Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondents promptly return the rental agreement fee to Narendra Patel in accordance with their agreement on the record in this cause. DONE AND ENTERED this 22nd day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 October, 1981.
Findings Of Fact Prestige Realty, Inc. and Anthony C. Cappello were at all times here relevant registered with the FREC as alleged. Mrs. Cappello, wife of Respondent, is a salesperson with Prestige Realty, Inc. Prestige Realty, Inc. is an Electronics Realty Associates (ERA) franchisee and actively promotes the ERA Homeowners warranty Plan which will, for a fee, warrant to pay for repairs to structure and equipment within the first year of purchase all costs over the minimum for which the policy is written. While showing prospective purchasers William and Dora Keys various properties, Mrs. Cappello told them about the ERA Buyers Protection Plan (BPP) and the Keys expressed an interest in having same, particularly if the seller would pay for it. Mrs.. Cappello has worked with the Keys for several months showing them various properties for sale. Thomas Hanrahan listed his home for sale with B & M Real Estate as listing agent at a price of $52,000 on 31 January 1977. On April 28, 1977 Mrs. Cappello obtained an offer from William and Dora Keys to purchase Hanrahan's house for $49,000. Keys had inherited some money, and after seeing the Hanrahan house which they liked, made an offer to purchase the property for $49,000 including the drapes and BPP. Inclusion of the BPP in the offer was suggested by Respondent Cappello and/or Mrs. Cappello. The fact that an offer had been received was communicated to the listing salesperson and the listing agent met the Cappellos to present the offer to Hanrahan. Respondent Cappello, who had accompanied his wife to present the offer, first discussed the contract conditions, including drapes and BPP, before revealing the offering price to Hanrahan and the listing broker's agent. When Respondent revealed the $240 premium for BPP Hanrahan remarked it was a "rip- off"; however, Respondent Cappello emphasized that the seller shouldn't mind paying this premium if the selling price of the home is right. After obtaining Hanrahan's agreement to the BPP "if the price is right', Respondent disclosed the offering price of $49,000. Hanrahan refused this offer and made a counter offer of $51,000, which was communicated to the buyers who re-countered with a $50,000 offer. At no time during these negotiations did Respondents advise Hanrahan that Prestige Realty would receive 25 percent of the premium the contract provided the seller would pay for the ERA BPP. Of the $240 premium paid for the BPP, $C0 was retained by Respondent, Prestige Realty, and the remaining $180 was forwarded to ERA. When the offer of $50,000 was presented to Hanrahan by Respondent Cappello, it was represented to be the buyers' final offer, that the ERA BPP was an essential element of the offer, and if not accepted by the seller they would find the buyers another house. The Keys never insisted to Cappello that the BPP be included in their offer, and both William and Dora Keys testified they would have paid $50,000 for the Hanrahan home without the BPP. Attempts by Hanrahan to share the cost of BPP with the buyers or discourage their insistence upon having this policy provided were rebuffed by Respondents. Following the closing the Keys were offered the option of taking a lower deductible on the BPP than $100, but after being advised the additional cost to them for a lower deductible, it was declined. Respondents and other ERA franchisees consider the BPP to be a good selling tool in the conduct of their business. In addition to the BPP, ERA offers a sellers protection plan which, if the seller lists his house with an ERA franchisee and agrees to pay for a BPP when the house is sold, will insure the seller from failure of certain equipment (less a deductible) during the period the house is listed before sale.
The Issue The issues proposed by Respondent, and adopted here, are: Whether the Petitioners timely filed a proper petition with all required attachments stating whether the Respondent's actions were substantially unjustified and whether circumstances exist that would make the award unjust, pursuant to Rules 22I- 6.035(1), (2)(e) and (3), Florida Administrative Code. Whether the Respondent was substantially justified in bringing this action, or that special circumstances exist which would make an award of attorney's fees unjust, pursuant to Section 57.111, Florida Statutes (1985). The Respondent has not contested the Petitioners' allegations of standing as a "prevailing small business party" nor the reasonableness of the fees and costs claimed by the Petitioners.
Findings Of Fact On January 20, 1986, Elizabeth Yerkes and Pilar Montes, comprising the Probable Cause Panel of the Florida Real Estate Commission (FREC), found probable cause that the Respondents violated the real estate law. They recommended that an administrative complaint be filed. In the record before me, the only evidence of the panel's decision is a four-page transcript of the January 20, 1986, proceeding. Any written materials which may have been considered by the panel are not included. The entire proceeding consisted of a brief exchange, wherein counsel for the panel was assured that the members had the opportunity to review the agenda material, and the following: MR. WILSEN [Counsel for DPR]: Item 6 concerns a broker and a corporate broker. The Respondents have failed to pay a cooperating broker a real estate commission in the amount of thirty-seven thousand dollars. Additionally, the Respondents have failed to keep the thirty-seven thousand dollars in their trust account. The final judgement in the amount of thirty-seven thousand-dollars was obtained against the company in December of 1984. Therefore, the Respondents are charged with failure to account and deliver a share of a commission and failure to keep the share of commission in their real estate brokerage trust account. Therefore, recommend [sic] this Administrative Complaint be filed. MS. YERKES [Panel Member]: After reviewing the file, I find probable cause to exist in ... is it four counts. Okay. MS. MONTES [Panel Member]: I find probable cause, too, in four counts. (Respondent's Exhibit 4, Pgs. 3, 4) The Administrative Complaint was filed on February 11, 1986, alleging violations of subsections 475.25(1)(d) and (e), F.S. and Rule 21V-14.13 Florida Administrative Code, for failing to account for and deliver a real estate commission to a cooperating broker, and failing to place and maintain the funds in escrow. On May 20, 1986, the Florida Real Estate Commission rejected a stipulation providing for revocation of the corporate respondent's license and reprimand of the individual respondent. The proposed stipulation included these oddly conflicting provisions: Respondents neither admit nor deny the allegations contained in the Administrative Complaint. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of a violation of the Real Estate Practice Act as follows: failed to account and deliver a real estate commission as to Respondent Real Estate Services, Inc., and failed to properly supervise the activities of the corporation as to Respondent Charles A. Alario, Sr. (Respondent's Exhibit 5, pp. 1-2) The cover letter from counsel for Respondents accompanying the stipulation informed counsel for DPR that the client was entering the stipulation to save the expense of proving his innocence. (Respondent's Exhibit 5) The final hearing was held in Sarasota, Florida on July 21, 1986. Each party presented only one witness. A substantial portion of Petitioner's case consisted of the complaint and judgement in a civil case wherein the Respondents were sued for share of a commission. The Recommended Order, dated October 6, 1986, provided, in pertinent part: Findings of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario, Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issued license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a corporation licensed as a `real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,25] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January, 1979 through August, 1980. (T- 19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34). Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T-31, 32). On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd. seller, and Buck Creek Development Corporation, buyer. (Respondent's Exhibit Number 8) Respondents did not have a co-buyer* agreement with Rider and Opitz nor with Ms. Bell. (T-20, 40, 41) Charles Alario offered Phyllis Bell referral fee to be paid to her broker of record. (T-41, Respondent's Exhibit Number 6). This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18, 20, 21, Respondent's Exhibit Number 1 and Number 9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's Exhibits Number 4 and Number 5). A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the, jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's Exhibit Number 6). Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52- 54). *The context suggests this term was intended to be "co-broker". The Recommended Conclusions of Law noted that the exhibits from the civil suit were not competent evidence, in and of themselves, of violations of subsections 475.25(1)(d) and (e), F.S.: It is not possible to extrapolate from the complaints and the very briefly-worded judgement that the essential elements of those subsections were proven. The involuntary dismissal of Charles Alario and the jury award of $37,000.00 damages bear little resemblance to the relief sought and allegations made by the Plaintiff, Rider, Opitz, and Seale, Realty, Inc. Further, it was noted that the stricter standard of proof in a license proceeding effectively precluded reliance on a prior civil judgement for evidence of a license statute violation. The Department of Professional Regulation never proved an essential element of the alleged violations, that Respondents actually received their commission from the sale. Respondents were in the process of suing for that commission, a fact duly noted by counsel for DPR in his presentation of the proposed stipulation to the Commission. (Respondent's Exhibit Number 6, p. 3) On December 2, 1986, the Florida Real Estate Commission voted 3-2 to adopted the Recommended Order dismissing the charges. The members were obviously troubled by the existence of a civil judgement against the corporation that had not been satisfied. Counsel for DPR conceded, however, that the alleged violations were not failure to pay a judgement, but rather, failure to pay a commission to a real estate broker. (Respondent's Exhibit Number 7, p. 17) This distinction was also noted by Marguerite Schlitt, the Vice-chairperson. (Respondent's Exhibit Number 7, p. 20) Another member noted that he could not find, in his reading, anything specifically where the commission was paid. (Respondent' Exhibit Number 7, p. 18) As part of his argument to the Commission, counsel for DPR again made clear the essence of the case against these Respondents: [by James Mitchell, DPR staff attorney]: I think we have got to give that civil judgement some credence, some credibility, and you can do that by overruling the Hearing Officer's recommendations and going essentially with what the civil Court has done. I don't think it is necessary for us, in these proceedings, to retry a civil trial all over again. I think it is our position that the final judgement, complaint and final judgement, are sufficient to establish, in situations such as this, that a stipulation has occurred, rather than, in fact, a case like this where the judgement had to be anticipated. I think you can do that by overruling the Hearing Officer's Recommended Order. (Respondent's Exhibit Number 7, p. 15) The Commission's Final Order adopting and incorporating by reference the Recommended Order was filed on December 11, 1986. The Department of Professional Regulation appealed to the Fifth District Court of Appeal. The Final Order was affirmed, per curiam, without an opinion, on July 21, 1987. Petition for Rehearing was denied on August 17, 1987, and the appellate court's Mandate was issued on September 3, 1987. To defend against the agency action, Petitioner incurred attorney's fees and costs in the total amount of $9,190.68. This amount is not contested by Respondent.
Findings Of Fact Based upon my observations 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 one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly. When LaReau leased the subject premises from Heide he entered a twelve (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2). Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D). Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: 1. That the Administrative Complaint filed herein be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.
The Issue The issue is whether respondent's license as a real estate broker should be disciplined for the reasons stated in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Yolanda Jean Ramsey, was a licensed real estate broker having been issued license number 0012364 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent operated a real estate firm under the name of Ramsey Realty located at 19940 Gulf Boulevard, Indian Shores, Florida. Her husband, Drew Ramsey, was a condominium developer but he was not a licensed realtor. Sandra A. Hawley (Hawley) was a licensed salesperson for Ramsey Realty from April 1981 until she was terminated by respondent on January 6, 1982. She was employed by respondent pursuant to an oral agreement and was to receive a 3% commission on all closed sales. This description of Hawley's compensation arrangement was not contradicted by respondent. Drew Ramsey was then developing several condominium projects in Pinellas County, and Hawley's sales activities were focused on the sale of those condominiums through Ramsey Realty. Hawley was described by respondent as being the best salesperson in the firm. From April 1981 through December 1981, Hawley recalled that her W-2 statement reflected $76,000 in commissions actually received. By the time she was terminated, Hawley represented that she had either closed on units or had firm contracts on other units to earn an additional $279,000 in commissions. Although respondent did not agree she owed Hawley any money due to various setoffs, the $279,000 figure was not credibly contradicted, particularly since respondent's records relating to those sales were allegedly destroyed or lost by respondent at about the time certain civil litigation was begun by Hawley. On January 6, 1982, respondent was terminated by respondent for cause. According to respondent, Hawley was delinquent in making payments to her husband for several condominium units Hawley had bought for investment purposes, and on one occasion, Hawley had not turned over to Ramsey Realty a deposit on a resale of a unit. She was also accused of bouncing checks. After she left Ramsey Realty, Hawley made demand for commissions still owed. Between January and June 1982 she was paid approximately $40,000 by respondent but received nothing after that. She eventually sued respondent in circuit court for the unpaid commissions and obtained a final judgment against respondent on December 10, 1987 for $76,000 plus interest, or a total of $118,618.88. To date, Hawley has been unable to obtain payment of the judgment. At hearing respondent acknowledged that a judgment pertaining to Hawley's unpaid commissions was entered against her and that no appeal of that judgment was taken. According to Ramsey, she has refused to pay Hawley based upon her attorney's advice. Respondent's principal defense against paying the commissions is that Hawley allegedly owes her and her husband substantial amounts of money which offset the earned commissions. Testimony at hearing revealed that these matters have been the subject of extensive and lengthy civil litigation between Hawley and the Ramseys. Hawley represented that she has prevailed in all court actions, and this was not contradicted by respondent. However, none of the judgments and mandates (if an appeal was taken) were made a part of this record. The principal offset relates to a lease-purchase agreement entered into by Hawley and her son, James Monette, Jr., and Drew Ramsey in June 1981 whereby Hawley and her son agreed to lease, with an option to purchase, a restaurant/bar known as The End Zone located on Dale Mabry Avenue in Tampa, Florida. On June 18, 1981 Hawley and her son executed a promissory note in the amount of $170,000 payable to Drew Ramsey and to be secured "by an assignment of commissions of even date herewith". The note also provided that "certain commissions earned by Sandra A. Hawley as a real estate salesperson for Ramsey Realty ... shall be applied as prepayments on account hereof." This was confirmed in a letter sent by Hawley to respondent on June 18, 1981. The letter authorized Ramsey to "pay one-half of all commissions which I have earned or will earn from working as a real estate person for Ramsey Realty to Drew Ramsey on account of the indebtedness under the Note until it is paid in full." The letter further provided that if Drew felt "insecure" about the note, Yolanda was authorized to "assign such greater percentage of (her) commissions to Drew Ramsey on account of the indebtedness until it is paid in full." Hawley admitted signing the promissory note but pointed out that she had earned enough commissions to easily pay off the note. She contended that the transaction was a ploy to allow Ramsey to retain all of her commissions and thereby deprive her of adequate capital to successfully operate the restaurant. Hawley further asserted that the transaction was later declared null and void in one of the civil actions between the parties because of certain fraudulent representations made by Drew in inducing her to enter into the agreement. However, the final judgment, which is the best evidence of the outcome of the suit, is not of record. On October 1, 1981, an agreement and promissory note was executed by Hawley wherein she promised to pay Drew Ramsey and his partner, George Karpay, $58,162.90 plus 18% interest for monthly payments owed Ramsey and Karpay on five condominium units Hawley had previously purchased from them. The note was secured by Hawley's commissions earned at Ramsey Realty. Hawley acknowledged that the signature on the documents was her own but contended that the documents had been altered after she signed them. On October 1, 1981, Hawley also executed an assignment of commissions whereby she agreed to authorize Ramsey Realty to disburse all commissions earned to Drew Ramsey and Karpay until the promissory note described in finding of fact 9 was satisfied. Again, Hawley acknowledged that the signature appeared to be her own but she contended the document was altered after it was signed. According to respondent, the commissions earned by Hawley were not held in the firm's escrow account. Instead, while Hawley was still an employee, such moneys were disbursed by the title company at closing directly to Ramsey Realty, and then Ramsey wrote a check to Hawley as commission compensation. After Hawley was terminated, the manner in which Ramsey received Hawley's earned commissions and their subsequent disposition are not of record. However, respondent represented, without contradiction, that they were not held in the firm's escrow account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating subsection 475.25(1)(d) and that her broker's license be suspended for three years. The other charge should be dismissed. DONE AND ORDERED this 14th day of December, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of December, 1989.
Findings Of Fact Donald L. Stuart is a real estate broker registered with the Florida Real Estate Commission. He holds license number 215732 with expiration date of 3/3/77. In the renewal application received April 3, 1975 by FREC, Stuart reported his business address to be 407 S. Old Dixie Highway, Vero Beach, Florida. In early August, 1976 an investigator for FREC visited the address on South Old Dixie Highway and found a vacant house with no real estate broker's sign displayed. Inquiry in the neighborhood revealed the house had been unoccupied for a considerable period of time. By Election of Rights form submitted November 26, 1976, Stuart acknowledged receipt of the Administrative Complaint by checking Block 1 in which he acknowledged having read the explanation of rights, did not dispute the allegations made in the Administrative Complaint, and requested a hearing. Notice of Hearing was forwarded by Certified Mail, to the same address, viz. 407 S. Old Dixie Highway, Vero Beach, Florida to which the Administrative Complaint had been forwarded.
Findings Of Fact At all times pertinent to this hearing, The Vacation Shoppe, Inc., was a real estate brokerage corporation licensed by the State of Florida and the Florida Real Estate Commission was the agency responsible for regulating the practice of real estate in Florida. On or about April 7, 1987, the Florida Real Estate Commission filed an Administrative Complaint against Mike W. Trowbridge and Barbara Harvey Cage, registered real estate brokers, and The Vacation Shoppe, Inc., a registered real estate brokerage corporation, alleging that the three Respondents had unlawfully shared real estate commissions with non-licensed personnel. A formal hearing on the matter was held before the undersigned, a Hearing Officer with the Division of Administrative Hearings, who on December 4, 1987 entered an Order finding that DPR had failed to establish the alleged violations and recommending that the complaint against all Respondents be dismissed. This was done by the Florida Real Estate Commission by its Final Order of January 19, 1988. The filing of the Administrative Complaint was brought about by a complaint filed with the Commission by an individual by the name of Gerald Hartman who, on October 31, 1986, introduced DPR's investigator, Mr. Harris, to a Mr. and Mrs. Paquette. The Paquettes, formerly managers of a resort condominium and employed by IRPM, a management company, indicated they had been paid $10.00 in cash for each apartment they rented for the Respondent, The Vacation Shoppe, by Keith Trowbridge, the owner of IRPM. The Paquettes indicated that when Keith Trowbridge brought the last payment in cash for Mrs. Paquette and another employee, he stated that due to a complaint filed against him by Mr. Hartman, he could no longer pay the rental commissions by check as he had previously done. The Paquettes were not licensed real estate professionals. When Mr. Harris received this information, he contacted Respondent Cage at the office of The Vacation Shoppe, Inc. where she gave him rental forms verifying Mrs. Paquette had arranged certain rentals for TVS. Mr. Harris assumed the Paquettes and the other manager had been employed by TVS and contends Respondent Cage did not correct this assumption when he made the connection, but he did not attempt to verify their status. By the same token, Mr. Harris assumed Keith Trowbridge owned TVS at the time the questioned payments were made. The evidence indicates, however, that Keith Trowbridge had no priority interest in TVS and made his payments to the Paquettes as he did as a continuation of a long-Standing practice to reward employees of his company, IPRM. Keith Trowbridge may well have had some hidden interest in TVS, but no evidence was presented to establish this fact. Mr. Harris stated at this hearing, "It was common knowledge that Keith Trowbridge owned TVS. No one denied that." while no one may have denied it to Mr. Harris, a strong denial was presented at the hearing on the original complaint and no evidence was presented to contest the denial. Based on the above information, Mr. Harris concluded the evidence showed that Mike Trowbridge and Barbara Cage, both employees of TVS, were guilty of paying commissions to non-licensed people even though Mrs. Paguette had indicated that Keith Trowbridge, not Mike Trowbridge, had made the payments He relied on his belief, contrary to the evidence, that Keith Trowbridge owned TVS; his understanding that Keith Trowbridge had previously surrendered his real estate license in another matter arising out of a complaint filed by Mr. Hartman; and his knowledge that Barbara Cage had agreed to a prior consent order regarding the payment by her of unauthorized commissions. Mr. Harris' Reports of Investigation were referred to the Probable Cause Panel of the Florida Real Estate Commission for consideration of possible action. Ms. Pilar Montes, a Commissioner, was a member of that Panel and reviewed the investigative files relating to this case both before the Panel convened and again at the meeting. Ms. Montes was led to the conclusion that the three Respondents here were guilty of the violation alleged by what she perceived as evidence they were making the unauthorized payments. One of the items which she considered was the Cease and Desist Order signed by Respondent Cage. In Ms. Montes' words, "if she was not guilty, why did she sign the Order?" Mrs. Montes did not independently investigate the facts but concedes that the fact Respondent Cage signed the Cease and Desist Order in a prior case had some effect on her conclusion that she was also guilty in the instant case. She also considered the statements of the Paquettes and Ms. Minor, the other lady paid by Keith Trowbridge, and though they indicated the money was paid by Keith Trowbridge, Ms. Montes believed he was "involved" with TVS. The Report of Investigation of Mike Trowbride indicates in the investigator's summary of his interview with Keith Trowbridge that Keith Trowbridge is the owner of The Vacation Shoppe. There is no independent evidence of that but Ms. Montes relied on it as a member of the Probable Cause Panel. As she clearly stated at the hearing, "It's not our job to go beyond the report." Ms. Montes cannot say if she would have reached a different conclusion on voting Probable Cause had she known that Keith Trowbridge was not an owner or director of TVS. She also did not consider the fact that both Mike Trowbridge and Barbara Cage had indicated they did not know what Keith Trowbridge was doing. She and, apparently the remaining Panel members relied wholly on a report of investigation which was, it appears, inaccurate and misleading, based on unsupported assumptions and unjustified conclusions. When the Administrative Complaint was filed and served on the Respondents, they contacted attorney Jack P. Pankow who represented all three at the formal hearing herein. Mr. Pankow billed The Vacation Shoppe a fee of $3,542.50 plus reimbursement for the cost of the transcript of $303.75. The fee and transcript cost was paid by the billee, TVS. Mr. Pankow billed for 28 and 1/4 hours at an hourly rate of $125.00 per hour which has been his standard hourly fee for the past 5 years. Robert Henderson, an attorney who has practiced in a general trial practice in Lee County since 1972 reviewed Mr. Pankow's file in this case for reasonableness. The file was made up of several sections including the pleadings filed by all parties, memoranda prepared by Mr. Pankow, 18 letters from Mr. Pankow to various individuals, a telephone log relevant to this case, a substantial legal research file, a production and discovery sub-file containing information on the various witnesses, a transcript of the formal hearing, and time sheets prepared by Mr. Pankow which indicated that as of the filing of the Motion for Attorney's Fees, counsel had expended more than 28 hours on this matter. Mr. Henderson has known Mr. Pankow from practice with and against him for approximately 12 or 13 years. The rate of $125.00 per hour is standard for middle level attorneys and is reasonable. Mr. Henderson is of the opinion that considering the nature and complexity of this case there was nothing to justify charging more than the standard hourly rate and the time spent on the case was reasonable. Inquiry of records of the Division of Real Estate reveals that as of July 20, 1988, searching only through the letter "H", The Vacation Shoppe has over 100 licensees affiliated with it. No information was presented as to whether these licensees were employees or independent contractors. TVS indicates it has only 5 employees. The agency did not present any evidence to indicate the actual relationship of the licensees to the corporation. No evidence was Presented as to compensation methods or arrangements, hours, working conditions, liability for tax or any other indicia of relationship. Since a real estate broker, absent a salary or draw agreement or the accomplishment of some commission-earning activity, does not normally become liable for compensation to a licensee whose license is listed with it, it is clear that the licensees are not employees.
