Findings Of Fact Although the parties to this case stipulated that the contract between the LaPointes and the Crowes was a valid contract for the purchase and sale of real estate, a genuine dispute arose between the LaPointes and the Crowes in that regard. Respondents became involved in this matter by showing the Crowes' property to the LaPointes on or before May 9, 1983, and thereby becoming a "co-operating broker'. with Deltona's Marco Island Realty Co. under an Exclusive Right To Sell agreement between Deltona and the Crowes dated January 13, 1983. Under the Exclusive Right To Sell, the Crowes agreed to pay Deltona a fee of 6% of the sales price for brokerage services and agreed, if a buyer failed to close a sales contract and forfeited a deposit to the Crowes, that Deltona could retain one- half of the deposit, but not exceeding the total amount of Deltona's fee, as compensation. The Exclusive Right To Sell also provided that Deltona was responsible to promptly pay any cooperating broker who sells the property for his services as soon as possible after receipt by Deltona of its real estate broker fee as provided in the Exclusive Right To Sell. By May 10, 1983, the LaPointes had made an offer to buy the property and the Crowes, by May 10, 1983, telegram to Deltona, agreed to sell the property for "$165,000, $500 in escrow with balance of $15,500 additional deposit after acceptance with balance at closing . . . sales commission $8,650. On May 11, 1983, Respondent Mary S. Davey, signed the sales contract for the LaPointes' purchase of the Crowes' property as "Agent (authorized by Buyer)." The sales contract also recited: "Buyer acknowledges that Marco Beach Enterprises, Inc/Deltona Marco Island Realty is the procuring real estate broker(s) in this transaction, and that the Broker is the agent for the Seller, and is being paid by the Seller." Respondent. Davey notified the LaPointes of the requirement for a $500 initial deposit and submitted the signed sales contract for the Crowes' signature. By letter dated May 12, 1983, Respondents confirmed "that the total commission to be paid on the sale of the [Crowes'] property is $8,650.00." It also confirmed: said commission is to be split 50/50 between MARCO BEACH ENTERPRISES, INC. and Deltona's Marco Island Realty." Also on May 12, 1983, the LaPointes sent Respondents a check for the $500 initial deposit with a note asking for a complete inventory of the contents of the condominium the LaPointes had inspected and a list of renters. The Crowes signed the Sales Contract on May 16, 1983. By May 24, 1983, Respondents still had not complied with the request for a complete inventory of the condominium's furnishings and for a list of renters. On that date, Respondents sent the LaPointes a copy of the signed Sales Contract with a letter requesting them to sign the Sales Contract under Respondent Davey's signature. Before they arrived, the LaPointes' May 25, 1983, letter to Respondents crossed in the mail. It requested that Respondents put something in the contract concerning pro-ration of water bills and taxes and payment of a water damage bill by the Crowes. The LaPointes repeated their request for an accurate inventory of the furnishings of the condominium and stated that they were placing their trust in Respondents to represent the LaPointes' interests. Some time between the LaPointes' receipt of Respondents' May 24 letter with a copy of the Sales Contract and June 13, 1893, the LaPointes decided to ask for cancellation of the purchase. The LaPointes cited circumstances involving their financing and their disappointment that Respondents had not furnished an inventory of the furnishings. By June 16, 1983, Respondents had responded to the request for cancellation, vigorously contending that a valid and binding contract existed between the LaPointes and the Crowes. By June 24, 1983, the Crowes, through an attorney, echoed their agreement with the position taken by the Respondents that there was a valid and binding contract. By letter dated June 29, 1983, from the LaPointes attorney, the LaPointes questioned the validity of the contract, saying that Respondent Davey had no authority to sign the Sales Contract on behalf of the LaPointes, who never did sign. The Respondents got a copy of this June 29 letter. On July 11, 1983, the LaPointes, through a Florida attorney, demanded of Respondents that their deposit be, returned. Respondents tried to extricate themselves by referring the LaPointes to the Crowes' attorney. The Crowes and the LaPointes remained at a stalemate until after May 7, 1984, when the Crowes sold their property to another purchaser for $162,500. Thereafter, by about June 19, 1984, the LaPointes, the Crowes and Deltona had negotiated their proposed resolution of the matter by disbursement of $3,000.00 to the Crowes and $13,500.00, plus all accrued interest, to the LaPointes. Respondents had not been included in any of these negotiations, and they refused to sign the agreement. As stipulated by the parties to this case, the matter remains unresolved. The Florida Real Estate Commission Handbook states in pertinent part: "But, what are the rights of the seller and the broker? In the absence of a specific agreement or custom, when a purchaser refuses to sign a contract after the offer has been accepted, the broker is only entitled to the agreed or usual commission percentage of the deposit. Where the purchaser refuses to go through with a contract by which he is bound and which can be enforced against him by the seller, the broker may, in the absence of a contract or custom, appropriate the deposit up to the amount of the earned commission."
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint that has been filed by Petitioner, Department of Professional Regulation, Division of Real Estate, against Respondents, Mary S.·Davey and Marco Beach Enterprises, Inc. RECOMMENDED this 7 day of August, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7 day of August, 1986. APPENDIX The following are rulings on proposed findings of fact to the extent required by Section 120.59(2), Florida Statutes (1985): Paragraphs 1 through 6 of Petitioner's proposed findings of fact are accepted as substantially factually accurate and are incorporated in the Findings Of Fact to the extent necessary. Paragraphs 8 and 10 of Petitioner's proposed findings of fact would be included in paragraph 1 above except that they are unnecessary. Paragraph 7 of Petitioner's proposed findings of fact is rejected as unsupported by the evidence. Paragraph 9 of Petitioner's proposed findings of fact is rejected as contrary to the greater weight of the evidence and/or Findings Of Fact. It ignores the Exclusive Right To Sell which must be read together with the Sales Contract. Respondents submitted no proposed findings of fact designated as such or in a form which entitles them to specific rulings. However, their proposed findings of fact were carefully considered. COPIES FURNISHED: Susan Hartmann, Esquire Department of Professional Regulation Division of Real Estate P. O. Box 1900 Orlando, Florida 32802 Arthur V. Woodward, Esquire 940 North Collier Blvd. P. O. Box 1 Marco Island, Florida 33937 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Division of Real Estate Department of Professional Regulation P. O. Box 1900 Orlando, FL
Recommendation Deny the application of Petitioner for Registration as a salesman for the Florida Real Estate Commission. DONE and ENTERED this 6th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Dwaine Eugene Spann Route 2, Box 376S Sarasota, Florida 33582
The Issue The issue posed for decision herein is whether or not James T. Speaks, Respondent, engaged in conduct amounting to a failure to maintain in an escrow bank account deposits he received as a selling broker which were entrusted to him in the course of his brokerage activities until a proper or authorized disbursement of such monies was made. Based on its Administrative Complaint filed on May 17, 1978, the Florida Real Estate Commission, Petitioner, seeks to revoke, annul, suspend or otherwise discipline licensee James T. Speaks, who holds Florida Real Estate License No. 0083459, based on conduct which will be set forth herein in detail.
Findings Of Fact Based on the testimony presented during the course of the hearing, the following relevant facts are found: During October of 1976, Donna W. Ross was a listing broker to sell the property of Katherine Scanlon. During mid-October, 1976, Respondent Speaks located purchasers for the Scanlon property and submitted an offer to the listing broker, which offer was accepted by the seller. Respondent Speaks deposited a $1,000.00 binder deposit in his escrow account. (See FREC Composite Exhibit No. 7.) The closing of the real estate transaction in the Scanlon property took place in Attorney David Booher's office who, based on evidence received during the course of the closing, questioned Respondent Speaks as to the negotiability of a $1,000.00 check Respondent Speaks presented as a refund of the escrow deposit he had tendered to secure the deposit receipt contract for the Scanlon property. Virginia RawIs, who was formerly employed by Booher and Crabtree, Realtors, called the Barnett Bank of Regency to verify if sufficient funds were on deposit in Respondent Speaks' account and was advised that sufficient monies were not on deposit to cover the check. At that juncture, Respondent Speaks acknowledged that he had tendered a check which was drawn on an account without sufficient funds to cover it and agreed that the $1,000.00 binder deposit should be deducted from his commission monies due. This agreement was acceptable to all parties concerned at the closing and another check representing the commission monies due Respondent Speaks, less the $1,000.00 deposit, was drawn and made payable to Speaks. Donna W. Ross, the listing broker, was also present during the hearing and verified the testimony of Attorney Booher respecting the presentation by Respondent Speaks of the $1,000.00 check which was not secured by sufficient funds. As noted in the appearance section of this Recommended Order, the Respondent, James T. Speaks, did not appear during the hearing although copies of the Notice of Hearing were mailed to his last known addresses.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Registered Real Estate Broker license of Respondent, James T. Speaks, be suspended for a period of two (2) years. RECOMMENDED this 5th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner's application for a real estate salesman's license should be approved.
Findings Of Fact Petitioner is Victor Kevin Koellner. By application, he sought licensure as a real estate salesman. Petitioner was a unsuccessful candidate for the December 1988 real estate salesman's licensure examination. Petitioner received a score of 74. A score of 75 is required for licensure. Each correct answer has a grade value of one (1) point. Candidates are instructed to choose the most correct answer from among the multiple choice answers given. Petitioner challenges the answers selected by the Florida Real Estate Commission as correct as to questions numbered 15 and 52, on the test administered on December 5, 1988. Question 15 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1. The commission holds that the correct answer to question 15 is D. (Do any of the above). The Petitioner alleges that the better answer is A. (Request an Escrow disbursement order from the Florida Real Estate Commission). Section 475.25(1)(d), Florida Statutes, supports the Respondent's conclusion. Seventy-three (73%) percent of the candidates taking the examination on December 5, 1988 answered the question correctly. Question 52 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1 (page 2). The commission holds that the correct answer is C. (Pay it at the closing). The Petitioner alleges that the correct answer is D. (Not pay it). The question asked what should the seller do concerning the sales commission at the closing. Based on the facts given in the Florida Real Estate Handbook, 1987 Edition, page 272, the seller would have no option but to pay the commission at closing. Sixty and 3/10 (60.3%) percent of the candidates taking the examination on December 5, 1988 answered question 52 correctly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 28th day of September, 1989, 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 28th day of September, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Respondent's Proposed Findings: 1-8. Adopted in substance. Petitioner's Proposed Findings: Paragraphs 1,2,3,4,5 (in substance), 7, and 10 are accepted. Paragraphs 6,8 and 9 are rejected as not relevant. COPIES FURNISHED: Victor Kevin Koellner, pro se 1385 Taurus Court, Merritt Island, Florida 32953 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case involves the administrative charge which has been placed by the Florida Real Estate Commission in the person of Harold T. Mooney, against one Claude Talmadge Bray who is registered with the Florida Real Estate Commission as a real estate broker. The charging document which is drawn in the form of an information, says in pertinent part: COUNT ONE "(1) That the defendant did, on or about May 21, 1974, file his sworn application for registration as a real estate broker with the Florida Real Estate Commission on a form provided by said Commission. Question 16(a) of the application read as follows: 16(a) Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for the 12 consecutive months within 5 years next prior to the date of this application? If yes, who was the registered broker and what is his business adress? The defendant answered "yes" to the first part of the above question and "Tony Vaughan - Monteverde, Florida" to the second part of such question on his said application for registration. That thereafter the application of defendant, Claude Talmadge Bray, was approved and he subsequently received his registration as a real estate broker, being initially registered as1 such with the Commission on or about September 18, 1974. That, at the time of the execution of the application as aforesaid, the defendant knew or should have known that his answers to question numbered 16(a) thereof were false and untrue in that: From September 10, 1971, to June 30, 1974, inclusive, defendant Claude Talmadge Bray was a full-time employee of Hallmark Leisure Homes, Inc., a construction company with offices at 3744 North 40th Street, Tampa, Florida 33610. While the defendant did register with the Commission as a real estate salesman employed by Lester Tony Vaughan, a registered real estate broker whose last business address is registered with the Commission as Division Street, Monteverde, Florida, 32756, said registration was effected solely for the purpose of attempting to show to the Commission that the defendant wads in compliance with the apprenticeship requirements of Subsection 475.17(3), Florida Statutes; but that, in truth and fact, the defendant Claude Talmadge Bray had served no apprenticeship as required by, and within the intent and meaning of said Subsection 475.17(3), Florida Statutes, with the said Lester Tony Vaughan or any other registered real estate broker, and that the defendant, during said period of purported apprenticeship, had not handled any real estate transactions participated in any closings or received any instructions from, for or on behalf of the said Lester Tony Vaughan, Registered Broker. That by reason therof, it appears that the defendant1 Claude Talmadge Bray, does not possess the necessary qualifications of honesty, truthfulness, trust worthiness and good character as required by Subsection 475.17(1), Florida Statutes; has been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or device, in violation of Subsection 475.25(1)(a), Florida Statutes; and that the defendant obtained his registration as a real estate broker with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation Of Subsection 475.25(2), Florida Statutes. WHEREFORE, plaintiff prays that this Information be filed and notice of the filing thereof be given to the Defendant and that proceedings be had, all in accordance with the provisions of Chapter 475, Florida Statutes, and if the evidence warrants, the registration of Claude Talmadge Bray be revoked." The Respondent has denied the allegations set forth in the charging document, which is entitled an information, and proceeded to a hearing before the Division of Administrative Hearings in the person of the undersigned, under authority of Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner presented its case on the basis of oral testimony presented at the hearing and through tangible items of evidence. The Respondent elected to present evidence in the course of the hearing, and did so through the medium of oral testimony in the course of the hearing and through tangible evidence, which was the subject of a stipulation with the Petitioner. The first witness presented by the Petitioner was Ralph J. Ramer, President of Hallmark Leisure Homes, Inc. Mr. Ramer was the former employer of the Respondent, and additionally was responsible for making a complaint which led to the investigation of this case by the Petitioner. This complaint was in the form of a letter from the witness, Ramer, addressed to the Petitioner and dated July 3, 1974. A copy of this letter has been received by the hearing officer as a Joint Exhibit of the Petitioner and Respondent and Is therefore made a part of the record in this cause. Mr. Ramer indicated that he had hired the Respondent on September 10, 1971, as a salesman with the witness's then existing company, and that the Respondent had been promoted to a vice president's position in 1971 or 1972 after the incorporation of the witness's company. It was further related that the Respondent was terminated from employment by the witness on June 30, 1974. During the course of the Respondent's employment with Hallmark Leisure Homes, Mr. Bray participated in a position which had as its major function the sale of construction contracts for the purpose of building homes on real estate which was held by the purchaser. In addition, when the Respondent became Vice President he made certain connections with the bank, in that he talked with the officers of the banks relative to financing. More specifically, Bray presented sales papers to banks, he followed up on proposed financing, he attended closings of loans if necessary, he took credit statements for potential purchasers, ordered surveys, ordered titles, ordered insurance, prepared deeds, prepared mortgage documents, worked with appraisers, conducted closings and he picked up certain bank draw disbursements from the lending institutions. At these closings, as aforementioned, mortgages were signed and funds were disbursed. In relation to the question of whether or not Mr. Ramer's company and, more particularly, Mr. Bray, were involved in the active sale of real estate, he said that salesman could assist a potential customer in finding land to build houses on. Ramer also indicated that the company, Hallmark Leisure Homes, Inc., had bought four lots in Ocala and had built three houses on these lots. The cause for dismissal of the Respondent, according to Mr. Ramer, was for the reasons set forth in the letter of July 3, 1974, by the witness. Ramer further elaborated that he didn't know that Lester L. Vaughan had made application for professional license to the Florida Construction Licensing Board, while Vaughan was working for Ramer. Therefore, when he found out that Bray was working full-time for the witness and at the same time helping other employees to obtain a contractor's license, which was felt to not be in the best interest of the company because it would promote competition against the company through the employee of the company, Ramer dismissed the Respondent. In response to questions concerning the existence of a certain civil suit filed by the Respondent against Mr. Ramer, the witness acknowledged such a suit, but stated that he had no sense of vendetta against the Respondent. While the Respondent was employed with Hallmark Leisure Homes, the Respondent was preparing for a real estate license exam and serving an apprenticeship according to Lester Vaughan, the younger At the same time there were negotiations with the officials at Hallmark Leisure Homes, in particular, Mr. Ramer, for the purpose of qualifying the real estate broker's license of Lester T. Vaughan in establishing a branch office at the Hallmark Leisure Homes office location on North 40th Street, Tampa, Florida. Moreover, Mr. Ramer was in favor of this arrangement and it didn't appear that these negotiations to establish such an office were in any way designed to defraud the public from Vaughan the younger's observation. When the witness, Lester Vaughan, was specifically asked questions about the nature of the sales in which the Respondent participated, he stated that the sales were not the sale of real estate per se. However, he did indicate that there was a similarity in his mind to the sale of real estate and the sale of "on your lot construction contracts", and he stated this opinion from his knowledge of the function of a real estate broker, being a real estate broker himself. As a matter of fact, the witness felt that the function performed by the Respondent, Bray, was much more detailed than the function of a real estate broker in carrying out the broker's duties. Another significant comment by the witness was his statement that the contract form used by Hallmark Leisure Homes was similar to the form utilized for real estate contracts, testifying from his knowledge. In closing, the witness testified that he and the Respondent had looked for lots to be purchased to build homes on for prospective customers, but that they were never successful in achieving such an arrangement. The Petitioner placed Lester T. Vaughan on the stand, who at the time of his testimony was also charged by the Florida Real Estate Commission in Progress Docket #2671 for Hillsborough County, with an offense relating to the apprenticeship of Claude Talmadge Bray. The witness, Lester T. Vaughan, indicated that he was not working at the time of his testimony, but he had been and office worker for a citrus company. He has been a licensed real estate broker since August of 1972; however, he has never transacted any real estate sales. The witness was shown Petitioner's Exhibits "B", "C", "D", and "E" and identified those documents. Exhibit "B" is a reference statement signed by the witness upon the request for application to be a real estate broker made by Claude Talmadge Bray before the Florida Real Estate Commission. Exhibit "C" by the Petitioner is an application for a branch office registration certificate. Petitioner's Exhibit "D" is a declaration of employment for apprenticeship purposes and Petitioner's Exhibit "E" is a statement of the. applicant's employment and apprenticeship by the witness, Lester Tony Vaughan. (All these documents are copies of the originals). Lester T. Vaughan indicated that the Respondent, Bray, had not made any real estate sales while in his employ and that the figures in the affidavit which is Petitioner's Exhibit "E", were transactions mad Respondent was working with Hallmark Leisure Homes. The witness then testified that the Respondent told him that these were sales while in the employ of Hallmark Leisure Homes and further that he, the Respondent, could use those sales as a basis for stating experience in applying for a Real Estate Broker's License, even though they were not sales of real estate. Lester T. Vaughan testified that he had not talked with Mr. Ramer about locating a branch office on North 40th Street, Tampa, Florida, at the business of Hallmark Leisure Homes, but to his knowledge Mr. Ramer had never voiced any objection to such a branch office at that location. Lester T. Vaughan stated that he had never examined the contract forms or the closing statements utilized by Hallmark Leisure Homes. He had however talked with the Respondent 4 or 5 times in Tampa and several times at his, the witness's home address, about real estate related matters. At the close of the Petitioner's case, the Petitioner offered into evidence Exhibits "A" - "E", all of which have been particularly described, in the course of the findings of fact, with the exception of Exhibit "A" for identification, which is the application for registration as a real estate broker which was filed with the Florida Real Estate Commission by the Respondent, Claude Talmadge Bray. These items of evidence were admitted as evidence after examination and legal argument as will be further described in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent made certain motions at the Inception of the case directed to the sufficiency of the charging document and renewed these motions at the close of the Petitioner's case. These representations by the Respondent will be considered in the section entitled CONCLUSIONS OF LAW. The Respondent offered witnesses in support of his position in the form of a witness to the facts contained in the allegations placed against the Respondent and certain character witnesses in his behalf. The Respondent further elected to take the stand in his own behalf. (All matters offered by the Respondent were premised on the eventuality that the Hearing Officer and/or the Florida Real Estate Commission did not agree with the Respondent's contention that the Petitioner had failed to meet its burden of proof, either in the statement of its pleadings or through presentation of its case in chief). The presentation of testimony on the facts related in this matter was a brief recall of Lester T. Vaughn for purposes of testifying about the facts surrounding the apprenticeship. In this recall Lester T. Vaughan indicated that he felt that the Respondent was a smart young man, by way of responding to a question on the necessity for close supervision of the work by the Respondent. As a follow up he indicated that the broker apprentice did not need day to day supervision. Finally, the witness stated that he felt that bray would have called him if he had needed help from the witness. When the Respondent took the stand, he testified that he is now employed with Ruby V. Williamson, a real estate broker, and that he has been so employed for 6 months as a realtor associate. A brief statement of his background prior to his present employment indicated that he had received formal education to include a bachelors degree and some graduate work, although It was not clear from the testimony that he received a graduate degree. Additionally, it was net established if the formal education had any significance in real estate work. Some of the positions held by the Respondent included work in educational television, teaching, sales positions, and eventually work with Jim Walter Corporation in home sales. While with Jim Walter he served as a branch manager of the offices in Lake City, Florida, Orlando, Florida, and Fredricksburg, Virginia, in the home construction division of that corporation. After leaving Walter Corporation he worked briefly at Allstate Homes and then started with Hallmark Leisure Homes in 1971. At the beginning of his employment with Hallmark Leisure Homes they were a partnership and later became a corporation. The Respondent stated that he started as a salesman with Hallmark Leisure Homes and was elevated to the position of vice president in that corporation at a later date. In his employment with Hallmark Leisure Homes he said that the officials at Hallmark Leisure Homes thought that real estate expertise was an advantage aid, moreover, that to locate a real estate branch office at their business address on North 40th Street, Tampa, Florida would be advantageous. His involvement with real estate licensing started with the issuance of a real estate salesman's license from the Florida Regal Estate Commission in 1971. After that time he decided to qualify for a real estate broker's license before the Florida State Real Estate Commission, and selected Lester T. Vaughan as his apprenticing broker on the basis of a suggestion made by Lester Vaughan, his coworker. For the record, Lester Vaughan is the son of Lester T. Vaughan. Hue indicated that he spoke to other realtors about the apprenticeship, in addition to conversations with Lester T. Vaughan. Two of these persons, Pearl Elliston and Clay Cordington were asked about their interpretation of the form which is Petitioner's Exhibit "E", relating to the numbers of real estate sales and attendance at closings of real estate sales. The Respondent stated that Mr. Cordington felt that the Respondent's experience with selling "on your own lot homes" was sufficient experience to be counted in responding to the form which is Petitioner's Exhibit "E". The witness felt that the reason for this response was because of the familiarity of Mr. Cordington with the work the Respondent was doing, in that the Respondent had sold Mr. Cordington two houses. The Respondent stated that Mrs. Elliston did not give him a definite answer on his inquiry. Furthermore the witness Indicated that he called the Florida Real Estate Commission office, particularly the licensing department, about what the blanks meant on the form which is Petitioner's Exhibit "E" and the blanks Involved with numbers of real estate sales, closings attended, and hours of instruction, and ethics and office operations etc. The witness stated that he spoke with some lady in the department that didn't seem to know what to do about that particular form. Upon the undersigned's examination of the witness on the question of whether or not he referred this matter to the superior of the lady who answered his inquiry, the witness responded that he did not. By way of elaboration on the forms, the Respondent testified that he looked at the Land Book in order to comply with the matters set forth in the forms. The witness seemed to place emphasis on the fact that when he was provided with Petitioner's Exhibit "D", he was told that this was the only necessary form to be completed as part of the requirement for becoming a licensed real estate broker in the State of Florida, for that reason he seemed somewhat baffled by the form which is Petitioner's Exhibit "E". The witness went into some detail to explain how he arrived at the figures on the form which is Petitioner's Exhibit "E". Put concisely, the witness testified that the basis for the figures 56 and 24 upon Petitioner's Exhibit "E" were arrived at by examining "on your lot home sales" made while employed by Hallmark Leisure Homes and closings that he attended in connection with those sales. The figure 100 hours was arrived at by estimates in discussions with Lester T. Vaughan and lecture type course attendance. Bray stated that the figures on that form, Petitioner's Exhibit "E", had been discussed with Lester T. Vaughan, Ramer and Weisiger, another official at Hallmark Leisure Homes. There are other matters which constituted Involvement with real estate sales, but none of these listings were ever consummated through a real estate sale. Moreover, these figures involving listings for Hallmark Leisure Homes and Listings by the Respondent privately were not reflected in figures on Petitioner's Exhibit "E". The Respondent seemed to, under questioning of whether the sales reflected in Petitioner's Exhibit "E" were real estate sales, be convinced at the time of hearing that the sales were not real estate sales per se, although at the time he was making the representations on Petitioner's Exhibit "E" he did not seem as convinced of that fact. Nevertheless, because of the real estate related nature of the work done for Hallmark Leisure Homes, and because in many respects the witness felt that his function was more comprehensive than that of a real estate broker, he felt that the experience with Hallmark Leisure Homes was work which was a fulfillment of the requirement for apprenticeship. Finally, the witness indicated that at the time he filled out the various forms for the Real Estate Commission that he had no intent to defraud or mislead by offering the statistics that he had set forth. Testimony was offered by one Clifford Opp, Jr., Esquire, who has known the Respondent since he was 14 years old, to the extent of being in business with the Respondent, in a restaurant venture which was unsuccessful. He further stated that he, did not feel that the Respondent would provide false information to the Real Estate Commission. Although the witness had been in a confidential relationship with Hallmark Leisure Homes, as their attorney, and therefore unable to divulge any confidences; nevertheless, stated that he didn't recall any report of the company about the Respondent's conduct. In summary, the witness felt that the Respondent was trustworthy. Wilbur J. Wells was called on behalf of the Respondent. Mr. Wells had been a coworker at Hallmark Leisure Homes, in addition to being in the same fraternity in college with the Respondent and in the restaurant business with the Respondent. Mr. Wells is now a realtor associate and has a real estate salesman's license issued by the Florida Real Estate Commission. He says that the Respondent's character in terms of truth and veracity is outstanding and that the witness did not believe that the Respondent would lie to the Real Estate Commission. Ruby Williamson, the present employer of the Respondent was called. Ruby Williamson is a real estate broker, and she has known the Respondent for 6 or 7 years, and feels that the Respondent has an excellant reputation and would not lie to the Real Estate Commission. Assuming the application of the cited statutes in the complaint, from the testimony set forth in the hearing it would appear that the Respondent did not intend to defraud, misrepresent, conceal, act under false pretenses, deal dishonestly or trick, unlawfully scheme or device, in violation of Section 425.25(1)(a), Florida Statutes, nor did the applicant intend to defraud, misrepresent, or conceal in violation of ss.425.25(2), Florida Statutes. Moreover, there has been insufficient showing that the Respondent lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character as required by ss.425.17, Florida Statutes. The facts show that the Respondent sought advise from practicing real estate brokers in Florida and the Florida Real Estate Commission before filling out Petitioner's Exhibit "E", and these facts are unrefuted. He acted upon that information about the exhibit in good faith. Considering the testimony of the relationship of the Respondent to Lester Tony Vaughan, his apprenticing broker, the Respondent was legitimately receiving counsel and acting in the employ of Lester Tony Vaughan, notwithstanding, the fact that the pursuit failed to consummate any real estate sales. The facts also Indicate that the Respondent received adequate supervision from Lester Tony Vaughan, because Florida Statutes, Chapter 475 and its rules and regulations do not require full time supervision or employment in qualifying for a real estate broker's license in Florida. The six or seven visits and conferences between Lester Tony Vaughan and the Respondent were sufficient compliance for a man in the Respondent's position considering the relationship of the sales activity he was performing for Hallmark Leisure Homes to the sale of real estate proper. Finally, certain evidential items were offered in behalf of the Respondent. The first item was the letter dated January 3, 1974, written by R. J. Ramer, President of Hallmark Leisure Homes, Inc., addressed to the Florida Real Estate Commission. This letter has been received as a Joint Exhibit of the parties upon joint stipulation of the parties and has been marked as Joint Exhibit "1". A second document was offered by the Respondent in the form of a letter addressed to the Florida Construction Industry Licensing Beard on the subject of Lester Vaughn's application for license. This letter was written by R. J. Ramer, President, Hallmark Leisure Homes, Inc. This particular correspondence was not admitted far reasons set forth in the section entitled CONCLUSIONS OF LAW.
Recommendation Based upon the foregoing, it is recommended that the Respondent, Claude Talmadge Bray, be released from the charges brought under Progress Docket #2658, Hillsborough County, and that the Respondent go forth without penalty against his registration as a real estate broker in the State of Florida and that his certificate as broker-salesman remain in full force and effect. DONE and ENTERED this 2nd day of January, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire (For the Commission) Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David Luther Woodward, Esquire Rose and Woodward, Chartered 1211 The Madison Building Tampa, Florida 33602
Findings Of Fact Respondent Gladys A. Gibbons is licensed as a real estate broker by the Florida Real Estate Commission under license number 0031192 and has been so licensed at all times material to this case. During such time she was employed as the broker for Gregoire-Gibbons, Inc. Respondent Dorothy M. Comolli is licensed as a real estate salesman under license number 00336387 issued by the Florida Real Estate Commission and has been so licensed at all times material to this case. During the period in question here she was employed by Gregoire- Gibbons, Inc. and was supervised by Respondent Gladys A. Gibbons. On March 3, 1981 Ms. Dorothy Hawks listed her residential property located at 2349 Third Avenue North, St. Petersburg, Florida, for sale with Mr. Gerald O'Conner, a real estate salesman employed by Humpe Roney, Inc., in St. Petersburg, Florida. On July 1, 1981 Respondent Dorothy Comolli called Mr. O'Conner to tell him that she had a contract on Ms. Hawks' property. The offer which Ms. Comolli presented on behalf of Ms. Hortense Willoughby was an option to purchase with a lease. When the offer was presented to Ms. Hawks she demurred about the option and counteroffered with a lease and a contract for sale which provided for closing within one year. On a document entitled Real Estate Purchase and Sale Agreement dated July 1, 1981 the parties negotiated the terms of the property sale. Their handwritten amendments to the form contract were later incorporated into a real estate purchase and sale agreement dated July 14, 1981 which was executed by Ms. Willoughby but never signed by Ms. Hawks. With respect to the rental portion of the transaction the first contract was a receipt for deposit and agreement to lease dated July 19, 1981 presented through Ms. Comolli with a promissory note in the amount of $500 attached as a security deposit for the last month's rent on Ms. Hawks' house. The text of the receipt recited that the lease was for a period of one year with monthly payments of $500 a month to begin on August 15, 1981. It further provided for $200 "security" plus $500 for the last month's rent in a three-month promissory note. Both the note and the receipt for deposit and agreement to lease were presented by Ms. Comolli to Carol Denker at Humpe Roney, Inc. Ms. Denker had taken over Ms. Hawks' account due to the vacation of Mr. O'Connor. In addition to these documents Ms. Comolli gave Ms. Denker $200 as an earnest money deposit on the sale of the house. Ms. Denker in turn gave Ms. Comolli a receipt for the $200 but later returned the $200 to Ms. Comolli as it is customary for the agent of the purchaser to hold the deposit. The form of the promissory note and the receipt for deposit and agreement to lease were not acceptable to Ms. Denker. She had been instructed that promissory notes witnessed by a realtor were a bad business practice and were not acceptable to Humpe Roney, Inc. Ms. Denker therefore gave Ms. Comolli a promissory note form acceptable to Humpe Roney for Ms. Willoughby to execute. Ms. Denker then attempted to contact Ms. Hawks to let her know about the promissory note but was not able to reach her. On July 21, 1981 Humpe Roney prepared on its forms, a contract for sale of real estate and a receipt for deposit and contract for lease. The record is not clear why Humpe Roney wanted the contracts rewritten. After they had been redrawn Ms. Comolli picked them up, had Ms. Willoughby sign them, and returned them to Humpe Roney for Ms. Hawks' signature. These two documents which were executed by Ms. Willoughby and Ms. Hawks finally constituted the agreement between the two parties. Neither document recites that the last month's rent would be paid by Ms. Willoughby in the form of a promissory note. The record is not clear why the final contracts as redrawn by Humpe Roney did not reflect the $500 promissory note. The deletion of any mention of the note was not at the request of either Respondent and does not appear to have been done intentionally by Humpe Roney. At no time was Ms. Hawks aware that a promissory note would be provided instead of cash for the last month's rent. Ms. Willoughby moved into the house on August 4, 1981. She stayed there for the months of August, September and October and part of November when she defaulted on the promissory note which was due on November 15, 1981. Upon her default she was evicted from the house. She is still in default on the promissory note and has no funds with which to pay it. When Ms. Hawks made a demand upon Gregoire-Gibbons for the $200 earnest money deposit plus the $500 last month's rent she received $200 and the $500 note. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint filed against Gladys A. Gibbons and Dorothy M. Comolli. DONE and RECOMMENDED this 9th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 9th day of February, 1984.
