The Issue Whether Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b) Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to account and deliver funds, in violation of Section 475.25(1)(d)1., Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to maintain trust funds in a real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.005(1)(k), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Leslie L. White is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0095441 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker with an address of Les White Realty, 6313 Wynglow Lane, Orlando, Florida, 32818-1311. Respondent's license is currently under suspension for failing to pay a fine and failure to complete certain education courses. On or about September 28, 1993, Respondent negotiated a contract between himself, doing business as Les White Enterprises, as seller, and Charles and Greta White, as buyers, (no apparent relationship to Respondent) to purchase Lot Number 18, Whisper Ridge subdivision in Orange County, Florida and build a house thereon for the total sum of $79,000. Respondent prepared the contract, using the standard Contract for Sale and Purchase form approved by the Florida Association of Realtors and The Florida Bar. Les White Enterprises was listed as the "Seller" and Charles White and Greta White, his wife, were listed as "Buyers". The Buyers agreed to purchase Lot 18 and to have a house constructed on the site by the Seller. The Buyers agreed to seek "new financing at prevailing interest rates" in the amount of $75,550; put down a $2,000 deposit and pay an additional $1,450 at closing. The contract called for the deposit to be held in escrow by Les White Realty/Builders. The $2,000 deposit was paid in cash by the Buyers and given to Respondent. The Respondent did not place the $2,000 deposit in an escrow account contrary to the express terms of the contract. Respondent did not acknowledge receipt of the deposit in his capacity as a broker. At the time the contract was signed, the Buyers knew that the Respondent did not own or have title to Lot 18, and that the purchase price of the lot exceed the amount of the deposit. The Buyers consented to the Respondent using the funds to acquire the property. Respondent was unable to purchase Lot 18, and sought the Buyers' permission to purchase Lot 2 instead and construct a house on it in accordance with the parties' prior agreement. The Buyers reluctantly agreed. On February 18, 1994, Buyers gave Respondent a cashier's check for $1,200 for the purpose of clearing the land and beginning construction of a home for them on Lot 2. The funds were not placed in escrow. The Respondent utilized the funds received from the Buyers and acquired title to Lot 2 in his name alone on or about February 25, 1994. The Respondent cleared Lot 2 in preparation for construction, obtained building plans and applied for building permits in connection with building a house on said lot. Shortly thereafter, Respondent notified the Buyers that the private investors, who approved their loan application, had discontinued financing of the Respondent's construction loan and he was unable to construct the house. The transaction failed to close and the Buyers demanded that Respondent return the earnest money deposit. Respondent was unable to return to return the $3,200 earnest money deposit to the Buyers. Respondent filed for personal reorganization under Chapter 13 of the United States Bankruptcy Code. Throughout the course of this transaction, Buyers dealt with Respondent in his capacity as a broker/builder. In 1994 and 1995, the Florida Real Estate Commission found Respondent guilty of violating the provisions of Section 475.25(1)(b) and (1)(d)1., Florida Statutes on three occasions. Following the third offense, Respondent's license was suspended for six months and it is presently under suspension for failure to pay his administrative fines and complete other requirements of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1., and (k), Florida Statutes; and guilty of having been found guilty for a second time (or more) of misconduct that warrants suspension, in violation of subsection 475.25.(1)(o), Florida Statutes; it is further RECOMMENDED that Respondent's licensed be revoked. DONE and ENTERED this 4th day of October, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Gillis and Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
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 Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Defendant, Ray Sans, is currently registered as a real estate broker in the State of Florida, holding Certificate No. 0077190. On April 2, 1973, Defendant submitted a Requests for Registration Certificate as a registered real estate salesman in the employ of Southeast Land Corporation. The Defendant's application was also signed by Darien Kendall, a registered real estate broker in the State of Florida, who also served as Vice President of Southeast Land Corporation. The application form recites that the applicant was to be "exclusively connected" with Southeast Land Corporation, which indicated its willingness to carefully supervise the applicant in his activities as a registered real estate salesman. On April 3, 1973, Defendant, Ray Sans, and Darien Kendall, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, pursuant to Rule 21V-2.24, Florida Administrative Code, which was received by the Florida Real Estate Commission on April 9, 1973. On May 21, 1973, Defendant, Ray Sans, submitted a second Request for Registration Certificate as a registered real estate salesman in the employ of Store Realty Corporation. This request was also signed by Robert Pepper, President of Store Realty Corporation, and a registered Florida real estate broker. The application form indicates that Defendant, Ray Sans, was to be "exclusively connected" as a real estate salesman with Store Realty Corporation. On May 21, 1973, Defendant, Ray Sans, and Robert Pepper, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, indicating that Defendant, Ray Sans, was to be employed as a real estate salesman with Store Realty Corporation, pursuant to the provisions of 21V-2.24, Florida Administrative Code. This declaration was received by the Florida Real Estate Commission on May 24, 1973. On July 27, 1973, a Notice of Termination of Salesman's Employment was signed by a representative of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, effective July 27, 1973, and that his services while in the employ of that company had been satisfactory. Defendant, Ray Sans, returned to the employ of Southeast Land Corporation in September of 1973, and remained in the employ of that company as a real estate salesman until February, 1975. Defendant testified that he completed a Declaration of Employment for Apprenticeship Purposes after his return to Southeast Land Corporation in September of 1973, but that he did not know whether his employer, or his supervising broker, Sam Stier, ever mailed the declaration to the Commission for filing. Thereafter, Defendant filed an application for registration as a real estate broker with the Commission on January 16, 1975, and, after passing the required examination, received his license as a registered real estate broker on March 17, 1975. The application submitted by Defendant to the Commission contained the following question in Paragraph 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?" Defendant answered this question in the affirmative, and in addition, gave the name and address of Darien Kendall, a registered real estate broker in the State of Florida, and Vice President of Southeast Land Corporation, as the broker with whom he had served his apprenticeship. There is nothing in the record to indicate that the Commission ever contacted Ms. Kendall to verify whether Defendant had, in fact, served such apprenticeship. Shortly after receiving his real estate broker's license on March 17, 1975, Defendant left the employ of Southeast Land Corporation. Both Southeast Land Corporation and Store Realty Corporation have since gone out of business.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate broker in the State of Florida having been issued license number 0072124. On or about September 6, 1986, the Respondent as seller/owner and Kenneth and Alicia Pelczar as purchasers entered into an agreement for the sale and purchase of Lot 10, Bowden Acres Subdivision, located in Duval County, Florida for the total purchase price of $79,000. Upon execution of the agreement, the purchasers deposited the sum of $1,500.00 with the Respondent which was to be part of the down payment, provided the sale of the property was finalized. The check from the Pelczars was cashed by the Respondent on October 24, 1986. The agreement provided remedies to both the seller and the purchasers if either party defaulted. Under the agreement no commission was to be paid on the sale of the property. The Pelczars were aware that the Respondent owned the property and that they were dealing with her as the owner, not as a real estate broker. The deposit was not paid to Respondent as a real estate broker to be held in trust but was paid to Respondent as part of a down payment to be applied to the total purchase price, if the transaction closed, and subject to being retained as liquidated damages if the purchasers defaulted under the agreement. The Respondent suffered financial difficulties, and on November 19, 1986, the bank foreclosed on several parcels of property owned by the Respondent, including the property Respondent had under contract with the Pelczars. However, the bank gave Respondent written authority to go forward with the sale to the Pelczars. The reason for the Pelczars' refusal to close the transaction on November 14, 1986, is not clear but they refused and demanded the return of the deposit. Respondent retained the deposit under the default clause of the agreement, and has refused to return any portion.
Recommendation Based upon the Findings of Fact, Conclusions of Law the evidence in the record and the demeanor and candor of the witnesses, it is RECOMMENDED that the Commission enter a Final Order DISMISSING the Amended Administrative Complaint filed herein. Respectfully submitted and entered this 15th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 15th day of Decemeber, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2646 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. Adopted in Finding of Fact 6 but clarified. The fact that the closing was to be on November 14, 1986, is adopted in Finding of Fact 6. The balance of paragraph 5 is rejected as not being supported by substantial competent evidence in the record. The fact that the bank authorized the sale of the house after foreclosure is adopted in Finding of Fact 6. The balance of paragraph 7 is rejected as not supported by substantial competent evidence in the record with the exception of the fact that Respondent has not returned the deposit. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. 5.-7. Adopted in Finding of Fact 6. 8.-9. Rejected since it is a statement of Respondent's and Kenneth Pelczar's testimony rather than a finding of fact. Adopted in Finding of Fact 3. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Larry L. Bryan, Esquire 1420 North Third Street Jacksonville, Florida 32250 Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all pertinent times, both respondents held real estate broker's licenses. The corporate license is No. 0222663 and the individual license is No. 0159888. The individual respondent has been the only owner of the corporate respondent and the only broker the corporation has ever employed. At one time Angela Lewis worked for Broker Jim, Inc. as a licensed real estate salesperson. On October 6, 1981, it was she who signed, on the broker's behalf, a listing agreement with Laverne Lockhart and Faith Willis, the sisters who jointly owned the house at 1535 NW 116th Street in Miami, Florida (the house) . Petitioner's Exhibit No. 2. Kenneth G. Wilson, who wanted to buy the house, had $5000 available. The house was encumbered with a mortgage in the approximate amount of $33,000 and the sisters eventually agreed to take $44,000 for the property. On the form contract signed by both owners and Mr. Wilson, and dated November 25, 1981, under the heading "Terms and conditions of Sale:", the following was typewritten: 1,000 as mentioned above. Purchaser agrees to make an additional deposit in the amount $4,000 before closing. Purchaser agrees to assume an existing first mortgage in the Approx. amount $33,000, payab[l]e $340.00 P.I.T.I at 10.5 percent per annum in accordance with the terms and conditions set forth therein. Purchaser to obtain a P.M. 2nd mort[g]age in the amount of $6,000 at 18 percent per annum payable Approx. $152.37 for a period of 5 yrs. Balance of purchase price to be paid in cash or cashier check at time of closing. Property being purchased in its present as is condition. Petitioner's Exhibit No. 3. Elsewhere on the printed form appears the following: When this contract is executed by the purchaser and the seller and the sale is not closed due to any default or failure on the part of the purchaser, the seller, at his option, may seek to enforce this contract, or else the seller may direct the holder of the deposit to pay the broker his brokerage fee not to exceed one-half of the deposit and to pay the balance of the deposit to the seller as consideration for execution of this agreement, and the holder of the deposit shall be held harmless by all parties for disbursement in accordance with this agreement. Petitioner's Exhibit No. 3. Ms. Lewis prepared the form contract. Mr. Muhammad, as he is now known, read it over and approved it. In retrospect, he believes this was a mistake, because the contract fails clearly to reflect the parties' understanding that the offer was contingent on Mr. Wilson's ability to borrow $6,000, to be secured by a second mortgage on the house. A deposit ticket dated November 25, 1981, accompanied Mr. Wilson's check for $1000 when respondents deposited it to their escrow account. The bank credited the escrow account on December 1, 1981. Neither Mr. Wilson's efforts to obtain a loan, nor those of respondents on his behalf, availed, and word reached Ms. Lockhart that the transaction was doomed for want of sufficient purchase money. Over the phone, Ms. Lockhart told Helen Jackson, respondents' secretary, that she wanted a "refund" of the deposit. A lawyer Ms. Lockhart consulted communicated a similar demand to respondent Muhammad personally. Respondents gave Ms. Lockhart no money and no accounting. The money stayed in respondents' escrow account until it was used on Mr. Wilson's behalf in the purchase of another house respondents had listed.
Findings Of Fact The alleged acts here complained of occurred during the months of May through June, 1974. Certifications received during the course of this hearing revealed that Defendant, Robert Saltzman, broker, and Randolph E. Kout, salesman, are registrants with the Commission. (See Florida Real Estate Commission's Exhibits 3 and 4.) Evidence reveals further that Southern Realty Resale, Inc., is a corporate real estate broker (presently delinquent) and was such, during times material to the allegations filed herein. (See Florida Real Estate Commission Exhibit number 5.) Ronald Myers, the Commission's Investigator, conducted an investigation of the Defendant's operation, based on a complaint received during March, 1975, from David W. Peterson of Wisconsin. During the investigation, Myers spoke to Saltzman who advised that his employee complement consisted of salesmen Randolph E. Kout and Ronald P. Morgan. Saltzman, according to Myers, operated the business during March through June of 1974 for the purpose of selling local properties to out of state owners. Myers testified that Saltzman admitted to having received advance fees for which he intended to list the properties with National Multiple Listing Services of Fort Lauderdale, Florida. Saltzman advised Myers that the monies received were spent on office expenses, sales, commissions, etc. During approximately June of 1974, Southern Realty Resale, Inc. went bankrupt. To carry on this business, the Defendant corporation sent out cover letters to prospective property owners in an effort to obtain an advance fee (See, for example, Florida Real Estate Commission Exhibit number 1). In that letter, the representation was made that the corporation had been in business for approximately fifteen years when, in actuality, the business had only been operational for approximately three months. Harris Small, Jr., Vice President of National Multiple Listings of Fort Lauderdale, testified that the listing service is one that prints and distributes listings for real estate brokers on a nationwide basis. Mr. Small checked National Multiple Listings' file and found no evidence that Southern Realty Resale, Inc., had utilized the listing service to disseminate listings. According to Small, the fee averages $15.00 for a local listing in one county, to thousands of dollars to list a property nationwide. Myers was recalled and testified that Saltzman advised during his investigation that he advised prospective listers that he would research the property to determine if any defects exist and that if none existed, the property would be put up for sale on the National Multiple Listing Services. The Commission introduced copies of the corporation's banking account which revealed that the firm's account was open by an initial deposit of $1,000.00 and that thereafter several deposits and checks were received during the course of this operation, however, it suffices to say that they are not at all instructional or enlightening to resolve any of the issues posed herein. Subsequent to June of 1974, there was no evidence introduced of any brokerage activity having been conducted by the Defendants.
Recommendation 1. That the administrative complaint filed herein be dismissed as it relates to Defendants Randolph E. Kout, Robert C Saltzman and Southern Realty Resale, Inc. DONE and ENTERED this 4th day of March, 1977 in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Buskins, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Hylan H. Kout, Esquire 420 Lincoln Road Miami Beach, Florida 33139 Gus Efthimiou, Jr., Esquire Alfred I. Dupont Building Suite 207 Miami, Florida 33131
