Findings Of Fact George A. Heyen is a duly registered real estate salesman with the Florida Real Estate Commission, and was so registered and has been so registered continuously since October 1, 1972, as evidenced by Petitioner's Exhibit number 1. While serving in the capacity as a real estate salesman, the Respondent entered into a listing agreement with one Thomas S. Bowers and Brenda L. Bowers, his wife. This agreement was drawn on December 11, 1973 and is Petitioner's Exhibit number 4. On February 6, 1974, a purchase and sell agreement was drawn up by the Respondent and entered into between Maria A. Hindes and the Bowers. This purchase and sell agreement is Petitioner's Exhibit number 3. This contract of February 6, 1974 was submitted to Molton, Allen and Williams, Mortgage Brokers, 5111 66th Street, St. Petersburg, Florida. The contract, as drawn, was rejected as being unacceptable for mortgage financing, because it failed, to contain the mandatory FHA clause. When the Respondent discovered that the February 6, 1974 contract had been rejected, a second contract of February 8, 1974 was prepared. A copy of this contract is Petitioner's Exhibit number 5. The form of the contract, drawn on February 8, 1974, was one provided by Molton, Allen and Williams. When, the Respondent received that form he prepared it and forged the signature of Mr. and Mrs. Bowers. The explanation for forging the signatures as stated in the course of the hearing, was to the effect that it was a matter of expediency. The expediency referred to the fact that the parties were anxious to have a closing and to have the transaction completed, particularly the sellers, Mr. and Mrs. Bowers. Therefore, in the name of expediency the signatures were forged. Testimony was also given that pointed out the Bowers were very hard to contact in and around the month of February, 1974, and some testimony was given to the effect that the Bowers made frequent trips to Ohio, but it was not clear whether these trips would have been made in the first part of February, 1974. The Bowers discovered that their name had been forged when they went to a closing on April 11, 1974. They refused to close the loan at that time. On April 24, 1974, a new sales contract was followed by a closing which was held on April 26, 1974 and a copy of the closing statement is Petitioner's Exhibit number 6. The Respondent has received no fees or commissions for his services in the transaction and there have been no further complaints about the transaction. Prior to this incident, the Respondent, George A. Heyen, was not shown to have had any disciplinary involvement with the Florida Real Estate Commission and has demonstrated that he has been a trustworthy individual in his business dealings as a real estate salesman.
Recommendation It is recommended that the registration of the registrant, George A. Heyen, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of April, 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: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George A. Heyen c/o Gregoire-Gibbons, Inc. 6439 Central Avenue St. Petersburg, Florida 33710
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, Gary R. Berkson, is a licensed real estate salesman, holding license No. 034697. From September 27, 1980, until May of 1983, the Respondent as a salesman working as an independent contractor for Act Now Real Estate, Inc., a corporate broker whose active qualifying brokers and officers were Robert F. Picheny and Thelma R. Sarkas. Robert F. Picheny was subpoenaed and requested to bring with him the records of Act Now Real Estate, Inc., showing the disbursement of commissions to the Respondent. These records did not contain any entries relating to rental transactions involving the persons named in the complaint as having paid commissions to the Respondent. The only lease offered and received in evidence was between Samuel Schnur, as lessor, and lessees named Davis and Johnston. Samuel Schnur, presented as one of the Petitioner's witnesses, did not pay a rental commission to the Respondent in connection with this lease. Another lease transaction where the Respondent was alleged to have received rental commissions was between Sami Elmasri, as landlord, and Donald Bauerle, as tenant. Sami Elmasri, presented as another of the Petitioner's witnesses, testified that he paid a $300 commission, but that this was not paid to the Respondent. This commission was paid to another salesman, Wendy Corman. The final witness for the Petitioner, except for the Respondent, was Wendy Corman. She showed Mr. Elmasri's property to persons wishing to rent through a lead given by the Respondent. She was paid a $300 commission by Mr. Elmasri. The Respondent did not receive any of this commission. The Petitioner's final witness was the Respondent, who testified that he never received a commission for rental property. The only money he received in connection with rental properties was a management fee he received on some properties owned by Richard Jacobson. This fee was in payment for management services consisting of arranging for repairs to the properties such as painting it, repairs to the plumbing and the garage door, and being available to tenants with problems in the absence of the owner. These management fees continued even after the Respondent left Act Now Real Estate, Inc., until Mr. Jacobson assumed the management duties himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed against the Respondent, Gary R. Berkson, be DISMISSED. This Recommended Order entered this 13th day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 13th day of June, 1984.
Findings Of Fact On November 29, 1983 Petitioner filed with Respondent an application for licensure as a real estate salesman. By letter dated February 28, 1984 Respondent denied Petitioner's application as follows: The reason for the Commission's action is based on your answer to Questions 6, 7, 14 and 15 of the licensing application and/or your criminal record and disciplinary actions, and on your having unlawfully acted as a real estate salesman or real estate broker in the State of Florida. Specifically, your denial is based upon your May 1975 arrests and convictions for five counts of the sale of unregistered securities five counts of fraudulent sale of securities, five counts of grand larceny, petty larceny, ten counts of conspiracy to commit a felony, and also on disciplinary actions involving your Insurance License, Mortgage Brokers License and Securities License. In 1970 or 1971 Petitioner started Summit Investments, a conpany engaged in selling contracts for deed for developers to investors at a discount. The State of Florida determined that these contracts were mortgages and not securities, and, therefore, all persons selling them must be licensed mortgage brokers. Petitioner accordingly obtained a mortgage broker's license. In 1972 eight mortgage brokers formed S.E.I., Inc., and Petitioner became the president. Everyone selling contracts for deed for that company was licensed under the Mortgage Brokerage Act. Clinton E. Taylor, an investigator for the State of Florida Department of Banking and Finance, Division of Securities, as part of his regular job duties, frequented Petitioner's offices at S.E.I., Inc. to check the advertising and sales pitches being used by the persons selling what the State had classified as mortgages. Taylor monitored Petitioner's operation at Summit Investments and at S.E.I., Inc. for a number of years without receiving any consumer complaint and without finding any basis for any enforcement action against Petitioner. In 1974, a recession year, five persons to whom S.E.I. had made sales did not receive their interest income and therefore filed complaints with the State of Florida Department of Banking and Finance. In May 1975 state criminal charges were filed against Petitioner as president of S.E.I., against the developer, and against the selling broker, basically alleging that what had previously been classified as mortgages were in fact unregistered securities. After trial, Petitioner was adjudicated guilty of five counts of sale of unregistered securities; five counts of fraudulent sale of securities; five counts of petty larceny; five counts of conspiracy to commit a felony, to-wit: fraudulent sale of securities; and five counts of conspiracy to commit a misdemeanor, to-wit: petty larceny. Petitioner was initially sentenced to a total of ten years of incarceration, $20,000.00 in fines, and 15 years of probation. In 1976 Petitioner plead no contest to a federal charge of mail fraud in Tampa, Florida in order to obtain a sentence which would run concurrent with that arising out of his state conviction. In 1977 Petitioner plead no contest to a charge in Palm Beach County of selling unregistered securities. Both of these charges were related to the same incidents forming the basis for the 1975 criminal charges. Based upon the conviction of Petitioner in the 1975 state case, his mortgage broker's license, his securities license, and his insurance license were revoked. By the time of the final hearing in this cause Petitioner had served 16 months in the State prison system and had been released; restitution had been made to the five people who caused the criminal charges to be filed from payment by Petitioner of the fines assessed against him; Petitioner had finished serving his amended probation period; and Petitioner's civil rights had been restored by the State of Florida. From September 1980 to November 1983 Petitioner earned his livelihood selling businesses. Be applied for a real estate license in both 1982 and 1983 and was denied both times. Petitioner seeks a real estate license in order that he can return to selling businesses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to successful completion of the licensure examination. RECOMMENDED and ORDERED this 6th day of November, 1984 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1984. COPIES FURNISHED: Mr. David R. Edstrom 5748 Northeast 16th Avenue Fort Lauderdale, Florida 33334 Lawrence S. Gendzier, Esquire Department of Professional Regulation 400 West Robinson Street Suite 212 Orlando, Florida 32801
Findings Of Fact Respondent Ray T. Kline is and at all times material to the charges in this action was a registered real estate broker holding License No. 0048253. Respondent Vincent Tomasino is and at all times material to the charges in this action was a licensed real estate salesman holding License No. 0353215. Respondent Krishnalall D. Persaud is and all times material to the charges in this action was a licensed real estate salesman holding License No. 0336161. At the time of the hearing the Respondent Persaud had obtained his broker's license. In December, 1980, the Respondents Tomasino and Persaud were employed as salesmen, selling time-share units at Vistana Development. During December they discussed and agreed upon a business plan for marketing time-share units. As a part of that plan-they agreed to form Intercontinental Marketing Services, Ltd. (hereafter referred to as IMS) a corporation which would be used to market time-share condominiums and other real estate. Subsequent to that time they did in fact incorporate on May 4, 1981, as a Delaware corporation and formed another Delaware corporation to handle travel and tour business. The incorporators of these corporations were the Respondents Tomasino and Persaud who were also officers and directors of both corporations. Sometime between December, 1980 and March, 1981 Persuad introduced Respondent Ray Kline to Respondent Tomasino. They discussed Ray Kline becoming the registered broker for IMS. After some discussion, Ray Kline did in fact agree to become the broker for IMS. On January 19, 1981, Respondent Tomasino and Respondent Persaud opened a general corporate account for IMS at the Atlantic Bank of Orlando. (See Petitioner's Exhibit 6) The account required two signatures for all checks and the two persons allowed to sign were Respondents Tomasino and Persaud. This account was not set up as an escrow or trust account and was not used a's an escrow or trust account during the operating life of IMS. At no time was the Respondent Ray T. Kline a signator on this account. In early 1931 the Respondents Persaud and Tomasino began negotiating with the Highlands County Title and Guaranty Land Company (hereafter referred to as Highlands County Title) to become its representative in the Orlando area. Highlands County Title is a subsidiary of Sun-N-Lake Estates which is the owner and developer of Lakeside Villas located near Sebring, Florida. A verbal agreement was reached between Highlands County Title and IMS whereby IMS would market time-share units in Lakeside Villas in the Orlando area. This verbal agreement was later reduced to writing. (See Petitioner's Exhibit 11) On or about March 3, 1981, IMS and Respondent Ray T. Kline entered into a written agreement whereby Ray T. Kline agreed to act as the real estate broker for IMS. (See Respondent Kline's Exhibit 3) Highlands County Title and Sun-N- Lake Estates required a broker be designated for all its sales representatives. Under the written agreement Mr. Kline agreed generally to act as broker and to not interfere with any of the marketing projects of IMS. IMS was to provide Respondent Kline with an office, secretarial assistance, a phone, and real estate leads acquired through IMS advertising. The contract required Kline to maintain an escrow account for his real estate transactions and to pay twenty- five percent of all commissions earned by him on real estate transactions other than his on personal business. There was no requirement in the contract that Ray T. Kline open or maintain an escrow account for real estate transactions handled by IMS. On March 3, 1981, Ray T. Kline changed his broker address to 1121 South Cimarron Boulevard, Winter Park, Florida, the offices of IMS. At the time Mr. Kline moved his license to the IMS office he did not register or reflect a trade name under which he was doing business as a broker. On March 5, 1981, Vincent Tomasino and Krishnalall Persaud placed their salesman licenses with Ray T. Kline as an individual broker employer at 1121 Cimarron Boulevard, Winter Park, Florida. IMS was not registered or qualified with the Board of Real Estate or the Department of Professional Regulation by the Respondents. On March 16, 1981, a written agreement was entered into between IMS and Highlands County Title. The agreement showed Ray T. Kline as broker for IMS and was signed by Vincent Tomasino as director of IMS and Ray T. Kline, Jr. as broker. On March 18, 1981, a supplement to that written agreement was entered into between Ray T. Kline, IMS, and Highlands County Title whereby Highlands County Title agreed to pay advance draws against commissions to IMS. This supplement to the original agreement was signed by Ray T. Kline on behalf of IMS. Mr. Dennis Grage had met and become acquainted with Vincent Tomasino when Mr. Tomasino was selling time-share units at Vistana. In early March, 1981, Vincent Tomasino contacted Mr. Grage to see if he was interested in purchasing time-share units in Lakeside Villas. Shortly after the initial contact Mr. Tomasino took Mr. Grage's wife, Barbara, together with Richard and Benita Drapeau (Mrs. Grage's sister and her husband) on a tour of Lakeside Villas. After the tour Mr. Tomasino and Mr. Grage met regarding the purchase of a unit in Lakeside Villas. Mr. Grage explained to Mr. Tomasino that he could not afford the $600 down payment. Mr. Tomasino then told Mr. Grage that if he would get the Drapeaus and the Brownings to buy a time-share unit in Lakeside Villas, he would pay $500 of the down-payment on a time-share unit for Mr. Grage. After the tour Mr. and Mrs. Drapeau decided to buy four time-share units in Lakeside Villas. However, after returning to their home in New Hampshire they decided to buy only two time- share units and so informed Vincent Tomasino. The Drapeaus then sent two deposit checks of $400 each dated March 30, 1981 and April 11, 1981 to Vincent Tomasino. These checks were made payable to Vincent Tomasino pursuant to his instructions. These two checks were deposits on two time-share units at Lakeside Villas. The March 30, 1981 check was deposited in the IMS corporate account on April 7, 1981. The April 11, 1981 check was endorsed by Vincent Tomasino and forwarded to Sun-N-Lake Estates where it was deposited in the Sun-N-Lake Estates attorney's escrow account. The $400 from the March 30, 1981 deposit check was never forwarded by IMS or Vincent Tomasino to Sun-N-Lake Estates. Pursuant to the agreement with Vincent Tomasino regarding the down payment on a time-share unit, Dennis Grage forwarded a $100 deposit to Mr. Tomasino. The balance of the $600 deposit called for in the contract was to be paid by Vincent Tomasino. Mr. Grage also contacted John and Helen Browning. In March, 1981, Dennis Grage contacted John and Helen Browning at their home in Michigan. He discussed with them the possibility of purchasing a time-share unit at Lakeside Villas. During this conversation the Brownings authorized Mr. Grage to place a $100 deposit on two units for them. By letter dated March 9, 1981, Vincent Tomasino acknowledged on behalf of IMS the receipt of the deposit placed by Dennis Grage for the Brownings. The Brownings then asked for more information regarding the time- share units and inquired of Mr. Tomasino as to whom the deposit check should be made payable. They were advised by Mr. Tomasino to make the check payable to IMS. On March 20, 1981, the Brownings sent a $1,000 deposit check to Vincent Tomasino payable to IMS. By letter dated March 23, 1981, Vincent Tomasino acknowledged receipt of the $1,000 deposit and also forwarded two time-share purchase agreements to the Brownings for their signatures. Each of the contracts called for a $500 deposit. On April 7, 1981, the Brownings executed the two purchase agreements and returned them to Vincent Tomasino. The Brownings' $1,000 deposit check was deposited into the IMS corporate account at the Atlantic Bank on or about March 24, 1981. On May 18, 1981, Vincent Tomasino wrote a check to Sun-N-Lake Estates in the amount of $1,000 for the Brownings' deposit. The check was received and deposited for collection by Sun-N-Lake Estates but before it could be paid Vincent Tomasino placed a stop-payment order on the check. The stop-payment order was placed because there were insufficient funds in the account to cover the $1,000 check. The $1,000 deposit was never forwarded to Sun-N-Lake Estates by IMS for Vincent Tomasino. In May, 1981, Vincent Tomasino removed Krishnalall Persuad as a signator on the IMS account at the Atlantic Bank. This occurred primarily as a result of a disagreement over a $1,200 deposit made by Mr. Persaud to an account other than the IMS account. Also during May, 1981, Vincent Tomasino changed the locks on the doors at the IMS offices at 1121 South Cimarron Boulevard, Winter Park, Florida, and did not give Mr. Persaud a key. Prior to May, 1981, the checking account at Atlantic Bank had been controlled by both Mr. Persaud and Mr. Tomasino. From January to May, 1981, checks written on the IMS account were signed and approved by both Tomasino and Persaud. Respondent Persaud knew or reasonably should have known that money being received from purchasers was being deposited in the corporate account. After May, 1981, only Vincent Tomasino signed checks on the IMS account. In June, 1981, the relationship between Mr. Persuad and Mr. Tomasino terminated. Also in June, 1981, the IMS account became overdrawn and in August, 1981, the Atlantic Bank closed the account. Between January and June, 1981, Vincent Tomasino received approximately $7,000 in draws from IMS and Mr. Persaud received approximately $4,900 in draws from IMS. Ray T. Kline received no funds from IMS. When interviewed by a DPR investigator Mr. Persaud denied having received any funds from IMS during its operation. Between January and June, 1981, Vincent Tomasino was the person in charge of the IMS finances. Ray Kline had no control over and did not participate in the finances of IMS. The bookkeeping was done by the office manager and the checkbook was kept by Mr. Tomasino. During this period salesmen were hired and supervised by Tomasino and Persaud, but were not supervised by Respondent Kline. IMS also purchased a tour bus during this period which was used by Mr. Persaud to take potential buyers on tours of Lakeside Villas. Once these tours began, Mr. Persaud was in the office less than he had been the first couple of months of operation. Once there were no more funds in the corporate account the Respondent Tomasino essentially walked away from the corporation and paid only a few small debts. By letter dated June 23, 1981, Vincent Tomasino notified Sun-N-Lake Estates that IMS would no longer sell time- share units at Lakeside Villas. In November, 1981, the relationship between IMS and Sun-N-Lake Estates was formally terminated. Prior to termination, IMS had received advances of $9,000 in excess of commissions due and earned and no reimbursement of those excess funds has been made to Sun-N-Lake Estates. In approximately September, 1981, the Drapeaus as a result of financial problems sent a letter to Sun-N-Lake Estates requesting a refund of their $800 deposit. Sun-N-Lake Estates refunded the $400 which was in escrow and informed the Drapeaus that Sun-N-Lake Estates had never received the other $400 deposit. Robert Wright of Sun-N-Lake Estates was contacted by the Drapeaus. He then contacted Vincent Tomasino who told him that he would speak with Ray Kline and Krishnalall Persaud about the Drapeau problem. Mr. Wright was never contacted again by Mr. Tomasino. Dennis Grage, after learning that the Drapeau's $400 deposit had not been placed in escrow also contacted Vincent Tomasino. He demanded the return of the $400 deposit and Mr. Tomasino stated that someone had run off with the money and that he was trying to get it back. After several unsuccessful contacts with Mr. Tomasino, Mr. Grage contacted Ray Kline. Mr. Kline said he was checking on the problem, but at the time of the formal hearing the Drapeau deposit had not been refunded. Dennis Grage also informed the Brownings of the problems the Drapeaus were encountering. The Brownings then contacted Sun-N-Lake Estates and spoke with Robert Wright who informed them that Sun-N-Lake Estates had never received their $1,000 deposit. Mr. Tomasino informed him that IMS was bankrupt and had no money and that it wasn't his problem. Mr. Browning then contacted Ray Kline who denied any personal responsibility and stated that Tomasino had taken the money and was responsible for its return. Mr. Browning then made demand upon Krishnalall Persaud for the $1,000 deposit and Mr. Persaud denied being an officer or director of IMS and also stated that he had no responsibility to the Brownings. During August and September, 1981, Robert Wright repeatedly discussed the Drapeau and Browning deposits with Respondents Persaud and Kline. On each occasion they denied any responsibility for those deposits. Until contacted by the Brownings and Drapeaus, Ray Kline and Krishnalall Persaud had no knowledge of the deposits of these people and how they were being received. Ray Kline, after being contacted was aware that these deposits were funds that should have been placed in escrow upon receipt by IMS and Tomasino. Neither Tomasino, Kline, nor Persaud attempted to provide an accounting to the Drapeaus or Brownings and the Respondents made no attempt to return their deposits. For at least a two week period in the Spring of 1981, Ray Kline also opened and operated a branch office for IMS at a condominium development. At no time was this branch office registered as required by statute. From the beginning of the relationship between Ray Kline and IMS, by agreement, Kline's involvement was to be very limited. Kline never opened an escrow account for IMS and did not supervise the sales personnel. Ray Kline had little or no involvement in the day-to-day operation of IMS. At no time was IMS registered with the Florida Real Estate Commission or the Department of Professional Regulation. At some point in time in the Spring of 1981, the Respondents discussed opening an escrow account but decided to not open such an account until they had earned commissions. From January through May, 1981, Respondents Tomasino and Persuad hired and supervised salesmen and controlled the operations of IMS.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the license of Vincent Tomasino be revoked and that an administrative fine of five hundred dollars ($500) be imposed upon him; That the license of Ray T. Kline be suspended for a period of two (2) years and an administrative fine of one thousand dollars ($1,000) be imposed upon him; and That the license of Krishnalall Persaud be suspended for a period of two (2) years and an administrative fine of five hundred dollars ($500) be imposed upon him. It is further RECOMMENDED that upon a showing by the Respondents to the Commission prior to entry of the final order that restitution has been made to Mr. and Mrs. Drapeau and Mr. and Mrs. Browning, the fines of Respondents Tomasino, Kline and Persaud be reduced to two hundred fifty dollars ($250), five hundred dollars ($500), and two hundred fifty dollars ($250), respectively. DONE and ENTERED this 22nd day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 22nd day of September, 1983.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
The Issue Whether petitioner's application for registration as a real estate salesman, pursuant to Chapter 475, Florida Statutes, should be approved.
Findings Of Fact Petitioner field applications for registration as a real estate salesman with respondent on October 10, 1977. Question 16 of the application reads as follows: 16. Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so? The petitioner answered "no" to Question 16. On December 8, 1977, respondent Florida Real Estate Commission issued an order denying the application based on its determination that the applicant had operated, attempted to operate or held himself out as a real estate broker or salesman within the one year period prior to filing his application. Petitioner thereafter requested a hearing in the matter. (Exhibit 1) Petitioner is the president of Marketing Institute Corporation of the Americas, Ltd. of San Jose, Costa Rica. (MICA) The firm operates as a real estate sales organization under the laws of Costa Rica, and is owned by Insco S.A., a Costa Rican holding company. (Testmony of McIntire, Figueredo) In 1975, petitioner became associated with William W. Landa, president of Costa del Sol, a condominium project in Miami, Florida. His function was to produce sales of condominium units as a result of sales efforts in Latin America. Part of the informal arrangement was the petitioner occupied a rental villa at the condominium project. His success in producing sales was limited and, as a result, the association was terminated sometime in 1976. In a letter to Lands, dated January 21, 1977, petitioner sought an accounting of expenses incurred in the operation and stated that he had produced three purchasers for which commissions were payable at the rate of "10% for foreign sales and 5% on domestic sales." Although no explanation of the terms "foreign sales" and "domestic sales" was presented, Landa testified at the hearing that petitioner did not sell in Florida for Costa del Sol. (Testimony of Landa, Figueredo, Exhibits 2-3) On December 1. 1976, the receiver in bankruptcy of the estates of Grandlich Development Corporation and Fisher Development Corporation, Fred Stanton Smith, president of the Keyes Company, Miami, Florida, Wrote petitioner and offered to pay his firm a 10% commission on "all sales closed by you of all Commodore Club Condominiums sold to your prospects." The commission was to be payable to MICA through its agent in the United States, Transcontinental Properties, Inc. of Miami, Florida, a corporate broker, The Commodore Club is a condominium project located at Key Biscayn, Florida. Hemisphere Equity Investors, Inc. was the registered broker for the sales of the condominiums and kept sales agents on the premises. Smith instructed Hemisphere to cooperate with foreign brokers in the sales of the properties. Petitioner proceeded under this arrangement to obtain and refer prospective foreign purchasers to Transcontinental who arranged to show the condominium units to the clients and consummate any resulting sales. Although petitioner had desk space in the Transcontinental office from September, 1976, to August, 1977, he was not supposed to show properties to clients or be involve in any real estate sales functions. In September, 1976, the president of Transcontinental placed a telephone call to respondent's legal office at Winter Park, Florida and ascertained that commissions could be paid to a foreign broker. However, he was informed by the Commission representative that it was a "gray" area and, although the foreign representative could serve as an interpreter for foreign clients during transactions in the United States, he could not perform any of the sales functions himself in Florida. Sales were made in this manner and commission checks were paid to petitioner's firm during the period January - September, 1977. (Testimony of Smith, McIntire, Figueredo, Exhibits 4, 5, 12, 13, 15) On July 1, 1976, Alexander Sandru purchased a condominium at the Commordore Club through the Keyes Company as broker. He was a friend of petitioner's from Caracas, Venezuela, and the latter had recommended his purchase of the condominium. However, petitioner was not in the United States at the time Sandru viewed the property and purchased it. Petitioner claimed a commission on the sale and it was paid to his firm through Transcontinental's predecessor company. A dispute arose over the payment of the commission because a saleswoman of Hemisphere Equity Investors, Inc. had shown the property to Sandru and assumed that she would earn the commission on any resulting sale. (Testimony of Lundberg, Nelson, Murragy, Exhibits 8-11) On several occasions in 1976 and 1977, petitioner accompanied Latin American individuals to the Commodore Club where a representative of Hemisphere showed them various condominium units. During this time, petitioner would inquire concerning maintenance charges and the like and transmit such information to the individuals in Spanish. Several of these persons were connected with petitioner's foreign firm and were not prospective purchasers. (Testimony of Lundberg, Figueredo, Exhibit 7) On January 30, 1977, Insco S.A. entered into a purchase agreement for a Commodore Club condominium unit. Petitioner signed the agreement on behalf of his firm MICA as broker for the transaction. However, the deal was never consummated. (Testimony of Figeredo, Exhibit 14)
Recommendation That Petitioner's application for registration as a real estate salesman under Chapter 475, Florida Statutes, be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1978. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Richard J. Mandell, Esquire 748 Seybold Building Miami, Florida 33132
Findings Of Fact At all times material hereto, Respondent Philip Marzo was a real estate broker licensed under the laws of the State of Florida, holding license No. 0217167; and Respondent All Cities Realty, Inc., was a real estate brokerage corporation licensed under the laws of the State of Florida, holding license No. 0217166. At all times material hereto, Respondent Marzo was the qualifying broker for Respondent All Cities Realty, Inc. On May 9, 1981, Gladstone Keith Russell entered into a Service Agreement with All Cities Realty, Inc. Pursuant to the terms of that Agreement, Russell paid $75 in cash to Respondent All Cities Realty, Inc., as an advance rental information fee in exchange for which All Cities Realty, Inc., agreed to provide Russell with listings of available rentals. On or about May 13, 1981, Respondents provided to Russell one listing, which listing was not suitable to Russell. No other listing information was ever provided by Respondents to Russell. Russell obtained his own rental within thirty days from the date of the Service Agreement. This rental was not obtained pursuant to any information supplied to him by Respondents. Within thirty days of the date that All Cities Realty, Inc., contracted to perform real estate services for Russell, Russell telephoned Respondent All Cities Realty, Inc., to demand a return of his $75 deposit. The salesman who took Russell's advance fee was no longer employed at All Cities Realty, Inc., and Russell spoke with Respondent Marzo. Although Russell demanded a refund of his money, Respondent Marzo did not make a refund to Russell. When Russell spoke with Marzo on the telephone, Marzo, instead of returning Russell's money, used delaying tactics and attempts to keep from making the refund. Since his telephone calls proved unsuccessful, Russell returned to the All Cities Realty, Inc., office to obtain a refund from Marzo. Upon arriving at the office, Russell found that All Cities Realty, Inc., had gone out of business, and he was unable to locate Respondent Marzo. Russell has never received a refund of his $75 advance fee paid to the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Default be entered against Respondents, Philip Marzo and All Cities Realty, Inc., and that a final order be entered finding Respondents, Philip Marzo and All Cities Realty, Inc., guilty of the violations charged in the Administrative Complaints and revoking their real estate licenses. RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1982. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Philip Marzo 2920 Missionwood Avenue, West Miramar, Florida 33025 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
