Findings Of Fact The Respondent, William R. Weigel, Jr., is a licensed real estate broker, holding license number 0094158. He is not presently active in real estate sales, but specializes in land appraisal. In 1955, the Respondent and his wife acquired a parcel of land in Jacksonville, Duval County, Florida, fronting 158 feet on Ortega Farms Boulevard, and running approximately 1,040 feet to McGirts Creek, a navigable waterway. In 1956, the Respondent and his wife had this property cleared and a canal excavated along the southerly boundary, approximately 30 feet in width. The dredged material was deposited on the remaining land and additional fill brought in, so that the entire parcel of land was level, clear, and approximately 3 to 4 feet above the water level of McGirts Creek. The Respondent and his wife resided in an existing dwelling on this parcel for two years. In 1958, they moved 25 miles away to Middleburg, Florida. Neither of them had visited or been on the subject parcel of land in the past 24 years, and they were unaware of the character or physical condition of the property at the time of the sale which is the subject of this proceeding. After the Respondent and his wife acquired this property, they divided the land into eight separate parcels, each of which was sold off over the years except for the waterfront parcel fronting on McGirts Creek known as Parcel 8B, which they considered the prime lot. This lot was retained so that the Respondent and his wife could offer it to one of their children as a building site. In 1978, with their children grown, and the Respondent and his wife living in Middleburg, they listed parcel 8B for sale with Harris Real Estate & Associates, Inc. The listing was obtained by T. J. Slora, an associate in this real estate office, who represented the Respondent and his wife throughout the remaining transactions. Neither the Respondent nor his wife furnished the description of the property as contained in the listing agreement, namely, "Beautiful waterfront lot on Ortega River. 158 feet on Ortega River plus 140 feet on canal. Many shade trees, fantastic building site". This description was the language of T. J. Slora of Harris Real Estate and Associates, Inc. The purchaser, Mr. Robert Johnson, never saw the listing agreement and did not rely upon the description contained therein. The Respondent's wife had the only direct contact with the listing agent, T. J. Slora. The Respondent made no representations or communications to the listing agent regarding either the property, or its character, or suitability as a building site. His only activity with respect to the listing agreement was the act of signing it. After obtaining the listing, Harris Real Estate & Associates, Inc., undertook to sell the property. The advertising sign located on it was seen by Mr. Johnson, who contacted Carol L. Jones, another sales associate with Harris Real Estate & Associates, Inc. Mr. Johnson looked at the property with her, and submitted a written offer through her. After dealing back and forth on price through the sales associates of Harris Realty, a purchase and sale agreement for Parcel 8B was agreed upon, and executed by Mr. Johnson on April 2, 1978. T. J. Slora of the Harris office mailed the contract to the Respondent and his wife, who signed it on April 4, 1978. Throughout these negotiations, the purchaser, Mr. Johnson, dealt through Carol Jones of Harris Realty, and had no direct contact with the Respondent, William R. Weigel, Jr., who was dealing through T. J. Slora of the Harris office. The purchaser, Mr. Johnson, never met or talked with the Respondent until the closing on May 5, 1978. The Respondent had made no representations of any kind regarding the subject property, either orally or in writing. At the closing, the purchaser, Mr. Johnson, and the Respondent discussed the subject of building generally, but no representations were made by the Respondent regarding the land as a building site. By the time of the closing, the purchaser had walked over the entire parcel of land and was familiar with its nature, character, and elevation. At the closing, the Respondent cautioned the purchaser that if he made any improvements on this property which fronted on navigable waters, he would need a permit from the Army Corps of Engineers. Prior to the time the purchaser began to truck fill dirt onto the property, he was informed by the owner of the adjoining parcel that bringing fill dirt in without a permit could cause him problems. The purchaser responded that he had connections and could handle any such problems. The purchaser did not obtain a permit from the Army Corps of Engineers or the Department of Environmental Regulation. Nevertheless, he began to bring fill dirt and other material onto Parcel 8B and ultimately trucked in over 600 loads of fill material, and spread it around the 164 foot by 158 foot parcel with a tractor and a bulldozer. Upon discovery of this fill being trucked in by the purchaser, the Corps of Engineers issued a Cease and Desist Order under the Clean Water Act of 1977. Subsequently, the Department of Environmental Regulation also issued a Cease and Desist Order. Although the Respondent was aware that a Corps of Engineers permit was required for bulkheading or building of docks, he had no knowledge of the applicability of the wetlands provisions of the Clean Water Act of 1977 until after the cease and desist orders were entered. Thus, the Respondent's actual knowledge of applicable governmental regulations was not superior to or any better than that of the purchaser, who himself knew that the property fronted on navigable waters.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against the Respondent, William R. Weigel, be dismissed. THIS RECOMMENDED ORDER entered on this 24 day of February, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 24 day of February, 1982. COPIES FURNISHED: W. Douglas Moody, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Edward A. White, Esquire 902 Barnett Bank Building Jacksonville, Florida 32202
Findings Of Fact At all times here relevant David Y. Coverston, Respondent, was registered as a real estate broker with the Florida Real Estate Commission and, on his registration renewal request dated February 28, 1980, he listed an office at 1231 Kapp Drive, Clearwater, Florida, and one at Gainesville, Florida. The Clearwater office was managed by Eugene Bailey, a licensed real estate salesman, and Respondent visited the office at infrequent intervals. Michael Sedwick held an inactive real estate salesman's license and in 1980 was engaged in real estate development. He worked out of the Respondent's office at 1231 Kapp Drive, Clearwater, Florida, and knew Respondent. Specifically, Sedwick was developing 12 waterfront townhouse condominiums. On February 4, 1980, Sedwick opened an escrow account in the Bank of Clearwater under the name of David Coverston. Checks were printed with the heading David Coverston, Registered Real Estate Broker, Escrow Account. Sedwick was the authorized signatory on this account. During the month of February 1980 deposits of $42,600 were placed in this account and checks totaling $41,719.08 were written against this account, leaving a balance of $880.92. During December 1980 a deposit of $4,000 was made in this account and a check for $4,000 was written against this account. On December 20, 1980, a check for $500 drawn against this account was written payable to David Coverston. This check was endorsed by Coverston and paid by payor bank on March 20, 1981, leaving a balance of $330.92 in the account (Exhibit 2) On April 8, 1981, Indian Harbor Condominiums No. 2, by its developer, Michael Sedwick, entered into a contract to sell 11 of the 12 units in this condominium to Bieder Equity Corporation and a $100,000 earnest money deposit was given by Bieder payable to David Coverston Escrow Account (Exhibit 3) and was deposited in this account. Due to defects in the title this contract failed to close and by letter dated March 22, 1982, Bieder Equity Corporation demanded return of the deposit, less certain authorized expenditures, from Sedwick (Exhibit 7). A copy of that letter was sent to Respondent. Sedwick failed to refund the deposit, and by letter dated April 6, 1982 (Exhibit 8), Bieder Equity Corporation demanded return of its deposit from Respondent. The $100,000 check was deposited in the David Coverston Escrow Account on April 10, 1981 (Exhibit 2). During the next few months small deposits were made to this escrow account and checks were written against this account. The final deposit of $200 in this account on October 2, 1981, brought the balance in the account to $91.33. It has remained at this balance since that time. Although Respondent did not open this escrow account or have signature authority on this account, he was aware the account existed. He was also aware that the contract for the sale of the 11 condominiums was being run through the Clearwater office and he anticipated the office would receive a commission on this transaction. The checkbook for this account was maintained by the real estate office secretary who prepared checks for Sedwick's signature. Neither Sedwick nor Respondent have delivered the monies due Bieber Equity Corporation.
The Issue The issues presented in This case are whether the Respondents committed the acts alleged in the Administrative Complaint and whether such acts constitute a violation of the statutes. Petitioner submitted post hearing findings of fact in the form of a proposed recommended order To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Frank R. Jansen, is a broker salesman holding license number 0317199. The Respondent, Lillian LaCrampe, now Soave, is a real estate salesperson holding license number 0137930. In June 1980, Jansen held an individual broker's license in the State of Florida. In late summer of that year, he entered into an agreement with Flora Harwood, a licensed broker in the State of Florida and owner of Select I Realty. Under this agreement, Jansen and Harwood would form a corporation and participate in a brokerage company under the name Select I Realty, in which Jansen would open and operate a branch office of Select I Realty. The exact details of the corporation and the division of shares were not worked out between the parties; however, Harwood undertook to have a corporation formed the name Jansen and Harwood, Inc., and two attempts were; made to register Jansen as a broker with Jansen and Harwood, Inc., doing business as Select I Realty. These applications were rejected by the Florida Real Estate Commission for various reasons, to include the requirement that a corporation operate only in the corporate name and the failure of the applicants to submit corporate papers. The incorporation and application to the Commission were handled by Flora Harwood's attorney. The last denial of the application was on October 22, 1980. During the period the applications were being filed with the Commission, Harwood became disenchanted with the idea of the corporation because of her perception that Jansen was not cooperating with her. Therefore, after the second application was denied, Harwood did not take action to timely file a third application. Although Jansen was aware of the denial of the application, the evidence does not show that he was aware that Harwood delayed the third application. By the end of 1980, Jansen and Harwood had both independently abrogated their agreement, and shortly thereafter Jansen left the business totally. Until he left, Jansen continued to actively manage the branch office of Select I Realty, which he had established and organized and from which he conducted his real estate business as a broker for Jansen and Harwood, Inc. The policy of the Florida Real Estate Commission with regard to applications is that the applicant may operate if a license application is not returned. If the application is returned for correction and corrected and resubmitted timely, the applicant may continue to operate. If the application is not returned in a timely fashion, the applicant may not work. The failure of Jansen and Harwood to eventually incorporate, followed by the severance of their business relationship, intensified the conflict between them, out of which several of the allegations of the Administrative Complaint arose. On September 5, 1980, the Respondent LaCrampe contracted to buy for herself Lot 3 of Ozona Shores from Preston and Grace King. On January 5, 1981, LaCrampe closed the transaction with the Kings. At that closing, a check for $825 in commissions to Select I Realty was disbursed by the closing agent to the Respondent Jansen. Jansen deposited said check to his personal account. Flora Harwood asserted a claim to a share of the commission on the purchase of the property by LaCrampe. When Harwood discovered that this sale had occurred, she checked with the closing agent and found that a commission check had been paid to Jansen. She further discovered that Jansen had deposited this check to his personal account, and because the check was made out to Select I Realty Harwood had the bank take action to collect the $825 and pay it to her, which the bank did. Harwood's claim to the $825 was based upon an office policy applicable to employees which required that commissions on real estate purchases for investment purposes by employees of Select I Realty be shared with the office. However, this contract closed on January 5, 1981, after the relationship between Jansen and LaCrampe had been severed with Harwood. The competing claims between Jansen and Harwood to the $825 in commission are part of the severance of the business relationship between two persons operating as co-brokers. Testimony was received that in the operation of the branch office Jansen had authority to receive checks, deposit checks, and write checks. On or about December 10, 1980, Jansen participated in the rental of a condominium by Eugene Donahue from Glen and Mary Mitchell. The rental contract incorporated an option to purchase. Said rental contract required that Donahue pay $400 per month, $50 of which was a maintenance fee. Jansen received the first check from Donahue in the amount of $400, negotiated the check, and received a bank check in the amount of $350 payable to Glenn Mitchell and $50 in cash. It is asserted in the Administrative Complaint that Jansen received the $50 in cash as a commission payment to which he was not entitled. However, Respondent's Exhibit numbered 4 reflects that Glenn and Mary Mitchell here in arrears on their maintenance payment in the amount of $49.75, and the policy of Coachman Creek Condominium Association was not to grant any approval of lease or sales contracts until all maintenance payments were up to date. Respondent's Exhibit numbered 4 shows that approval of the subject rental contract was granted when Jansen produced the late payment. Several allegations of the Administrative Complaint relate to real estate transactions in which the Respondents Jansen and LaCrampe were involved with Heinz Lehman and allege fraud and misrepresentation arising from failure of Jansen to identify LaCrampe as his mother to Lehman. The first occasion on which Lehman met the Respondents was when Lehman visited a store in a strip shopping center which Jansen was selling as a broker. Lehman testified that Jansen identified LaCrampe at that time as a real estate associate and his "girl Friday." Lehman's testimony revealed that he knew LaCrampe was a real estate salesperson and an associate of Jansen but did not know that LaCrampe was Jansen's mother until after their series of transactions had occurred. Lehman did not buy the strip store but later purchased a condominium through Jansen and then sold it through Jansen after fixing it up. In November 1980, Lehman contracted to purchase Lot 3 of Ozona Shores (see paragraph 8 above) from LaCrampe. On January 5, 1981, after LaCrampe had purchased the property, she in turn sold the property to Lehman on the same day. In November 1980, prior to entering into the contract for the purchase of Lot 3, Lehman had visited Ozona Shores and had looked at several pieces of property. Thereafter, Jansen presented him with the opportunity to purchase Lot The evidence is clear that Jansen never identified Lot 3 on the, ground or by plat to Lehman. Lehman purchased the property without a survey and without reference to any plat. After he had purchased the property, Lehman found that Lot 3 was not tie lot which he though it was. At a later date, after being unable to finance a house on this property for speculative purposes, Lehman let the lot, 90, back to LaCrampe. On or about January 22, 1981, Jansen visited Florence Smith, who was interested in selling a house which she owned at 1550 Laura Street, Clearwater, Florida. Without obtaining a listing contract, Jansen thereafter advised Smith that he had a potential purchaser. On January 29, 1981, Smith contracted to sell her house to LaCrampe for nothing down and a $37,000 mortgage payable to Smith. Thereafter, Smith determined that she would prefer a balloon note, and LaCrampe agreed to a balloon note if the price were reduced to $36,000, to which Smith agreed. This slightly reduced the monthly payments to Smith. On February 12, 1981, LaCrampe contracted to sell this property to Lehman for $5,000 down, assumption of the second mortgage to Smith, and payment of a $1,400 commission by Lehman to Jansen. LaCrampe obtained modification of her contract with Smith to permit LaCrampe to assign her contract to purchase. In this transaction, Jansen did not identify LaCrampe as his mother or as a real estate salesperson and his associate. Jansen did not explain to Lehman that the money which Lehman paid down was to be paid to LaCrampe. On or about March 10, 1982, Leo Huddleston, an investigator for the Department of Professional Regulation, visited Jansen's office at the address at which Jansen was registered. Huddleston did not find the required sign at the office identifying it as that of Frank Jansen, a real estate broker. At that time, Jansen had registered as broker for Suncoast Investments and Realty, Inc., and was renting office space with telephone-answering and secretarial services in an office suite complex. Although the building directory listed the suite as the office of Jansen as a real estate broker, the office suite did not have Jansen's real estate brokerage sign. When this matter was brought to Jansen's attention, an appropriate sign was provided. In November 1980, the Respondent LaCrampe was licensed as a real estate salesperson with Jansen and Harwood, Inc.
Recommendation Having Found the Respondent, Frank R. Jansen, in technical violation of Rule 2IV-10.24, Florida Administrative Code, an thereby Section 475.25(1)(e), Florida Statutes, it is recommended that Jansen receive a cautionary letter. Having found the Respondents, Frank R. Jansen and Lillian LaCrampe, now Soave, guilty of one violation each of Section 475.25(1)(b), Florida Statutes, it is recommended that their licenses be suspended for a period of one year. DONE and RECOMMENDED this 16th day of August, 1983, in Tallahassee Leon County, Florida. STEPHEN F. DEAN, 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 16th day of August, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Frank R. Jansen 108 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Ms. Lillian LaCrampe Soave 114 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION Petitioner, vs. CASE NO. 0013099 0017680 FRANK R. JANSEN and 0021257 LILLIAN LaCRAMPE DOAH NO. 82-2891 Respondent. /
Findings Of Fact At all times relevant hereto James E. Black and Jim Black and Associates, Inc. were registered as real estate brokers as alleged. Various parties, as alleged in the Administrative Complaint, entered into contracts with Lawrence Edwin Construction (Edwin) to have houses built on the buyers lots. All of these individuals (and couples) saw ads in a Tampa paper listing a price for a house to be built on buyer's lot with floor plan shown in the ad with a price below prevailing prices. These people contacted Edwin and entered into contracts negotiated by H. H. Howard, who was hired by the construction company to sell these houses to be built. James E. Black was general manager at Edwin, and apparently made all final decisions affecting the company, although he claimed no ownership in the company. No evidence was presented to rebut Black's testimony that he owned no stock in Edwin. Floyd B. Long held a general contractor's license and associated himself with Black and the construction company as the qualifying contractor for the company. Permits for these houses started was obtained under the authority of Long's license. These contracts entered into were standard form contracts between the buyer and Lawrence Edwin Construction Company, the builder, whereby the latter agreed to build a house pursuant to a given plan on the buyer's lot for a specified sum. The contract provided for the buyer to make a 10% down payment when the contract was executed, 20% of the total price on the pouring of the slab, 40% of total price when the roof is dried in, 25% of total price when kitchen cabinets are installed, and the balance upon substantial completion and acceptance. All payments were payable to Lawrence Edwin Construction Company and generally delivered to Howard who gave them to Black for deposit. No separate bank accounts were established for each house to be built, and no funds received were placed in escrow. Bruce Carter entered into a contract with Edwin to build a house on Carter's lot for $39,000 (Exhibit 1). Carter made a $500 down payment and a $2500 payment to cover items not on standard plan, arranged financing, and one draw in the amount of $1942.75 was also paid. At this time, the house was at the drying in stage and considerably later in progress than Carter had been led to expect. About this time, Carter became dissatisfied, Black was unhappy with the draw made payable to Carter and the construction company, both parties breached the contract, and no further work was done by the builder. Carter was unsuccessful in getting any refund of payments made to the builder. Robert Bowes entered into a contract with Edwin on September 24, 1984, to have a house constructed on his lot at Crystal River to use as a vacation home. The contract was negotiated by Howard, who was given a $200 deposit by Bowes. A few days later, Bowes made a down payment of $1974 expecting construction to start in January 1985. Although Bowes testified he was told by Howard that his down payment would be refunded if the house wasn't built, the standard contract makes no such provision. Construction on this house was never started, and Bowes' request for a refund was not honored. Roberta Puttie contracted to have Edwin construct a house on her lot, made $200 down payment when the contract was signed on August 24, 1984, and, after being told by Howard the construction would be expedited if additional money was paid, gave Howard an additional $3300 on October 3, 1984. When construction still did not commence, Mrs. Puttie went to the Edwin office where she met Black and told him she wanted construction started or her money back. Black visited Puttie's home adjacent to the site for the construction, had fill dirt brought in, and the crew came out to prepare the foundation, but they had the wrong blue print, and Mrs. Puttie called the county building inspector and had the work stopped before all the footing was dug. By this time, word was spreading that Edwin was not completing homes, and Mrs. Puttie attempted to get her payments returned, but was unsuccessful. No further work was done under this contract. Peter Rodriguez entered into a contract with Edwin to build a house on his lot, made a $500 down payment and arranged for financing, but work was never commenced under this contract. Inquiry by Rodriguez revealed that no building permit was ever pulled for this house. Ultimately, Rodriguez obtained a general contractor's license and built the house under his license. He released Edwin under the contract, and the company released its subcontractors so they could be used by Rodriguez. Wilburt and Juanita Hall entered into a contract with Edwin to build a house on their lot in November 1984 for $57,500. They paid $500 down and made subsequent payments of $34,120 before the builder stopped work. The Halls called in another contractor to complete the house at a total cost of some $15,000 more than the original contract price. John and Eleanor Crews entered into a contract on November 27, 1984, with Edwin to build two houses on their lots for $74,200 and a second contract on December 6, 1984, to build one house on their lot for $37,500. Construction was commenced on both houses, and the Crews paid a total of $7500 to the builder before Mr. Crews fired the builder because of mistakes in preparing the footing on one lot, and because the foundation was not true on the lot for the second house. No demand for refund was made by the Crews, but they offered to pay Edwin for work performed. Dr. Fernandez and wife entered into a contract with Edwin on October 31, 1984 (Exhibit 12) to construct a house on their lot. At the time the contract was signed, Fernandez paid $3610, and, pursuant to the contract provisions, made additional payments of $7220 and $14,440 in January 1985. By supplemental agreement dated June 28, 1985 (Exhibit 13), the builder agreed to complete construction and provide the buyer with an affidavit that all subcontractors had been paid. After nothing further was done on the construction, Fernandez fired the builder and had the house completed by another contractor. Ernest F. Street entered into a contract with Edwin on May 27, 1984 (Exhibit 15) to construct a house on the buyer's lot for $41,000. Street made a down payment of $4012.50 and two additional draws when due under the contract. Construction on the house was abandoned by the builder before completion. Phyllis Lopeman entered into a contract with Edwin on May 30, 1984, to build a house on her lot. When the house was more than one half completed, she became dissatisfied with the construction, released the builder from responsibility to complete the house and hired the builder's subcontractors to complete the project. Henrietta Hagenschneider entered into a contract with Edwin to build a house on her lot and paid 10% down when the contract was signed. No permit was ever pulled for this construction, and work was never started. A letter to Black from her attorney (Exhibit 18) demanding return of her down payment was never answered. Floyd B. Long, the qualifying contractor for Edwin is an elderly builder who lives in Williston, Florida, and apparently did not supervise any of the construction for which permits were pulled under the authority of Long's license. After receiving numerous complaints from buyers, Hillsborough County revoked Long's general contractor's license. At all times relevant to the charges herein considered, Respondents made no real estate sales and maintained no escrow account. Although Howard sold some 50 houses in 1984, these contracts were not timely completed by the builder, and Howard stopped selling. This resulted in a cash flow problem and exacerbated the inability to complete houses for which contracts had been executed. About the time Long's license was revoked, Black was arrested by the local police authorities, and all work by Lawrence Edwin Construction Company stopped. Charges preferred against Black were subsequently dismissed.
The Issue Whether the Respondent's real estate salesman license in Florida should be disciplined based upon the charge that his real estate broker's license in another state was revoked in April 1988.
Findings Of Fact At all times material to these proceedings, the Respondent Janikula was a licensed real estate salesman in Florida, having been issued license number 0488507 through the Division of Real Estate. Evidence presented at hearing revealed that the license was active on or before March 6, 1987. The Department is the agency charged with the responsibility to prosecute violations of Chapter 475, Florida Statutes, by real estate salesmen licensed in Florida. The Minnesota Department of Commerce is the state agency charged with the responsibility to prosecute violations of Chapter 82, Minnesota Statutes, by real estate brokers licensed in Minnesota. On April 21, 1988, a final order of license revocation was entered by the Commissioner of Commerce, Department of Commerce, State of Minnesota, against the real estate broker's license of the Respondent Janikula which had previously been issued by that state. The license was revoked as a result of the following: On or about May 13, 1987, Respondent Janikula received $15,000.00 from Mr. Ben Hackman as earnest money in connection with Mr. Hackman's purchase of an apartment building in Minneapolis, Minnesota, which was listed for sale through the Respondent. The Respondent was the real estate broker at the time he received the earnest money, and the funds were trust funds under Minnesota law. When the transaction could not be completed, the Respondent delivered a check to Mr. Hackman for $15,000.00 on a closed checking account. The disciplinary hearing on this matter was held on March 1, 1988. On the date of hearing in Minnesota, the Respondent had not returned the $15,000.00 to Mr. Hackman. The Respondent's broker's license was revoked upon the determination that Respondent failed, within a reasonable time, to account for and remit money coming into his possession as a real estate broker to the person entitled to it. In addition, it was determined that, while licensed as a real estate broker, the Respondent converted trust funds belonging to another person that he obtained in connection with a real estate transaction. In mitigation, the Respondent presented evidence which demonstrated that between April 19, 1988, and July 8, 1988, three checks totalling $15,000.00 plus $1,350.00 in interest were received by Mr. Hackman for restitution purposes. In addition, it was called to the attention of the Hearing Officer that Respondent does not handle trust funds in his capacity as a real estate salesman in Florida.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding Respondent Janikula guilty of the charge filed in Case No. 88-5774. That the Respondent's Florida real estate salesman's license be suspended for a period of one year. DONE and ENTERED this 29th day of August, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of August, 1989. COPIES FURNISHED: Department of Professional Regulation - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Neil F. Garfield, Esquire Neil F. Garfield, P.A. Envirwood Executive Plaza, Suite 200 5950 West Oakland Park Boulevard Lauderhill, Florida 33133 Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 =================================================================
The Issue Whether the Respondent's real estate broker's license should be suspended, revoked, or otherwise disciplined based upon alleged violations of Chapter 475, Florida Statutes.
Findings Of Fact The Respondent, Peter H. Bos, Jr., is a licensed real estate broker in the State of Florida, holding License Nos. BK 0225668 and 0189099. He is the registered broker for Bos Realty Company, Inc., and Sandestin Realty, Inc. Bos Realty, Inc., and Sandestin Realty, Inc., are registered real estate brokerage companies. The Respondent is also the Chairman of the Board and Vice President of Sandestin Corporation, Inc. ("Sandestin") . Sandestin is not a real estate brokerage company and does not engage in any real estate business regulated under Chapter 475, Florida Statutes. Sandestin is a licensed hotelier. In 1987, Sandestin ceased acting as the management company of Sandestin Resort. Sandestin Corporation instead became a company which operated a hotel. In order to obtain rooms for its hotel operation, the corporation entered into leases with various local condominium owners, including Sandestin Resort unit owners. These leases were entered into under a landlord and tenant contract and not a management contract. The landlord and tenant contract did not establish any fiduciary relationship between Sandestin Corporation, Respondent, or the landlord/unit owner. Similarly, the landlord and tenant agreement did not establish any escrow relationship between Sandestin Corporation, Respondent, or the landlord/unit owner. During this time, the leasehold agreement did contain two typographical errors. One error, committed by the law firm who drafted the agreement, placed Sandestin Realty's name over the signature block at the end of the contract. The other error was contained in an exhibit to the contract and listed Sandestin Realty in its title. All of the typographical errors were discovered and corrected by 1988. None of the errors materially effected the understanding of the parties as to who those parties were or the relationship they had. In reality none of the parties involved in the contracts containing the typographical errors noticed either fallacy. Around May 22, 1987, Margaret Irwin purchased a unit from Sandestin Realty Company, Inc. She signed a landlord and tenant agreement dated March 25, 1987, between herself, as landlord, and Sandestin Corporation, Inc., as tenant. Although Ms. Irwin was somewhat confused about the exact relationship between the parties, the contract she signed was plain on its face and unambiguous in its language that the agreement she was entering into was a leasehold agreement with her as a landlord and Sandestin Corporation as a tenant. Ms. Irwin's confusion appeared to result from assumptions that emanated from her own mind. The evidence did not establish that any representation was made either on behalf of or by Respondent that the lease agreement was other than what it purported to be. Moreover, the evidence did not establish that Ms. Irwin's confusion was caused by any actions of Respondent or any of the typographical errors which were in the agreement at the time Ms. Irwin signed it. Up until 1989, Ms. Irwin received all of the lease payments she was entitled to receive under the lease agreement. In 1989, Sandestin Corporation experienced financial difficulties. Beginning in August 1989, Sandestin Corporation, on the advice of its attorneys, did not make the agreed upon lease payments to Ms. Irwin as well as other unit owners from which it had leased units. All of the unit owners's including Ms. Irwin, were made aware of Sandestin Corporation's financial difficulties in a letter dated October, 1989. Ms. Irwin elected to terminate her lease agreement with Sandestin Corporation and demanded the back rant which was owed to her. The back rent remains unpaid to this date. In late 1989, Sandestin Corporation filed for a Chapter 11 bankruptcy. That bankruptcy is ongoing today. The unit owners who elected to continue leasing their units to Sandestin Corporation have begun to receive incremental payments on the back rent owned to them by a special order of the bankruptcy court. Importantly, all of the unit owners, including Ms. Irwin, were treated as landlord/creditors of Sandestin Corporation. The money owed to these unit owners has been treated as property of Sandestin Corporation and therefore part of the bankrupt's estate. The money was not treated as property being held by Sandestin Corporation on behalf of and as fiduciary for these various unit owners. There was absolutely no clear and convincing evidence presented of any fraud, misrepresentation, scheme, trick, or device, or breach of trust on the part of Respondent. The language of the lease agreement is plain on its face and clearly establishes a landlord and tenant contract. The agreement did not establish any fiduciary or escrow relationship. Additionally, Respondent's duties in relation to Sandestin Corporation were not those which involved any real estate duties regulated by Chapter 475, Florida Statutes. Therefore, Respondent is not guilty of violating any of the provisions of 475.25(1)(b), (d), or (k), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, the pleadings and argument of the parties, it is therefore, RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January 1991. DIANE CLEAVINGER 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 30th day of January 1991. APPENDIX The facts contained in paragraphs 2, 3, 4, 5, 6, 12, 13, 14, 15, 24, 26, 26, and 30, of Petitioner's Proposed Findings of Fact are adopted. The facts contained in paragraphs 1, 7, 8, 9, 10, 11, 18, 20, 21, 22, 31, 32, 33, 34, and 35 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 16, 17, 19, and 28, of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraphs 23, 25, 29, and 36 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts in paragraphs 1, 2, 3, and 4 of Respondent's Proposed Findings of Fact are adopted. COPIES FURNISHED: Janine B. Myrick, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 E.C. Kitchen, Esquire Post Office Box 1854 Tallahassee, Florida 32302-1854 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts are found: According to the files and records of the Florida Real Estate Commission, respondent Greene F. Isaacs received his initial salesman license on April 12, 1979 and his initial broker license on April 29, 1980. He is currently a licensed broker holding license number 0308665. By an Order dated June 25, 1980, the Kentucky Real Estate Commission revoked the real estate broker's license of respondent Green F. Isaacs.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 475.25(1)(g), Florida Statutes, and that respondent's real estate broker's license number 0308665 be suspended for a period of one (1) year. Respectfully submitted and entered this 22nd day of July, 1982 in Tallahassee, Florida. DIANE D. TREMOR, 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 July, 1982. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David F. Kern, Esquire 516 Lakeview Road, Villa III Clearwater, Florida 33516 Mr. C. H. Stafford Fred Wilsen, Esquire Executive Director Real Estate Commission Real Estate Commission State Office Building P. O. Box 1900 400 West Robinson Street Orlando, Florida 32801 Orlando, Florida 32801
Findings Of Fact 1. Adopted in Finding of Fact 10. 2-4. Rejected as Conclusions of Law and not Finding of Facts. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as contra to the weight of the evidence in that Hardage, for Respondent Benchmark, arranged the joint venture which culminated in the sale. Rejected as contra to the weight of the evidence. 9-10. Adopted in Finding of Fact 6. Adopted in Findings of Fact 6 and 7. Rejected as contra to the weight of the evidence. Rejected as a Conclusion of Law and not a Finding of Fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the allegations against the Respondent, David W. Stuart, and the allegations of a violation of Section 475.25(1)(b), Florida Statutes, against Respondent, Benchmark Brokers of Destin, Inc., be dismissed, but that the license of Benchmark Brokers of Destin, Inc., be suspended for a period of 90 days for the violation of Section 475.25(1)(d), Florida Statutes. RECOMMENDED this 3rd day of March, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1986. COPIES FURNISHED: Arthur Shell, Jr., Esquire Division of Real Estate Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 David L. Selty, Esquirer Executive Park, Building H, Suite 3 11 Racetrack Road, NE Ft. Walton Beach, Florida 32548 Harold Huff, Exec. Director Division of Real Estate Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all Proposed Findings Of Fact submitted by the parties to this case.
