Findings Of Fact This cause came on for consideration based upon the Administrative Complaint filed by the Petitioner, Florida Real Estate Commission vs. Cecil V. Cancer t/a Cancer Realty, Respondent. The Respondent has opposed the Administrative Complaint and demanded a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The Florida Real Estate Commission is an agency of the State of Florida which has as its primary function the regulation of certain licensees who hold various registrations with the Petitioner. The Respondent, Cecil V. Caneer t/a Caneer Realty, holds License No. 0012862, under the authority of the Florida Real Estate Commission. This license entitles the Respondent to act as a real estate broker in the State of Florida. At all times pertinent to the Administrative Complaint, the Respondent has been so licensed. On August 12, 1974, the Respondent entered into a management agreement with James Thomas Quinn and his wife, Phyllis J. Quinn, to manage certain property in Jacksonville, Duval County, Florida, located at 5639 Minocqua Street. The terms and conditions of that management agreement may be found in the Petitioner's Exhibit No. 3 admitted into evidence. This management agreement entitled the Respondent to receive certain brokerage fees for his services to the Quinns in leasing, collecting rents, maintaining the property, entering into service contracts, effecting certain repairs and making disbursements from the owners' proceeds and with a portion of the rents to be deposited for purposes of satisfying the mortgage payments owed on the property. In addition, the Respondent was responsible for making periodic itemized statements of receipts, expenses, charges and accruals, and to remit the net proceeds to the owners. The Quinns, through the management agreement, agreed to pay the various percentages set forth in the brokerage fee arrangement and to assume the full responsibility for the payment of expenses and obligations incurred in connection with the exercise of the Respondent's duties under the management agreement. The owners left the State of Florida at a time when the management agreement was still in force and effect. In November and December, 1976, the property was in a state of disarray, and a number of items needed to be repaired. Under the terms and conditions of the management agreement and with the written permission of Mrs. Quinn, dated December 20, 1976, the Respondent made a number of repairs to the property. The letter spoken of may be found as the Petitioner's Exhibit No. 4 admitted into evidence. The Respondent also made two mortgage payments in behalf of the Quinns for the months of December, 1976, and January, 1977. An itemized statement of the monies expended by the Respondent, less the security deposit of the tenants who were living in the rental property in late 1976, may be found in the Petitioner's Exhibit No. 2 admitted into evidence. The Respondent requested the Quinns to reimburse him for the money that he had paid in making repairs and for the mortgage payments made on the property. The Quinns refused to pay the Respondent, and acting on the advice of his attorney, the Respondent filed a claim of lien against the subject real property at 5639 Minocqua Street, Jacksonville, Duval County, Florida, which is the property of the Quinns. The Claim of Lien may be found as the Petitioner's Exhibit No. 1 admitted into evidence. It sets out that the Respondent spent $220.58 for certain repairs and payments for other repairs, with the total value of materials and labor being $441.79. In fact, the $220.58 was spent for the mortgage payments on the property for the months of December, 1976, and January, 1977. The balance of the $441.79 was for the items of repairs as itemized in Petitioner's Exhibit No. 2, less the security deposit spoken of. At the time the lien was placed, the Respondent was also of the persuasion that the Quinns intended to sell the property. Under these facts as shown, the Petitioner, Florida Real Estate Commission, is convinced that the Respondent has violated certain laws pertaining to his licensure by the Florida Real Estate Commission. Specifically, the Petitioner feels that the act by the Respondent of placing the lien upon the public records of Duval County, Florida, against the property of the Quinns, was a utilization of a document which purports to affect the title of, or encumber, the real property of the Quinns and was for the purpose of collecting a commission or to coerce the payment of monies in violation of Subsection 475.42(1)(j), Florida Statutes. The Petitioner believes that these acts constitute a violation of Subsection 475.25(1)(d), Florida Statutes, and finally, that for these acts the Respondent is guilty of dishonest dealing, in violation of Subsection 475.25(1)(a), Florida Statutes. The lien in question does purport to affect the title of and encumber the real property of the Quinns, and it has been placed by the Respondent, a real estate broker licensed by the Florida Real Estate Commission. It has been placed in the public records of Duval County, Florida. However, it was not placed for the purpose of collecting a commission or to coerce the payment of money to the Respondent. The Respondent was acting under the express authority of the management agreement and letter of instruction of December 20, 1976, from Mrs. Quinn, and pursued his legal remedies by filing the lien, when it was determined that the Quinns did not intend to reimburse him for the authorized expenditures and mortgage payments on the rental property. Likewise, there has been no showing that the Respondent is guilty of dishonest dealings in violation of Subsection 475.25(1)(a), Florida Statutes. When the alleged violation of Subsection 475.42(1)(d) Florida Statutes, failed, the allegation under Subsection 475.25(1)(d) becomes irrelevant, due to the fact that the purpose of Subsection 475.25(1)(d), Florida Statutes, is to implement the penalties found in Section 475.25, Florida Statutes, in the event of any violation of provisions of Chapter 475, Florida Statutes, other than Section 475.25, Florida Statutes violations.
Recommendation It is recommended that the Petitioner, Florida Real Estate Commission, dismiss the Administrative Complaint against the Respondent, Cecil V. Caneer t/a Caneer Realty, and allow the Respondent to go forth without further necessity to answer to those allegations. DONE and ENTERED this 22nd day of November, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Salvatore A. Carpino, Esquire Florida Real Estate Commission Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802 David C. Goodman, Esquire 1387 Cassat Avenue Jacksonville, Florida 32205
Findings Of Fact Respondent Charles N. Lyle is now and was at all times referred to in these Findings Of Fact a licensed real estate salesman having haen issued licensed number 0340311. Between March, 1982 to July, 1982, respondent was licensed as a real estate salesman and in the employ of Pardee-Chappell Realty and Investment Corporation. In May, 1982, respondent entered into an oral rental management agreement with Edward Ingersoll to rent and manage certain residential property located at 2941 Northeast Third Street, Ocala, Florida for a management fee of $15.00 per month, said fee to be paid directly to respondent. In connection with the management agreement, respondent secured a tenant and collected rent each month, depositing the rent into a special account at the First Marion Bank of Ocala maintained in the names of Sharon Lyle, respondent's wife, and Edward Ingersoll, the owner of the property. From approximately May, 1982 to February, 1983, respondent was compensated $15.00 per month as a rental management fee from Edward Ingersoll. Respondent did not deliver the rental payments collected and compensation received to his employing broker, and respondent's employing broker, Pardee- Chappell Realty and Investment Corporation, had no knowledge of and did not consent to respondent's actions. Respondent engaged in the transactions in such a way as to conceal from Mr. Ingersoll and the lessee of Ingersoll's property his association with pardee-Chappell Realty and Investment Corporation; likewise, respondent engaged in the transactions in such a way as to keep Pardee-Chappell Realty and Investment Corporation from earning about the Ingersoll management agreement. The Administrative Complaint in this action could not be served on respondent at the address of his last broker of record because he had left the employ of his last broker of record. A later attempt to serve respondent at his residential address according to the records of the Department of Professional Regulation, 720 Northeast Thirty Street, Ocala, Florida 32670 also was unsuccessful. Thereafter, a notice was published in a newspaper of general circulation in the Ocala area, and respondent telephoned the Department of Professional Regulation from Atlanta, Georgia. Respondent asked that the Administrative Complaint be mailed to him at 720 Northeast Thirty Street, Ocala, Florida 32670. Approximately one month later, on or about March 1, 1984, respondent signed his Election Of Rights acknowledging receipt of a copy of the Administrative Complaint and requesting a formal hearing. Respondent's Election Of Rights was received by the Florida Real Estate Commission on March 6, 1984. Subsequently all notices of hearing have been returned undelivered, and subsequent efforts to contact respondent by telephone and personally by Department of Professional Regulation investigators have been unsuccessful.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission revoke the license of respondent, Charles N. Lyle. RECOMMENDED this 4th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1984. COPIES FURNISHED: Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles N. Lyle 720 N.E. Thirty Street Ocala, Florida 32670 Harold Huff, Executive Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Fred Langford, Esquire 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact The Defendants are registered with the Florida Real Estate Commission as brokers. The Defendant Mershon is the President of the Defendant Orlando Metro Realty, Inc. During May, 1971, the Defendant Mershon, acting as a real estate broker, negotiated a sale of land from Carolina Caribbean Corporation to Edye Lynn. The property is located in North Carolina, and the contract for sale was signed in an airplane between North Carolina and Florida. For reasons that are not relevant to this proceeding, Ms. Lynn became disenchanted with the transaction. The Defendant Mershon agreed to assist her in finding a purchaser. On January 23, 1972, Charles Schiller Martin, signed a contract to purchase Ms. Lynn's property. The Defendants acted as brokers in securing the purchaser. The contract was signed in North Carolina. The contract was received in evidence, and is marked as Exhibit number 1 to each of the four depositions. Mr. Martin deposited the sum of $500 with the Defendant when he signed the contract. A copy of the cancelled check from Mr. Martin to the Defendants was received in evidence and is marked as Exhibit number 2 to each of the depositions. Ms. Lynn accepted Mr. Martin's offer. Mr. Martin submitted the contract to his attorney, George W. English III. On March 7, 1972 Mr. English wrote to Henry J. Prominski, an attorney who represented Ms. Lynn, requesting that several items respecting the property be forwarded to him. This letter was received in evidence and is marked as Exhibit number 5 to each of the depositions. On March 22, 1972, Mr. English wrote to Mr. Prominski informing him that Mr. Martin wished to cancel the contract to purchase. A copy of this letter was received in evidence, and is marked as Exhibit number 3 to each of the depositions. Mr. English advised Mr. Martin that marketable title could not be delivered, primarily because there were deed restrictions applying to the property which were not mentioned in the contract for sale. Assessments for water, sewer, and road grading were cited by Mr. English as particularly onerous. The March 22 letter was followed on April 25, 1972, with another letter. This letter was received in evidence, and is identified as Exhibit number 4 to each of the depositions. Mr. English never made any direct demand upon Mr. Mershon for return of the $500 deposit to Mr. Martin. He did make a demand upon Mr. Prominski. It is Mr. English's legal opinion that the seller could not deliver marketable title to the buyer. Mr. Prominski, representing the seller, is of the opinion that marketable title was available to be delivered to the buyer. Mr. Prominski stated that his client did not default in her obligations under the contract. Mr. Mershon opted to construe the purchase contract between Mr. Martin and Ms. Lynn as breeched by Mr. Martin. He forwarded $250 of the deposit to Ms. Lynn and retained $250 for himself. He explained his action in this regard in a letter to Mr. Prominski dated September 13, 1972. This letter was received in evidence, and is marked as Defendants' Exhibit number 1. This arrangement was apparently satisfactory to Ms. Lynn, and Mr. Prominski communicated Ms. Lynn's approval through a letter dated October 11, 1972. This letter was received in evidence, and is marked as Exhibit number 8 to each of the depositions. Approximately three weeks prior to the time that Mr. Martin signed the contract to purchase the Lynn property, Mr. Mershon delivered copies of various reports to Mr. Martin, including the restrictions that would apply to the property, and the contract to purchase from Carolina Caribbean Corporation which had been executed by Ms. Lynn. At approximately the time that Mr. Martin signed the contract, Mr. Mershon advised him that title insurance was available. The Defendants acted as brokers in many transactions in the development in which the property involved in this case is located. They had obtained title insurance on many similar lots. Only in this case was there any objection to title. Prior to his distributing $250 of the $500 deposit to Ms. Lynn and his retaining the remaining $250, Mr. Mershon consulted with attorneys for Carolina Caribbean Corporation who advised him that the Martins had defaulted in their obligations. Mr. Mershon personally spent approximately $1,000.00 in transporting Mr. Martin from Florida to North Carolina. Defendants did not seek the advice of the Florida Real Estate Commision respecting the disposition of the deposit monies, did not submit the issue to arbitration, did not interplead the parties, and did not otherwise seek an adjudication in a proper court. No evidence was offered with respect to standards for determining the marketability of real property in North Carolina. No evidence was offered respecting the marketability of title to the land in this case, other than the opinions of Attorney English, Attorney Prominski, and Defendant Mershon.
The Issue Whether the respondent's license as a real estate broker should be revoked, suspended, or otherwise disciplined because respondent entered a plea of guilty to the offense of unlawful compensation.
Findings Of Fact Respondent is and was at all times pertinent to this proceeding a licensed real estate broker with the State of Florida, holding license number 0166810. On June 18, 1982, an information was filed in the circuit court charging that between the dates of December 10, 1980 and December 1, 1981, the respondent "did corruptly request, solicit, accept or agree to accept money not authorized by law for past, present, or future performance, to wit: by sending business to Don's Alignment Shop, which said ALBERT RONALD HURLBERT did represent as having been within his official discretion in violation of a public duty or in performance of a public duty, in violation of Section 838.016, Florida Statutes." On July 16, 1982, the respondent appeared before Judge Thomas Oakley and entered a plea of guilty to the offense of unlawful compensation as charged in the information. Adjudication of guilt was withheld and respondent was placed on probation for a period of four years. Respondent was given an early release from probation on August 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter an order finding that the respondent has been convicted or found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing and revoking the respondent's real estate license. DONE and ENTERED this 27th day of February, 1985, in Tallahassee, 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 27th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Mr. Albert R. Hurlbert c/o Hurlbert Realty 8117 Lakeland Street Jacksonville, Florida 32205 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32303 Howard Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the post-hearing memorandum and the entire record compiled herein, the following relevant facts are found: By letter dated February 18, 1983, the Florida Real Estate Commission (sometimes herein referred to as the respondent or the Commission) advised the petitioner that his application for licensure as a real estate salesman was denied based upon petitioner's answer to question 6 of the licensing application and his criminal record. On September 1, 1982, petitioner held a Mutuel Clerk's Occupational License (NOP-00455) issued by the Division of Pari-Mutuel Wagering, Department of Business Regulation, State of Florida. While acting in the capacity of a mutuel clerk at Calder Race Course in Dade County, Florida, Petitioner, on September 1, 1982, cashed a winning one dollar ($1.00) trifecta ticket for the eighth race on August 28, 1982, valued at six hundred thirty-six dollars and eighty cents ($636.80) for Metro-Dade Organized Crime Bureau Detective, Jonas Sears, for a cash fee payable to Petitioner. Petitioner did not require Detective Sears to complete the necessary internal revenue service form W-2G which is required of any patron winning six hundred dollars ($600.00) or more. On October 22, 1982, petitioner entered into a consent order with the Division of Pari-Mutuel Wagering wherein petitioner agreed to certain findings. Based on those findings, petitioner agreed to a suspension of his pari-mutuel license for a period of seventy-five (75) days. A clerk who engages in such conduct violates Section 550.16(7), Florida Statutes and Rule Section 7E- 6.07(3)(6), Florida Administrative Code. Petitioner also admitted to deducting sixty dollars and eighty cents ($60.80) as a cash fee payable to him for not requiring Detective Sears to complete the necessary Internal Revenue Service form W-2G.
Recommendation That the respondent enter a Final Order denying petitioner's application for licensure as a real estate salesman. RECOMMENDED this 14th day of September, 1983 in Tallahassee, Florida. JAMES E. BRADWELL, 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 14th day of September, 1983.
Findings Of Fact At all times relevant to this proceeding, the Respondent, Jack Folk, has held an active real estate brokers license. From February 9, 1978, till December 14, 1978, Mrs. Evelyn Wilhelm, the Complainant, worked for the Respondent as a real estate broker. Pursuant to an employment agreement signed by Mrs. Wilhelm and the Respondent, she was to receive 80 percent commission on sales subject to exceptions for sales made by the Bo-Jac Realty Office or Bo-Jac Realty Listings. Out of the 80 percent, Mrs. Wilhelm was expected to pay all of her expenses. Due to continuing disagreements between the Complainant and Mr. Folk, Mrs. Wilhelm listed her license with another broker on December 14, 1978, without informing the Respondent of such action within 30 days prior to such termination as required by their employment agreement. The broker that she listed her license with was not a member of the Multiple Listing Service and Mrs. Wilhelm continued to use the Respondent's Multiple Listing Service after she had severed their professional relationship. Between December 18, 1978 and January 11, 1979, the Complainant continued to take referral calls from Respondent's office. When the Respondent learned from Mr. Wilhelm, the complainant's husband, on January 11, 1979, that the Complainant was registered with another broker, he immediately notified the Florida Real Estate Commission of such dual registration. At the time Mrs. Wilhelm left the Bo-Jac office, there were five pending or completed real estate closings in which she was involved and was owed money by the Respondent. One of these was designated as "Hart-Esposito" by the parties and is referred to as "Hart" in the Administrative Complaint. The Respondent was reluctant to pay the commissions to the Complainant because of legal advice he had received from his attorney concerning Section 475.42(1)(d), Florida Statutes and a possible breach of the employment agreement. This information was forwarded to the Complainant on January 25, 1979, via letter from Mr. Robert Saylor, attorney fro the Respondent. Upon the advice of counsel, Mr. folk deposited the disputed commissions in an escrow account and through his attorney notified the parties of this occurrence. The Complainant retained counsel who filed suit on the commissions on March 2, 1979. The Respondent counter-claimed and presented affirmative defenses outlining his position concerning the alleged breach of the employment contract and the dispute over the percentage of commissions due. Counsel for both parties entered into settlement negotiations which led to a voluntary dismissal by the Complainant on January 15, 1980 of the pending civil action. Although the civil action was filed by the Complainant, the Respondent also contemplated filing suit over the commissions. The Complainant simply filed her action before the Respondent's counsel file his.
Recommendation Therefore, it is RECOMMENDED: That the complaint filed against the Respondent, is DISMISSED. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Salvatore A. Carpino, Esquire C. B. Stafford, Executive Director Staff Attorney Florida Real Estate Commission Department of Professional 400 W. Robinson Street Regulation Post Office Box 1900 2009 Apalachee Parkway Orlando, Florida 32801 Tallahassee, Florida 32301 Robert L. Saylor, Esquire 618 U.S. Highway One Post Office Box 14667 North Palm Beach, Florida 33408
