Findings Of Fact Respondent Elizabeth E. Tice is a licensed real estate broker operating under the trade name of Betty Tice Realty, and is the holder of License No. 0089060. The Respondent operates her business from 1832 Victoria Avenue, Ft. Myers, Florida 33901. On or about April 10, 1979, the Respondent negotiated a contract for the sale and purchase of a parcel of residential real property located at 3743 S. E. 2nd Place, Cape Coral, Florida, between Robert C. and Kathryn H. Waite, as sellers, and Roy Rosenthal and Gloria Rosenthal, as purchasers. The contract price was $49,500. The face of the contract acknowledged receipt from the buyer of a $500 earnest money deposit to be held in escrow by the Respondent in the Betty Tice Realty Trust. The purchaser paid the earnest money deposit to the Respondent in the form of a personal check made payable to Betty Tice Realty Trust in the amount of $500. He instructed the Respondent to hold that check without depositing it in her trust account until he had returned to his home in New Jersey the next day and ascertained that there were sufficient funds to secure payment of the check. He would thereupon immediately call her and advise her to deposit the check. Immediately after the buyer had executed the contract, the Respondent presented it to the seller's agent, Mr. William B. Waite, a real estate salesman, who is the father of the seller, Robert C. Waite. Mr. Waite submitted the offer to his son and daughter-in-law, the sellers, on April 10, 1979, recommending that they accept it, which they did. The Respondent upon the receipt of the binder check from the purchaser, did agree to hold the check without deposit until he called the next day to assure her that funds were on deposit to pay the check. She placed the check in a bank bag used in the normal course of her business, but inadvertently placed it in the wrong hag, that is, not the one commonly used to carrv cash and checks to the bank for deposit. The check reposed in the bank bag in her office for approximately two weeks before she recalled that she should have deposited it and called the pnrc-iaser in New Jersey to ascertain its validity. On April 25, 1979, upon suddenly remembering that the check was still in her possession, she immediately took it to the bank, deposited it and then called the Rosenthals to inform them. The check was presented for payment and returned by the New Jersey bank marked "insufficient funds". Upon learning of this on May 8, 1979, Mrs. Tice telephoned salesman, William B. Waite, and informed him that the proposed sale and purchase of his son's residence had gone awry by reason of the invalidity of the buyer's binder check. The Respondent failed to inform the sellers that the earnest money deposit was not immediately deposited in the bank or in the trust account, but that failure was inadvertent and due to the fact that the Respondent simply forgot that she retained possession of the check in her office, rather than to any intentional scheme to mislead or deceive the sellers. Neither the sellers nor their agent made any inquiry regarding the status of the binder deposit prior to May 8, 1979 when they were informed of the problem. It is indeterminable whether the property was withdrawn from the real estate market from April 10 through May 8, 1979. The property remained in the multiple listing service book depicting homes available for sale during the period April 10 through May 8, 1979. However, the President of the sellers' real estate firm indicated that the property was off the market as far as his office was concerned since his firm lost the listing for the property during that period. Similarly, it was not established that the property was not available for alternative contracts during that interim period of April 10 through May 8, 1979 and, if none were received by tie sellers, whether the failure to secure such "back-up" contracts was due to reliance on the contract involved in this proceeding.
Recommendation Having considered the evidence in the record, the foregoing findings of fact and conclusions of law, the candor and demeanor of the witnesses, as well as the pleadings and arguments of counsel, it is RECOMMENDED that the Respondent, Elizabeth E. Tice, be found guilty of culpable negligence pursuant to Section 475.25(1)(a), Florida Statutes (1977), as amended, and that the penalty of a private written reprimand be imposed on the Respondent. DONE AND ENTERED this 13th day of February, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 February, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry A. Blair, Esquire 2149 McGregor Boulevard Post Office Box 1467 Fort Myers, Florida 33901 =================================================================
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 Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed March 1, 1982, the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to suspend, revoke or take other disciplinary action against Donna Migone and Pedro Realty, Inc., as licensed real estate salesperson/corporation, respectively, who have been issued License No. 0304648. 2/ On August 8, 1980, Mrs. Mary Perez, c/o Douglas Spring, Esquire, 15211 N.W. 60th Avenue, Miami Lakes, Florida 33014, entered into a listing agreement with Respondents Migone and Pedro Realty, Inc., for the sale of Mrs. Perez' property located at 414 West 67th Street, Hialeah, Florida. The asking purchase price of the subject property was $69,900. On August 18, 1980, Mrs. Perez was presented with a contract for the sale of her residential property by Donald E. Morton, a licensed real estate broker employed by International Realty Association and Investment Corp. and Respondent Donna Migone, the listing salesperson for Respondent, Pedro Realty, Inc. The contract/offer presented was for the sum of $66,000. Mrs. Perez reviewed the contract/offer presented by Respondent Migone and thereafter Respondent Migone filled out a form entitled "Approximate Seller Expenses" to explain to Mrs. Perez how the proceeds of the sale would be disbursed. During this explanation, Respondent Migone computed the commission due herself and Donald Morton both on the basis of a sales price of $56,000 and $66,000 pursuant to the contract/offer presented. In this regard, Mrs. Perez agreed to hold a $10,000 second mortgage to assist the purchasers in securing the financing to purchase the property. During that time, August 18, 1980, the purchasers gave Donald E. Morton a $4,000 purchase-money deposit for the subject property to be held in escrow until closing. On December 5, 1980, the closing occurred in a typical manner whereby the seller and the buyer separately delivered their respective documents and monies to the Amerifirst Federal Savings & Loan, 900 N.E. 125th Street, Suite 200, North Miami, Florida. There was no formal gathering of the parties and Respondent Migone and Donald E. Morton were notified on or about December 10, 1980, by Mrs. Perez' attorney, Douglas Spring, that the closing had occurred. Respondent Migone and Donald E. Morton computed the commission on the basis of six percent (6 percent) of the full purchase price of $66,000. This amounted to $3,960 as computed by Respondent Migone on one of the two net sheets presented to Mrs. Perez. On December 18, 1980, Respondent Migone and Donald E. Morton were paid $1,980 each from the escrow fund, and Donald E. Morton sent Mrs. Perez a check for $40.00 representing the balance due her from the escrow deposit fund. Petitioner contends that the commission should have been computed by Respondents Migone and Pedro Realty, Inc., on the basis of six percent (6 percent) of the amount of $56,000 or $3,360 as reflected on one of the net sheets presented to Mrs. Perez by Respondent Migone. On this point of dispute, evidence reveals that when the contract/offer was presented to Mrs. Perez, Mrs. Perez reviewed the offer and at that time was presented with two forms filled out by Respondent Migone entitled "Approximate Seller Expenses" to reflect how the proceeds of sale would be disbursed. During this discussion, Mrs. Perez agreed to the $66,000 offer and agreed to hold a $10,000 second mortgage to assist the purchasers in completing the real estate transaction. The testimony reflects that Mrs. Perez was interested in receiving a monthly income check and the income from the $10,000 mortgage was a means whereby this could be achieved. During the course of these discussions, one of the forms computed by Respondent Migone for the commissions reflected that commissions would be computed based on $56,000 whereas another form was computed reflecting the total purchase of $66,000. A careful reading of the testimony of Mrs. Perez reflects that she understood that she would be paying the commission based on the total purchase price of $66,000 and not based on the $56,00 as the Petitioner contends. Mrs. Perez indicated that she knew that she was selling the property for $66,000 and the six percent (6 percent) commission (on that basis) was no surprise to her. (TR 33, 40, 41, 57, 65, 72, and Respondent's Composite Exhibit B). Further, Respondent Migone credibly testified that there was a great deal of discussion of the $56,000 versus the $66,000 and the manner in which the $10,000 second mortgage would be written up; however, there was no evidence presented to reflect that no commission would be paid on the $10,000 second mortgage as contended by the Petitioner other than the "net sheet" computed by Migone reflecting the commission computed on six percent (6 percent) of $56,000. Further, Respondent Migone testified that Mrs. Perez never discussed paying a commission only on $56,000 versus the $66,000 as was computed and deducted by the Respondents. A review of the documentary evidence indicates that there are no variations of the six percent (6 percent) commission of the total sales price. (TR 66)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint against the Respondents, Pedro Realty, Inc., and Donna Migone, be DISMISSED in its entirety. RECOMMENDED this 24th day of January, 1983, 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 24th day of January, 1983.
Findings Of Fact At all times relevant to the charges against her, the Respondent, Phyllis F. Bell, was a licensed real estate salesperson holding license number 0005529 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. Prior to the formal hearing, the Respondent attempted to unilaterally surrender her license, which was not accepted by the Petitioner. The Respondent's last known address is 895 Indiana Avenue South, Englewood, Florida 33533. Notice of hearing and all correspondence regarding these proceedings was mailed to the Respondent at that address, and none of these items were returned to the Division of Administrative Hearings. The Respondent received notice of this proceeding as required by law, and although she requested a continuance, she did not show good cause for continuance of the proceeding. At the commencement of the hearing, the Respondent's motion was denied, and the Petitioner was so advised and permitted to present its case. On October 17, 1979, the Respondent entered into an option-purchase agreement with Eugene Turner, Sr., which agreement granted the Respondent an option to purchase real property known and referred to by the parties as the Van Buren Estate located on Boca Grande Island, Florida. The Respondent occupied this property and lived in one of several dwellings thereon until her option and several extensions thereto had expired. During said time, the Respondent attempted to sell her option at a profit. While living on the property, the Respondent incurred utility and telephone bills in the amount of approximately $5,600 which she was obligated to pay under the terms of the option agreement. After her last extension had expired, Respondent vacated the property, and, although she has acknowledged the debts, she has not paid them.
Recommendation Having found the Respondent, Phyllis F. Bell, not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, take no action against the Respondent. DONE and RECOMMENDED this 14th day of October, 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 14th day of October, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Ms. Phyllis F. Bell 895 Indiana Avenue, South Englewood, Florida 33533 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Randy Schwartz, Esquire Department of Legal Affairs 400 West Robinson Street Suite 212 Orlando, Florida 32801
The Issue The issues presented in this case concern an Administrative Complaint brought by the Petitioner against the Respondent, accusing the Respondent of failing to account or deliver, upon demand, money which he would not be entitled to retain, which money was due and owing to a real estate salesman employee of the Respondent broker, all in violation of Subsection 475.25(1)(d), Florida Statutes.
Findings Of Fact On December 9, 1981, Petitioner, State of Florida, Department of Professional Regulation, Board of Real Estate, now Florida Real Estate Commission, filed an Administrative Complaint against Respondent alleging the violation referred to in the Issues statement of this Recommended Order. Respondent who is a licensed real estate broker in the State of Florida, having been issued License No. 0137645, requested a Subsection 120.57(1), Florida Statutes, hearing, to resolve the factual disputes between the parties and the case was subsequently referred to the Division of Administrative Hearings for consideration. This request for assignment of a Hearing Officer was received on January 28, 1982, by the Division and a formal hearing was conducted on April 29, 1982. Notwithstanding notice provided to the parties, Respondent did not attend the hearing. At all times pertinent to the Administrative Complaint, Respondent, George F. Lewis, was the record broker for George F. Lewis Realty, Inc., located at 4237 Cape Coral Bridge Road, Fort Myers, Florida, 33907, the address listed with Petitioner as the business premises for Respondent. On December 2, 1981, Eleni Kaklis, a licensed Florida real estate salesman, employed by George Lewis Realty, Inc., while acting in the capacity of real estate salesman for that corporation, participated in the execution of a contract for sale and purchase in Lee County, Florida. The sellers were James Henry and Ruth Elizabeth Aalderink, and the purchasers were Stanley M. and Mary Jo Shaver. The terms and conditions of that contract may be found in the Petitioner's Exhibit No. 4, which is a copy of the contract admitted as evidence. The contract concerned residential property, and that property had been the subject of a listing through a real estate firm unaffiliated with the Lewis corporation. The listing broker was Aloia Realty. Kaklis had reviewed the multiple listings book in her office with the purchasers and had shown several other residences before the Shavers decided to purchase the Aalderink property. She also prepared the purchase contract which has been discussed. Respondent was not involved in the transaction, in the sense of actively showing property or consulting with the clients or in the preparation of the contract. A real estate closing was held on the Aalderink property in February, 1981. On February 17, 1981, George Lewis Realty, Inc., was paid a commission in the amount of $1,587.00, which represented the fifty (50) percent commission entitlement for the selling broker, with an equal amount being due the listing broker, Aloia Realty. The money paid the Lewis corporation was by a check which check was cashed by George Lewis. See Petitioner's Composite Exhibit No. 3. In keeping with the terms and conditions of the employment agreement between Kaklis and George F. Lewis Realty, Inc., set forth in Petitioner's Exhibits Nos. 5 and 6, specifically the numbered paragraphs 4 and 5, at page 11 of Petitioner's Exhibit No. 6, Kaklis was to receive fifty (50) percent of the commission paid to George F. Lewis Realty, Inc., less franchise fees due to Better Homes and Gardens. (Petitioners Exhibit No. 5, is constituted of a copy of excerpts of the contract between Kaklis and Lewis Realty, Inc., in the person of George Lewis, and Petitioner's Exhibit No. 6 is a format of the complete contract signed by Kaklis with the corporation through the offices or George Lewis, broker for the corporation.) Respondent was responsible for and obligated to Kaklis for the payment of her commission fee, which had been given to him by Kaklis by the delivery of a title company check which has been discussed herein. Nonetheless, Kaklis did not receive the commission fee for the sale of the Aalderink property and has been refused that commission in the face of repeated demands, on at least three (3) occasions. Respondent has always answered that request by stating that he did not have the money.
Findings Of Fact Glen H. Miller is a registered real estate broker holding license #0060204 issued by the Florida Real Estate Commission. Miller was the registered real estate broker in a transaction between David and Marsha Ewan, and Roy and Marilyn Cutrell. Miller prepared a contract for sale and purchase of real estate, Exhibit #5, for Roy and Marilyn Cutrell as buyers and presented it to Marsha and David Ewan, as sellers. The terms regarding the mortgage to be assumed in Paragraph B in Section 2 were based upon information given Miller by the Ewans when the property was listed. It is uncontroverted that as of the date the contract was prepared Miller had no knowledge that Ewan had refinanced the house and the mortgage terms had changed. This contract was presented in the presence of the Cutrells to the Ewans on January 20 or 21, 1977. There is a controversy as to when the Cutrells became aware the mortgage terms were different from those stated in the contract. The Ewans testified that they told the Cutrells the terms were different after the contract had been signed by both parties but not in Miller's presence. The Cutrells stated that they learned the mortgage terms were different when they inquired about the mortgage to Fidelity Federal Savings and Loan, holders of the mortgage. This occurred on January 24, 1977. In either event, both parties agree that Miller had no knowledge of the change in the terms of the mortgage until January 24. Miller prepared and presented a new contract to the Ewans and Cutrells which correctly reflected the mortgage data. The Cutrells represented to Miller and the Ewans that they did not consider the mortgage terms important and did not desire to sign the revised contract. The Ewans did not insist upon the revised contract. Subsequently, the Cutrells failed to deliver the additional deposit of $14,000 on February 1, 1977. Their reasons for failure to do so had nothing to do with the amount of the mortgage or the terms thereof. The Cutrells were advised by Miller's wife, a real estate salesman, that they would be in default if they did not deliver the $14,000 additional deposit and if they defaulted they would lose their initial $1,000 deposit. The Cutrells did not contest the forfeiture of their initial deposit and advised that they did not wish to complete the transaction. On February 4, 1977, a check was prepared by the broker to the Ewans in the amount of $700. The Ewans picked this check up on February 7, 1977. The remaining $300 was retained in the escrow account at all times. The Cutrells first demanded the return of the deposit orally on February The subsequently made written demands on February 23, 1977. Between the oral demand and the written demand, the broker reported the controversy existing with the Cutrells to the Florida Real Estate Commission, which eventually resulted in these charges being brought.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Glen H. Miller as a registered real estate broker. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ADDENDUM The Hearing Officer has read and considered the Proposed Findings of Fact and Conclusions of Law submitted by Petitioner, Florida Real Estate Commission. The facts presented in the Recommended Order are based on Substantial and competent evidence contained in the record. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings COPIES FURNISHED: Mark A. Grimes, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Harvey R. Klein, Esquire 333 NW 3rd Avenue Ocala, Florida 32670
Findings Of Fact At all times pertinent hereto Respondent O'Connor was a licensed real estate broker in the State of Florida having been issued license lumber 0065137. Respondent Berg was a licensed real estate salesman having been issued license number 0391098. At all pertinent times alleged in the Administrative Complaint Respondent Berg was licensed and operated as a real estate salesman in the employ of broker Respondent Edward M. O Connor. On or about February 15, 1953, Respondent Berg entered into a contract as purchaser seeking to purchase certain real property in Charlotte County, Florida, described as: Lot 26, Block 1, Charlotte Harbour Subdivision, also known as 201 Cortex Street, Charlotte County, Florida. The property was owned by Louis J. Knetter. Mr. Knetter, as seller, was represented by Emanuel Consalvo, a licensed real estate salesman or broker. This proposed contract, contrary to the allegations of Petitioner, made no mention in its terms of any $500 binder or earnest money deposit. Rather, the contract, instead of mentioning a cash deposit, had the words "commission" clearly written on the top, being Berg's pledge to pay $300 of the real estate commission he would be entitled to on the transaction to the buyer at closing. The proposed contract was tendered to Emanuel Consalvo , the seller's agent, who examined it thoroughly with his client Louis Knetter. Mr. Knetter subsequently refused to enter into that proposed contract. Respondent Berg then made a second offer to purchase the same property which was accepted by the seller. This offer was made on April 18, 1983. The contract regarding the second offer was prepared from a rough draft which Respondent Berg had handwritten. He handwrote the word "commission" precisely as on the original offer of February 15, 1983. On the final typed copy of the contract the abbreviated word "comm.," was typed into the contract to indicate (and it was Respondent Berg's intent) that the commission to be earned by Berg would be used as a down payment at closing rather than any proposal by Berg (or O'Connor) to post $500 or other amount of cash earnest money deposit upon the offering of the contract. Respondent Berg genuinely believed that anything of value could be inserted into a contract to provide consideration and could serve as sufficient consideration therefor including his offer to pay to the buyer a part of the real estate commission he would be entitled to with regard to that transaction Neither Respondents Berg nor O'Connor made any representations or statements, verbally or written, to Louis Knetter or Emanuel Consalvo to the effect that there ever was an earnest money deposit in any amount posted by the purchaser Berg, or on account at O'Connor Realty. Kevin O'Connor, the son of Respondent O'Connor, is also a licensed real estate broker who holds a degree in the field of real estate. He established that the textbook practice and indeed, the general real estate industry custom or practice in the Charlotte County area allows for anything of value to be used as consideration for a real estate contract and that a cash earnest money deposit is not necessary. He established the industry practice with regard to the posting of earnest money deposits for real estate sales contracts and demonstrated that unless a contract, by its terms, clearly indicates that an earnest money deposit has been posted, there is no basis for a seller or his agent to assume that to be the case. Kevin O'Connor, a witness for the Respondents, had personal contact with the seller's agent, Emanuel Consalvo, regarding the transaction and established that the Respondent Edward M. O'Connor was not even in his office or in the area during the time of the contract proposal or offer. Kevin O'Connor was operating the office in the Respondent Edward O'Connor's absence. Kevin 0'Connor established that the question of an earnest money deposit was never discussed with Consalvo and that neither Consalvo nor Knetter ever raised a question during the pendency of the transaction concerning the existence of an earnest money deposit. Kevin O'Connor never told Consalvo that any money was in escrow nor did Respondent Berg or Edward O'Connor. No representation was ever made to Consalvo or Knetter, singly or jointly, to the effect that any money had been placed on deposit or in escrow with regard to either of the two offers. Indeed, Mr. Consalvo acknowledged that no one at 0'Connor Realty ever told him of any money being placed in an escrow account. The transaction ultimately failed to close because the seller failed to include all the furniture with the home as required by the contract. At that juncture, the seller demanded the supposed $500 earnest money deposit to be paid him as a forfeiture on the mistaken belief that an earnest money deposit had been posted with regard to the transaction. Such was not the case however, nor was it ever represented to be the case.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the complaint filed by Petitioner against Respondents William Berg and Edward M. 0'Connor t/a O'Connor Realty, be DISMISSED in its entirety. DONE and ENTERED this 5th day of February, 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 5th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-0180 PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not in itself dispositive of the material issues presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not dispositive of the material issues presented in itself. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. RESPONDENT EDWARD O'CONNOR'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting a conclusion of law. Accepted. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Accepted. RESPONDENT WILLIAM BERG'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Elwood P. Safron, Esquire SAFRON, RODNEY & DZUPAK 306 E. Olympia Punta Gorda, Florida 33950 Jesus Hevia, Esquire WOTITZKY, WOTITZKY, WILKINS, FROHLICH & JONES 201 West Marion Avenue Punta Gorda, Florida 33950 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner is a real estate salesman registered with the Florida Real Estate Commission. In September of 1978, petitioner submitted an application to the Florida Real Estate Commission for registration as a real estate broker. By an Order dated December 4, 1978, the respondent denied the application for the reason that the applicant had not made it affirmatively appear that he possessed the necessary qualifications under F.S. 475.17. Specifically, the Commission found "That it appears to the Commission that Salesman Dunkum signed Broker Wallace W. Staff's name as a witness to Dunkum's signature on a contract offer to purchase real estate without authorization. In addition, Salesman Dunkum signed Broker Staff's name to a listing agreement without authorization." The petitioner timely requested an administrative hearing on the denial of his application and the undersigned Hearing Officer was duly designated to conduct the proceedings. The petitioner Dunkum admits that he did sign broker Staff's name as a witness to his own signature on a contract for the sale of real estate. Mr. Dunkum has been a notary public for approximately fifteen years and was aware that he should not have signed Staff's name as a witness. Petitioner was the purchaser under the contract and did in fact purchase the real estate. Thus, neither the purchaser nor the seller was harmed by the wrongdoing. The petitioner further admits that he did sign broker Staff's name to a listing agreement. He admits that he was wrong to sign Staff's name, without adding his initials or name under the signature. Petitioner believed he had the authority to sign Staff's name to listing agreements in Staff's absence. Mr. Staff testified that he never gave petitioner authority to sign his name and that all listings were to be under his signature. Mr. Staff was aware that petitioner had signed his name on documents prior to September of 1978. Nevertheless, on September 18, 1978, Mr. Staff entered into a three year independent contractor agreement with petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for registration as a real estate broker be DENIED, but that petitioner be permitted to submit another application for registration nine (9) months after the Order of the Commission dated December 4, 1978. Respectfully submitted and entered this 30th day of March, 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 32802 Rupert E. Dunkum 5900 94th Avenue Pinellas Park, Florida 32802
