Findings Of Fact Evidence reveals that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. Said application revealed that Defendant, Frank Viruet, was to become the Active Firm Member Broker, and Vice president of the Company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; and that Lee Klien was to become president and Director of the company. The application also revealed that Carol Bauman is the wife of the Defendant Bernard Bauman (Progress Docket #2357); that Lee Klien is the sister of Carol Bauman; and that Defendant Jeffrey Bauman (Progress Docket #2858) is the son of Bernard Bauman. Subsequent to filing the above corporate application For registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that at each such change, new application For corporate registration was filed with the Commission. Further, the stated offices and Active Firm Member Broker remained the same. Thus, For all legal purposes, the above corporate entities are one and the same. As to Count One of the complaint, according to the certificate of the Commission's Chairman, dated December 3, 1976, (which was offered and received into evidence without objections), during the period November 1, 1975 through the date of said certificate, no registration was issued to or held by either of the three corporations above referred to. This was confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet the broker, who was to have become the Active Firm Member Broker For the above entities. Approximately December 2, 1975, evidence reveals that Land Re-Sale Service, Inc., entered a written lease For office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, For the period January 1 through December 31, 1976. (A copy of the lease was entered into evidence by stipulation). The unrebutted testimony by Plaintiff Reagan was that he observed during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty, Inc., Room 212 (2nd Floor). A similar display on the building directory appeared on the second floor. Plaintiff's witness, Peter King, a representative of and For Southern Bell Telephone Company, testified that on December 27, 1975, three phones were installed in said room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc., and that from January 1 through January 16, 1976, approximately 575 phone calls were made from such phones during evening hours to out-of-state numbers. Jeffrey Bauman and Bernard Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but did not recall nor introduce records as to how many calls were in fact made. Jeffrey Bauman testified that Frank Viruet had also made phone calls from the stated phones but did not state whether they were solicitations. On this point, Frank Viruet denied making solicitation calls although he admitted using the phone For other purposes. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 For each listing received. He further testified that upon being advised, by the investigator with the Commission, that the operation was in violation of the licensing law by reason that no registration had been issued to the applicant company, and that all who were engaged in real estate activities For said company were in violation of the licensing law, the premises were closed and all real estate activities ceased. This was confirmed by nominal Plaintiff Reagan. Frank Viruet denied having knowledge of real estate activities being conducted by the Baumans. He further denied knowledge that office space in Room 212 of the Nankin Building was occupied by Land Re- Sale Service, Inc. and used by the Bauman's. He admitted to signing the application For registration which was submitted to the Commission as the corporate Active Firm Member Broker to be. As to Count Two, evidence established as stated above, that defendants Jeffrey and Bernard Bauman had solicited real estate sales listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, the Baumans, admitted by their own testimony that their listings were never published or otherwise disseminated to brokers either intrastate or nationwide. Bernard Bauman testified that no money was ever returned to senders. There was no evidence received to show that Defendant Frank Viruet knew that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation; nor that Viruet was aware that solicitations were being made. As to Count Three, Plaintiff alleges that the acts and doings set out in Counts One and Two establish a course of conduct by defendants upon which revocation of their registration should issue.
The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact 1. Adopted in Finding of Fact 10. 2-4. Rejected as Conclusions of Law and not Finding of Facts. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as contra to the weight of the evidence in that Hardage, for Respondent Benchmark, arranged the joint venture which culminated in the sale. Rejected as contra to the weight of the evidence. 9-10. Adopted in Finding of Fact 6. Adopted in Findings of Fact 6 and 7. Rejected as contra to the weight of the evidence. Rejected as a Conclusion of Law and not a Finding of Fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the allegations against the Respondent, David W. Stuart, and the allegations of a violation of Section 475.25(1)(b), Florida Statutes, against Respondent, Benchmark Brokers of Destin, Inc., be dismissed, but that the license of Benchmark Brokers of Destin, Inc., be suspended for a period of 90 days for the violation of Section 475.25(1)(d), Florida Statutes. RECOMMENDED this 3rd day of March, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1986. COPIES FURNISHED: Arthur Shell, Jr., Esquire Division of Real Estate Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 David L. Selty, Esquirer Executive Park, Building H, Suite 3 11 Racetrack Road, NE Ft. Walton Beach, Florida 32548 Harold Huff, Exec. Director Division of Real Estate Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all Proposed Findings Of Fact submitted by the parties to this case.
Findings Of Fact Based upon the documentary evidence received, my observation of the witnesses while testifying and the entire record compiled herein, I hereby-make the following findings of fact: Respondent, Harry Gorman, is presently, and has been since September 1982, a licensed real estate salesman in the State of Florida (license number 0229673). Respondent is the owner of Lee County Property Exchange, Inc. Lee County Property Exchange, Inc. is organized for the primary purpose of buying and selling real estate lots. The company customarily buys a group of unimproved residential lots and sells them to "wholesalers". Ms. Mary A. Bosley responded to a mass mail advertisement provided by Lee County Property Exchange. Thereafter, on March 31, 1983, Respondent, acting for Lee County Property Exchange as purchaser,, entered into two sales contracts for the purpose of buying two unimproved residential lots with Mary A. Bosley, as seller. Ms. Bosley was represented by counsel at the signing of the contracts. The contracts provided that the purchase price for each lot would be $1,000. The transaction was to close on or before August 1, 1983. The transaction did not close as anticipated on August 1, 1983. From approximately August 22, 1983 to March 15, 1985, Respondent requested and was granted four six month extensions of the closing date. Ms. Bosley granted each extension because she wanted to sell the lots. In accordance with the terms of the contracts between Ms. Bosley and Lee County Property Exchange, two $25.00 earnest money deposits (EMD) were to be held in escrow by Lehigh Title Company, Inc. On April 21, 1983, Ms. Barbara Mast, president of Lehigh Title Company, received the two contracts with the accompanying $25.00 EMD's and "opened a file". Ms. Mast was later informed that the Bosley contracts were "on hold". on March 19, 1985, after the expiration of the final extension of closing date granted by Ms. Bosley, Mr. Burney J. Carter, Esquire, attorney for Ms. Bosley, mailed a letter to Mr. Gorman demanding return of the two $25.00 EMD's. Lehigh Title Company did not receive a request from Ms. Bosley nor Respondent that the two EMD's be taken out of escrow. Neither Respondent nor Ms. Bosley received the two $25.00 EMD's back from Lehigh Title Company. Respondent, upon speaking with a DPR investigator, did not agree to personally mail a check to Ms. Bosley, for the two $25.00 EMD's, but stated that, in his view, Ms. Bosley was entitled to return of the money and that Lehigh Title Company was responsible for sending it to her. Respondent failed to close the two transactions as purchases for economic reasons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued finding the Respondent Harry G. Gorman, not guilty of the allegations contained in the Administrative Complaint. DONE and ORDERED this 29th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 29th day of January, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire; Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Jack J. Pankow, Esquire P. O. Box 580 Ft. Myers, Florida 33902 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street O. Box 1900 Orlando, Florida 32802 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The parties were given 20 days from the date the original transcript was filed with the Division of Administrative Hearings in which to file their proposed findings. Petitioner failed to submit any proposed findings of fact within the specified time limits. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 2, 3 and 4. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 8. The evidence was unclear as to whether the two $25.00 EMD's were in the escrow account up to the date of hearing. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8, (noting the obvious typographical error in Respondent's failure to include the word "not" between "has" and "made"). Partially accepted in Findings of Fact 2, 3 and 4. Respondent's assertion that "Harry Gorman was not acting in his professional capacity as a licensed real estate salesman "is rejected as a conclusion of law and as unnecessary to a resolution of this case. The Respondent, as a licensed real estate salesman, could be subject to discipline for fraud, misrepresentation and/or breach of trust in a business transaction whether or not the fraud, misrepresentation or breach of trust occurred during the course of his "real estate activities".
Findings Of Fact At all times pertinent to the allegations contained in this case, Respondent was a Florida licensed real estate salesman, having been issued license numbered 0376339. Respondent had been employed by American Specialty Properties (ASP) for several years as an expediter prior to being assigned to Tampa, Florida. As an expediter, his duties were to take over stagnated operations of his employer and take whatever action was necessary to clear blockages and bring the operation to a successful conclusion. Respondent came to Tampa to resolve difficulties his employer, ASP, was encountering in regard to certain properties it had contracted to purchase at the Mission Bell Square shopping center being developed in Tampa by K-Mart Corporation. ASP wanted to build on the out-lots and lease the properties to various selected tenants. However, numerous legal and technical problems had come up that delayed the projects, and Respondent was to resolve those problems and get the structures erected and leased. It very soon became apparent to Respondent that his duties for ASP would not occupy all his time, so he secured the permission of Mark M. Mayers, president of ASP and Respondent's employer, to apply for a Florida real estate license and, once having secured it, to engage in outside employment to earn extra income. In furtherance of that plan, after becoming licensed as a real estate salesman, Respondent entered into an arrangement with Timothy Kerwin, president of Max Properties, Inc., in November, 1980, whereby Respondent's license would be registered with that firm, but no actual work would be done within that relationship by Respondent until some further date when Respondent was finished with his Mission Bell Square duties and room was available for him within the Max Properties organization. Kerwin says he does not recall knowing of Respondent's other employment with ASP until February, 1982, when he discovered that Respondent had been instrumental in the sale of the four out-lots at Mission Bell Square, which sale had not gone through Max Properties. He does admit, however, that Respondent may have discussed his work with ASP earlier than February, 1982, and in fact may have advised him that he, Respondent, still had work to do for ASP before he could do work for Kerwin. Kerwin did not, however, check with ASP to determine Respondent's status when he became aware of the possible conflict. When Kerwin found out about the closing of the sales on the Mission Bell Square out-lots, he questioned Respondent about them, and Respondent readily advised him that two lots had been closed and the remaining two were about to be closed. Respondent did bring about the sale of the four out-lots in question. At the time he did this, he was an employee of ASP and paid a regular salary of $2,000 per month plus expenses. A memorandum purportedly from Mr. Mayers dated March 25, 1982, to James W. Roberts, Jr., an independent real estate broker who-had done work on this property for ASP, indicates Respondent was to receive $1,250 commission for the sale of each of the four lots. However, Mr. Mayers indicated that he did not prepare the memorandum, did not sign it, and renounced it. In fact, Mr. Mayers' assistant, Tom Ferguson, in discussions with Mr. Roberts, indicated that notwithstanding the commissions mentioned in the memorandum, Respondent was paid only salary and expenses, and no commissions. I find, therefore, that Respondent did not receive any commission for these transactions nor, for that matter, at any time while he was an employee of ASP. The sale of the four lots was dictated by Respondent's employers at ASP, who, because of changed economic factors, made a business decision to dispose of the four properties rather than follow the prior plan of developing and leasing them. Respondent, in arranging the sales, was following the directions of his employers--not serving as a broker or salesman for commission. The sales were arranged through the offices of Mr. Roberts, and Respondent did not receive any commission out of these sales. He did, however, receive a bonus to his regular salary from ASP, his employer, as a reward for extricating his employer from a potentially unprofitable business arrangement. The negotiations for the sale, however, were conducted during the time Respondent's real estate license was registered with Max Properties.
Recommendation Based upon the foregoing, it is, hereby, RECOMMENDED: That the Administrative Complaint filed against the Respondent in this action be dismissed. RECOMMENDED this 10th day of June, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983 COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Stephen M. Crawford, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 Tampa, Florida 33601 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the Respondent's Florida real estate license should be disciplined because the Respondent was guilty of false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent is guilty of operating Bellwether Developments, Inc. as a broker, without holding a valid license as a broker in violation of Subsection 475.25(1)(a), Florida Statutes. Whether the Respondent is guilty of failure to account or deliver a share of a commission in violation of Subsection 475.25(1)(d)1, Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. The Respondent, Joseph C. McAuliffe, is now and was at all times material hereto a licensed real estate broker in the State of Florida. He was issued license number 0260690 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker percentBellwether Realty, 526-A Emmett Street, Kissimmee, Florida 34741. On January 9, 1990, and August 9, 1990, Respondent in his own capacity and as the chairman and secretary of Bellwether Development, Inc. (not licensed) entered into written contracts to sell four lots to Jerry P. and Kimberly M. Wray. Pursuant to addendum II of the contracts and the agreement dated January 25, 1990, the Respondent agreed to resell the lots within one year at minimum prices of $16,000; provide the buyers with reimbursement for the total closing cost of $689.08 on three lots; and reimburse the buyers for the monthly payments and any other ordinary and necessary expenses related to the lots. Additionally, if no sale were made by Bellwether, the Respondents agreed to buy back the lots and to provide the buyers a 25 percent return on their investment. The Respondent breached the contracts and the January 25, 1990 agreement by failing to sell the lots or repurchase the lots in accordance with the written agreement. Afterward the buyers lost title to the lots as a result of actions in foreclosure. On February 26, 1992, the buyers filed a civil complaint against the Respondent and Bellwether Development, Inc. based, inter alia, on breach of contract, fraud, constructive fraud, and misrepresentation. On July 14, 1993, the Circuit Court in St. Lucie County entered a judgment against the Respondent individually and as an officer of Bellwether Development, Inc. for damages of $67,542.70. The Respondent has failed to satisfy the $67,542.70 judgment or to otherwise pay the money claimed by the buyers, and said debt remains outstanding. Beginning October, 1987 through January, 1989, the Respondent registered Bellwether Realty, Inc., Bellwether Management, Inc. and Bellwether Development, Inc. with the Secretary of State. On October 14, 1987, and on January 18, 1989, Respondent registered Bellwether Realty, Inc. and Bellwether Management, Inc. with the Petitioner. According to Petitioner's official records Respondent maintained a licensed office located at 526A Emmett Street, Kissimmee, F lorida for Bellwether Realty, Inc. and a licensed office located at 200 Albany Avenue, Stuart, Florida for Bellwether Management, Inc. On or about October 9, 1992, the Secretary of State involuntarily dissolved Bellwether Realty, Inc. and Bellwether Development, Inc. for failure to file an annual report. The Respondent was an officer of both corporations. The Respondent operated Bellwether Development, Inc. as a brokerage without a valid license. In late 1990, Annkarol Cemer was employed through Bellwether Realty, Inc. to solicit and negotiate sales contracts. On August 31, 1990, the Respondent, in dissolving that relationship, agreed to pay Annkarol Cemer $4,647.50 in real estate sales commission and $1,000 vacation pay by December 31, 1990. After December 31, 1990, Annkarol Cemer demanded the payment of the $4,647.50 in commissions owed and $1,000 in vacation pay. Respondent received and kept those commissions and refused to share the commission with Cemer. On February 25, 1993, Cemer obtained a Final Judgment in the County Court of St. Lucie County, Florida in the amount of $6,422.60 against Respondent individually and Bellwether. Said judgment remains outstanding.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondent be found guilty of violating the aforementioned statutes, as charged in the Administrative Complaint, and that his real estate license be suspended for two years. It is further RECOMMENDED that Respondent McAuliffe be fined $1,000.00, payable within 30 days of the entry of a final order, and such other and further conditions as the Commission deems just and reasonable. DONE AND ORDERED this 15th day of November, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-17. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Joseph C. McAuliffe, Jr. 3846 S.W. Savoy Drive Palm City, Florida 33990 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0702
Findings Of Fact The testimony revealed that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. The application revealed that Defendant Frank Viruet (FREC Progress Docket 2856) was to become the Active Firm Member Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; that Lee Klein was to become President and Director of the company. Testimony shows that Carol Bauman is the wife of Defendant Bernard Bauman (Progress Docket 2857); that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman (FREC Progress Docket 2858) is the son of Bernard Bauman. Subsequent to filing said corporate application For registration with the Commission, evidence reveals that the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that along with each change, a new application For corporate registration was later filed with the commission. It was noted that the stated officers and active firm members broker remain as stated in the initial corporate application For registration. Thus, it can be concluded For all legal purposes that the above corporate entities are one and the same. Count I of the Administrative Complaint filed herein, reveals that according to the certificate filed with the Commission's chairman dated December 3, which was offered into evidence by Plaintiff and admitted, during the period November 1, 1975 to the date of said certificate, i.e., December 3, 1976, which covers all dates material to the complaint herein, no registration was issued to or held by either of said corporations, Land Re-Sale Service, Inc., Noble Realty Corporation or Deed Realty, Inc. This was further confirmed by the testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, who was to have become the active firm member broker For the above entities. Approximately December 2, 1975, Land Re-Sale Service, Inc. entered into a written lease For office premises known as Room 212, Nankin Building, 16499 N.E. 19th Avenue, North Miami Beach, Florida For the period January 1 through December 31, 1976 (A copy of the lease was entered into evidence by stipulation.) The unrebutted testimony of Plaintiff Reagan reveals that he observed during his investigation of this cause a building directory on the ground entrance floor to the Nankin Building displaying the name Noble Realty, Inc., Room 212 and a similar display on the building directory which was located on the second floor. Plaintiff's witness Peter King, a representative of and For Southern Bell Telephone Company testified that on December 27, 1975, three phones were installed in Room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc. and that from January 2 to January 16, approximately 575 calls were made from the stated phones all during evening hours to out-of-state numbers. Jeffrey Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but failed to recall specifically the number of calls nor did he have records to substantiate this fact. Bernard Bauman testified that from such solicitations, approximately 4 listings were obtained accompanied by an advance fee of $375.00 For each listing. When he was advised by the Commission's Investigator that the operation they were conducting was in violation of the licensing law by reason that no registration had been issued to the company and that all who are engaged in real estate activities therein were in violation of the license law (Chapter 475, F.S.) the premises were closed and all real estate activities ceased. This was further confirmed and unrebutted by plaintiff Reagan. As to Count II, the evidence established that, as stated above, the Defendants Bernard and Jeffrey Bauman had solicited real estate sales listings with representations to out-of-state property owners that listings would in fact be published and disseminated to brokers nationwide. Both Jeffrey and Bernard Bauman admitted that their listings were never published or otherwise disseminated to brokers. Bernard Bauman's testimony reveals that no monies received were returned to senders. There is no evidence introduced to show that Defendant Jeffrey Bauman knew, at the time of soliciting, that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation. As to Count III, plaintiff alleges that the above acts as set Forth above established a course of conduct by defendant upon which his revocation or registration should issue.
