioner is engaged in the cattle business and sells its cattle to buyers from Florida and from outside Florida. All cattle are sold f.o.b. Clewiston and transportation to destination is paid for by the purchaser. It is the treatment of the sales as instate sales of cattle sold and transported to other states by contract carrier that is the issue in these proceedings. Respondent contends that these sales are instate sales but Petitioner contends that these sales are out-of-state sales for the purpose of computing the income derived from Florida operations pursuant to the provisions of Sections 214.71, 214.72 aud 214.73, Florida Statutes. Had the cattle been picked up by a common carrier for shipment outside Florida, Respondent could have held the sale to be an out-of-state sale for the purpose of computing the Petitioner's income tax. Because the cattle were picked up by contract carrier, Respondent determined the sale to be instate and directed its auditors to so conclude on all audits. This directive was determined to be a rule in case No. 78-1891R and invalid because not promulgated pursuant to the requirements of Chapter 210, Florida Statutes.
The Issue The four count Administrative Complaint presents the following issues: Whether Mr. Burgess is guilty of concealment, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes (2007).2 Whether Mr. Burgess operated as a broker without being the holder of a valid and current license as a broker in violation of Section 475.42(1)(a), Florida Statutes and, therefore, in violation of Section 475.25(1)(e), Florida Statutes. Whether Mr. Burgess failed to ensure his brokerage corporation had a current registration with the Department in violation of Florida Administrative Code Rule 61J2-5.019, and, therefore, in violation of Section 475.25(1), Florida Statutes. Whether Mr. Burgess is failed to account or deliver to the Bells any property or assets which has come into his hands and is not his property and which he is not entitled to retain, in violation of Section 475.25(1)(d)1, Florida Statutes.
Findings Of Fact Clear and convincing evidence establishes the following findings of fact: The parties agree that Mr. Burgess is now, and has been at all times material to this case, a Florida licensed real estate broker, holding license number 701456. Mr. Burgess's business relationship with Willis C. and Nell F. Bell (the Bells) began in 2002 and 2003. In those years he served as realtor in selling a duplex and buying a house located at 42 East Drive, North Miami Beach, Florida. Later the Bells paid Mr. Burgess $1,000 to assist with re-financing the house. In the following years, Mr. Burgess borrowed money from the Bells. The Bells knew little about real estate and the real estate business. They trusted and relied upon Mr. Burgess, and he knew that. Mr. Burgess entered into a contract with the Bells to sell a townhouse located at 648 Northeast Second Street, Homestead, Florida. The contract is titled “Exclusive Right of Sale Listing Agreement” and dated October 3, 2006. The contract identifies Mr. Burgess as an “Authorized Listing Associate or Broker.” It gives Mr. Burgess the exclusive right to sell the Bells’ property and obligated him to market and sell the property. The contract identifies the sale price as $310,000.00. The contract term is October 3, 2006 to April 3, 2007. The first sentence of the contract identifies the parties as the Bells (Sellers) and Mr. Burgess and World Realty (Brokers). Mr. Burgess signed it as “Authorized Listing Associate or Broker.” The signature area identifies the Brokerage Firm Name as Beachfront Realty, Inc. The Bells purchased the Homestead townhouse at Mr. Burgess’s urging. He convinced the Bells that buying the Homestead townhouse was a good real estate investment. Mr. Burgess also loaned the Bells $3,000 or $3,500 to help them purchase the property. Mr. Burgess did not succeed in finding buyers for the property. Mr. Burgess proposed to the Bells that they rent the property. He repeatedly offered to locate a tenant for them. For some time the Bells resisted the idea because of concerns about wear and tear and possible damage to a new townhouse. Finally they agreed. Mr. Burgess identified a tenant, Ms. Kenya Horne. He repeatedly told the Bells that Ms. Horne’s occupation and lease of the townhouse were dependent on approval to participate in a government rent support program. Mr. Burgess prepared and the Bells executed a lease with Ms. Horne for the period beginning October 8, 2007 and ending September 30, 2008. It provided for lease payments of $1,300.00 per month and a security deposit of $1,300.00. Mr. Burgess signed the lease as a witness. But the Bells told Mr. Burgess that they did not want Ms. Horne to take possession of the townhouse until they met and approved her. Mr. Burgess agreed. He repeatedly assured the Bells that he would not give Ms. Horne possession of the property until they had met and approved of her. Also Mr. Burgess repeatedly advised the Bells that Ms. Horne had not moved into the property because she could not obtain needed approval for rent assistance. These assurances were false. Despite his repeated assurances and statements, Mr. Burgess gave the tenant possession of the property. She lived there four or five months. During the same time period, while the tenant occupied the property, Mr. Burgess was telling the Bells that Ms. Horne had not obtained rent assistance and that renting the property to her was not going to work. He never told the Bells that the tenant moved in. And he never gave the Bells any rental payments or a deposit or made any arrangements for them to receive rental payments or a deposit. Uneasy about matters, the Bells traveled with Laurence Linder, a friend who was a real estate broker and insurance salesman, to Homestead to inspect the townhouse. They found that the property had been occupied and damaged. The damage included holes in several walls and fire damage in the kitchen. The stove and microwave were destroyed. The carpet was damaged. The Bells called Mr. Burgess from the townhouse and asked him how the property was. Mr. Burgess did not know that the Bells were at the townhouse. He told them it was in fine shape. When the Bells told Mr. Burgess that they were in the townhouse, he broke down and cried and admitted he had let somebody live there without telling them. When the Bells confronted Mr. Burgess with his actions and the damage, Mr. Burgess admitted deceiving the Bells about the tenant and her occupation of the townhouse. He promised to make restitution for the damage. Mr. Burgess signed a document titled Remedy of Rental. In it he agreed to do the following: Pay the City of Homestead’s final outstanding utility bill of $1,700 on or before March 14, 2008. Pay the Bells $4,600 to repair damage and an additional $2,000. Pay the Bells $5,200.00, the rental amount from October 2007 to January 2008, on or before April 11, 2008. Pay all amounts by certified or cashiers check. Mr. Burgess did not make any of the payments agreed to in the Remedy of Rental.
Findings Of Fact On June 6, 1975, respondent entered into a written agreement with John R. Lovett, III, a real estate salesman. Among other things, this agreement provided: When Salesman performs any service whereby a commission is earned, the commission when collected, shall be divided between the Broker and Salesman in the manner as set out in Schedule attached hereto, or the office policy manual of the broker. The agreement also specified that a [s]alesman's right to commissions or divisions thereof, which accrued prior to the termination of this contract shall not be divested by the termina- tion hereof. The parties stipulated that no written schedule or office policy manual ever existed but that, under an oral agreement between respondent and Mr. Lovett, respondent would have paid Mr. Lovett $441.00 if he had been employed when the Oliver-Kelly transaction closed and had otherwise performed the duties of a listing salesman. Mr. Lovett and respondent never discussed what would happen as to listing commissions when he left her employ. While employed by respondent, Mr. Lovett obtained for the firm the exclusive right to sell a home belonging to Mr. and Mrs. Oliver. Thereafter, Mr. Lovett facilitated execution of a contract between the Olivers and the Kellys in which the Kellys agreed to buy the house for $34,000.0 "contingent upon purchaser qualifying for a VA insured loan in the amount specified." On August 11, 1975, the property was appraised at less than $34,000.00; and a "VA insured loan in the amount specified" proved unavailable to the Kellys. About the time this contract fell through, Mr. Lovett said he was going to Mt. Dora to look for work. The last week of August, 1975, Mr. Lovett spent in Orlando looking for a job. At the end of the week, Mr. Lovett returned to respondent's office, cleaned out his desk and announced that he was leaving. Respondent heard him say this before she left town for a long weekend. The following Tuesday, when the office reopened after Labor Day, respondent wrote petitioner, advising that Mr. Lovett was no longer associated with her as of the date of the letter. Mr. Oliver, who had moved to Georgia, returned to Brevard County for the Labor Day weekend and contacted respondent's office. Respondent's son, who was working as a real estate salesman for his mother, reopened discussions with the Kellys. As a result, the Kellys agreed a second time to buy the Olivers' house, this time at a price of $31,500.00. This second agreement, styled an "Amendment" (sic) to the first contract, was reduced to writing and signed by the principals on August 30, 1975. This second agreement provided that respondent's office be paid a commission of $2,205.00. The transaction closed the following month. Respondent originally refused Mr. Lovett's demands for commissions on account of the Oliver-Kelly sale. After Mr. Lovett left respondent's office, however, respondent paid him both listing and sales commissions on account of another transaction which closed before he left respondent's employ. After Mr. Lovett enlisted the aid of petitioner, respondent paid Mr. Lovett $220.00 in settlement of his claim for the listing commission on account of the Oliver- Kelly sale.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 7th day of May, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida 32802 Charles Holcomb, Esquire Post Office Box 1657 Cocoa, Florida 32922
