Findings Of Fact Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated: At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation. First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving, setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000. On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission: This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976. I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ". * * * We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available. On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret. Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. COPIES FURNISHED: Kenneth M. Meer, Esquire 400 West Robinson Avenue Orlando, Florida 32801 Mr. George W. Pinkerton 2833 East Highway 92 Lakeland, Florida 33801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-2292 GEORGE W. PINKERTON, Respondent. /
Findings Of Fact On November 29, 1983 Petitioner filed with Respondent an application for licensure as a real estate salesman. By letter dated February 28, 1984 Respondent denied Petitioner's application as follows: The reason for the Commission's action is based on your answer to Questions 6, 7, 14 and 15 of the licensing application and/or your criminal record and disciplinary actions, and on your having unlawfully acted as a real estate salesman or real estate broker in the State of Florida. Specifically, your denial is based upon your May 1975 arrests and convictions for five counts of the sale of unregistered securities five counts of fraudulent sale of securities, five counts of grand larceny, petty larceny, ten counts of conspiracy to commit a felony, and also on disciplinary actions involving your Insurance License, Mortgage Brokers License and Securities License. In 1970 or 1971 Petitioner started Summit Investments, a conpany engaged in selling contracts for deed for developers to investors at a discount. The State of Florida determined that these contracts were mortgages and not securities, and, therefore, all persons selling them must be licensed mortgage brokers. Petitioner accordingly obtained a mortgage broker's license. In 1972 eight mortgage brokers formed S.E.I., Inc., and Petitioner became the president. Everyone selling contracts for deed for that company was licensed under the Mortgage Brokerage Act. Clinton E. Taylor, an investigator for the State of Florida Department of Banking and Finance, Division of Securities, as part of his regular job duties, frequented Petitioner's offices at S.E.I., Inc. to check the advertising and sales pitches being used by the persons selling what the State had classified as mortgages. Taylor monitored Petitioner's operation at Summit Investments and at S.E.I., Inc. for a number of years without receiving any consumer complaint and without finding any basis for any enforcement action against Petitioner. In 1974, a recession year, five persons to whom S.E.I. had made sales did not receive their interest income and therefore filed complaints with the State of Florida Department of Banking and Finance. In May 1975 state criminal charges were filed against Petitioner as president of S.E.I., against the developer, and against the selling broker, basically alleging that what had previously been classified as mortgages were in fact unregistered securities. After trial, Petitioner was adjudicated guilty of five counts of sale of unregistered securities; five counts of fraudulent sale of securities; five counts of petty larceny; five counts of conspiracy to commit a felony, to-wit: fraudulent sale of securities; and five counts of conspiracy to commit a misdemeanor, to-wit: petty larceny. Petitioner was initially sentenced to a total of ten years of incarceration, $20,000.00 in fines, and 15 years of probation. In 1976 Petitioner plead no contest to a federal charge of mail fraud in Tampa, Florida in order to obtain a sentence which would run concurrent with that arising out of his state conviction. In 1977 Petitioner plead no contest to a charge in Palm Beach County of selling unregistered securities. Both of these charges were related to the same incidents forming the basis for the 1975 criminal charges. Based upon the conviction of Petitioner in the 1975 state case, his mortgage broker's license, his securities license, and his insurance license were revoked. By the time of the final hearing in this cause Petitioner had served 16 months in the State prison system and had been released; restitution had been made to the five people who caused the criminal charges to be filed from payment by Petitioner of the fines assessed against him; Petitioner had finished serving his amended probation period; and Petitioner's civil rights had been restored by the State of Florida. From September 1980 to November 1983 Petitioner earned his livelihood selling businesses. Be applied for a real estate license in both 1982 and 1983 and was denied both times. Petitioner seeks a real estate license in order that he can return to selling businesses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to successful completion of the licensure examination. RECOMMENDED and ORDERED this 6th day of November, 1984 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1984. COPIES FURNISHED: Mr. David R. Edstrom 5748 Northeast 16th Avenue Fort Lauderdale, Florida 33334 Lawrence S. Gendzier, Esquire Department of Professional Regulation 400 West Robinson Street Suite 212 Orlando, Florida 32801
The Issue Whether the license of Respondents should be revoked or suspended or other discipline imposed.
Findings Of Fact Upon consideration of the evidence received, the testimony elicited at the hearing, argument of counsel and memoranda submitted by the parties, I find: Respondent, Florida Coast Realty, Inc., was issued License Number 0168325 as a registered real estate broker corporation. Respondent Steven R. Myer, holds license number 0110787 as a registered real estate broker. Respondent Myer is an Active Firm Member for Respondent, Florida Coast Realty, Inc. In general, the contention of the Petitioner Commission is that the Respondents failed to pay an employee, Sam Blumner, a real estate commission due him on two occasions contrary to certain provisions in Chapter 475, Florida Statutes. The contentions of the Respondents are that the dispute was contractual and not within the jurisdiction of the Petitioner, that they tried to avoid an information being filed against them, and that the alleged offense's are insufficient to justify suspension or revocation. On November 1, 1976, Florida Coast Realty, Inc., by Steven R. Myer, entered into a contract agreement with Sam Blumner whereby Mr. Blumner was to receive a fee earned as a result of service performed by Mr. Blumner as a real estate salesman with Florida Coast Realty, Inc. Subsequently, on January 13, 1977, Sam Blumner was terminated as a salesman with Florida Coast Realty, Inc., and a notice of registrant change was nailed by the corporation to the Pompano Beach-Deerfield Beach Board of Realtors and received by the Board on January 18, 1977. A transaction pertinent to subject hearing was entered into on or about November 11, 1976 in which Walter Ross and Sam Blumner were the "listing" salesmen for property owned by Frank S. Holsclaw and Florence Holsclaw. It was ultimately purchased by Dennis F. and Dione Dicataldo, but subsequent to the termination of the employment of Blumner by Respondents. Mr. Blumner made a claim for $297.00 which represented one-half the listing, or twelve and one-half percent of the office profit. He testified that he was listed on the office "log" as co-lister. Nothing was paid to Mr. Blumner although Mr. Walter Ross, a broker formerly associated with Respondent Florida Coast Realty, Inc. and the co-lister was paid twelve and one-half percent of the office profit. Mr. Ross estimated that he received between $250.00 and $260.00 as "half" listing commission. Mr. Blumner's name did not appear on the listing contract in the transaction because he had not yet been listed as a member of the Board, and only the name of Walter Ross was listed as "salesperson". Mr. Ross testified that he and Sam Blumner were listed together on the transaction and that he himself received half of the listing commission. A registered realtor associate who worked for Respondent, Florida Coast Realty, Inc. at the time, Dorothy E. Reagan, testified that Walter Ross and Sam Blumner were the listing salesmen on the Holsclaw-Dicataldo transaction. The Respondents did not dispute the fact that Walter Ross was paid but one-half the listing commission although they pointed out his was the only name on the written contract. No evidence was entered by the Respondent showing that the remaining one-half of the listing commission was paid by Respondents to anyone. A second transaction pertinent to this hearing was entered into on December 31, 1977 with Mr. and Mrs. Haarar as sellers, and Mr. and Mrs. Grimes as buyers. The closing was several months later and after Mr. Blumner had left the employment of Florida Coast Realty, Inc. Mr. Blumner was the salesman who first showed the purchaser the home later purchased by Mr. and Mrs. Grimes, and was the "procuring cause" of the sale. He made an offer to the seller and counter offer of the seller to the buyer. He related to the Grimes the offer of $27,000, which was the final purchase price of the home and showed these purchasers other property for sale. Mr. Blumner was not paid a commission for the sale of the home. Both Mr. Ross and Mrs. Reagan testified that Mr. Blumner was the salesman on the transaction. Mr. Jerome T. Myer of the Respondent Florida Coast Realty, Inc., stated that Mr. Blumner should have been paid, but not the full commission inasmuch as he had not done the follow-up work involved after the initial procurement of a purchaser for the property. The Respondent, Steven R. Myer and his brother Jerome T. Myer did the follow-up work on the sale of the property in the Haarar-Grimes transaction. Mr. Blumner contends that he made demands for his money both as a co- lister and a salesman, but that no money was paid him. He testified that he would have foregone his commission as a co-lister in the amount of some $260.00 had he received a commission as salesman in the Haarar-Grimes transaction, a sum of some $567.00. Mr. Blumner testified that he endeavored to talk to the Respondent Steven R. Myer about the commission but was interrupted by Jerome Myer, and that he told the Respondents he would have to seek redress through the Petitioner, Florida Real Estate Commission, if he did not receive a commission. A letter was sent to the Petitioner by Respondent Myer on April 7, 1977 requesting information as to the jurisdiction of Petitioner relative to "a dispute with one of my former associates regarding commission money". The Commission acknowledged the correspondence and Respondent Myer was informed that the Commission had received a complaint against him alleging he had failed to account or deliver a commission to a salesman, and that it was being assigned for investigation. The Respondents made little or no effort to settle the dispute prior to the hearing.
Recommendation Suspend the license of the Respondents until the commission has been paid to Sam Blumner as co-lister in the Holsclaw-Dicataldo transaction and a settlement has been made in regard to the Haarar-Grimes transaction. DONE and ENTERED this 21st day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Steven L. Josias, Esquire P. 0. Box 23536 Fort Lauderdale, Florida 33308 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, Petitioner, vs. CASE NO. 78-812 Progress Docket No. 3321 FLORIDA COAST REALTY, INC., and Broward County STEVEN R. MYER, Respondents. /
Findings Of Fact Robert Hartnett was at all times pertinent to this complaint a registered real estate broker. Bill Dew and Dave Allman sought to lease a specific piece of real property for business purposes. In this regard they contacted William Hartnett, who had previously leased a piece of real property which included the specific piece of property Messrs. Dew and Allman desired to lease. Messrs. Allman and Dew entered into an agreement to sublease a portion of the Hartnett leasehold. A contract was prepared by William Hartnett and delivered by Robert Hartnett to Dew and Allman, who executed the contract. Although there is conflicting testimony, the testimony of Robert Hartnett is accepted as the more accurate explanation of his role in the transaction. Robert Hartnett had no interest in William Hartnett's business venture or in the leasehold, and did not appear or function as a real estate broker in this transaction. The owner of the property, Mr. Grossinger, testified he agreed to lease the property to William Hartnett. Hartnett was permitted to occupy the premises and paid rent. William Hartnett prepared a written lease which was not signed by the owner, Mr. Grossinger. Grossinger terminated the agreement when Hartnett subleased the premises to Allman and Dew without notifying him and instituted legal action to evict William Hartnett. Under the circumstances, there was an oral lease between Hartnett and Grossinger. Messrs. Dew and Allman made arrangements with contractors to make modifications to the subleased premises, and the modifications were begun. These modifications were in part the cause for the owner terminating the lease with William Hartnett. Messrs. Dew and Allman or their agents did have occupancy of the premises.
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 Respondent Robert Hartnett. DONE and ORDERED this 14th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Louis M. Jepeway, Esquire 619 Dade Federal Building 101 East Flagler Street Miami, Florida 33131
Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue The Administrative Complaint alleges that the Respondents are guilty of fraudulently withholding a commission and failing to account for said commission. The Respondents contend that there was no commission owed to the salesperson because the salesperson did not obtain the listing contract upon which the transaction closed and had been discharged for cause before a contract for purchase was obtained. The factual issues upon which the case is determined is whether the listing contract upon which the transaction closed was obtained by the salesperson who claimed the commission, and whether the contract for purchase was received before the salesperson was discharged for good cause. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaint and at the time of hearing, the Respondent, Jacqueline B. Ousley, held real estate broker's license number 0333339 and operated the Respondent corporation, Touch of Class Realty, Inc., which held corporate real estate broker's license number 0218522. Both licenses were issued by the Florida Real Estate Commission. (See Petitioner's Exhibit 1.) Diane Carroll was employed by the Respondents as a real estate salesperson from February to June l2, 1982. On June 13, 1982, Ms. Carroll was discharged for good cause by the Respondents. On May 25, 1982, Ms. Carroll obtained an open listing on the Breezeway Motel, 2001 North Dixie Highway, Lake Worth, Florida, from Carl C. Summerson. This listing was good through June 25, 1982. (See Petitioner's Exhibit 2.) Based upon this contract, the Respondents showed the property to prospective buyers, to include Anthony and Deborah Hedley, the ultimate purchasers of the property. However, after the Hedleys had become interested in the property, the Respondents became aware that Summerson was not the sole owner of the Breezeway Motel. Because of the interest of the Hedleys and the prospects of selling the property, the Respondents sought and obtained an exclusive listing agreement from both owners of the motel, Carl Summerson and Roy Chapin, which was signed on June 14, 1982. As an exclusive listing, this contract supplanted the open listing obtained by Ms. Carroll on May 25, 1982. The Respondents obtained an offer to purchase the Breezeway Motel from the Hedleys on June 16, 1982, which offer was accepted by Summerson and Chapin. This transaction closed, and the Respondents received one-half of the ten percent commission, $33,800. The custom of the profession is that salespersons earn a listing commission on a listing contract obtained by them while they were employed if a contract for the purchase of the property is obtained before the salesperson leaves the broker's employment. The Respondents tendered a "referral fee" of $845 to Ms. Carroll, as opposed to a salesperson's share of the commission which was $5,070. Ms. Carroll has a civil action pending, seeking to obtain payment of the commission.
Recommendation Having found the Respondents not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Florida Real Estate Commission dismiss the Administrative Complaint against the Respondents, Jacqueline B. Ousley and Toch of Class Realty, Inc. DONE and RECOMMENDED this 3rd 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 3rd day of October, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461 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 =================================================================
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Thompson be suspended for a period of one year. DONE and ORDERED this 6th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Calvin Dawson Thompson Route 1, Box 1075 Oviedo, Florida 32765 =================================================================
The Issue The issue in Count I is whether Section 475.42(1)(j) absolutely prohibits a broker or salesman from filing a lien or other encumberance against real property to collect a commission. The issue in Count II is whether the Respondents violated a lawful order of the Commission by failing to remove the motion of lis pendens contrary to Section 475.25(1)(e), Florida Statutes.
Conclusions Section 475.42(1)(j), Florida Statutes, provides as follows: "No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose." Clearly the Respondents placed or caused to be placed the notice of lis pendens in question. A notice of lis pendens is clearly an "other writing which purports to effect the title of, or encumber, any real property." The Florida Real Estate Commission argues that this provision is an absolute bar to the filing of any lien for the purpose of collecting a commission. The Respondents argue that this provision is not an absolute bar and there are circumstances when a broker may file a notice of lis pendens. They also assert that the notice of lis pendens falls within the exception because the Circuit Court refused to remove the notice of lis pendens upon motion of the property owner. Lastly, it is argued that the notice was filed by counsel for the Respondents in good faith on an action at law and that this mitigates their action even if there was a violation. The language of Section 475.42(1)(j) cannot be read to absolutely prohibit a broker from obtaining a lis pendens. When given this construction, it effectively denies brokers and salesmen access to the courts for redress of injury as provided in Article I, Section 21 of the Florida Constitution. Section 475.42(1)(j) is a complex provision which is subject to two interpretations. One interpretation would prohibit a broker or salesman from filing an encumberance if the same were known to him to be false, void or not authorized by law; if not authorized to be upon the public records; if not executed in the form entitling it to be recorded; if the execution of recording thereof has not been duly authorized by the owner of the property; if maliciously (filed); if for the purpose of collecting a commission, if to coerce payment of money to the broker or salesman or other person; or if for any other unlawful purpose. This first interpretation would consider each clause a separate limitation on filing an encumberance. The facts analyzed under this interpretation do not show any knowledge by Respondents that the lis pendens was false, void or not authorized to be filed or not on a form entitling it to be recorded. The facts do not show that Respondents filed the lis pendens maliciously, for the purpose of collecting a commission, or for the purpose of coercing payment of money to the broker or salesman, or for any unlawful purpose. The nature of lis pendens would not require the owner's authorization of execution for recording. The facts show that the lis pendens was filed by Respondent's attorney in conjunction with a suit brought by the Respondents against Perrin. The record also shows that the circuit court determined that the lis pendens was recordable when it denied the motion to remove it. The notice of lis pendens was neither malicious, coercive or for the purpose of collecting the commission. The notice was for the purpose of perfecting the claim against the property for execution of the judgment if the Respondents prevailed in the suit. Executing on a judgment is different from collecting the commission or coercing payment. Under this interpretation the Respondents have not been shown to violate Section 475.42(1)(j). A second interpretation would read the clause, ". . . if the same is known to to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been authorized by the owner of the property. . ." as the first of two criteria to be met to establish a violation. The second criteria would consist of proof that the encumberance was recorded maliciously or for the purpose of collecting a commission, or to coerce payment of money to the broker or salesman, or for any unlawful purpose. Again the facts do not show there was knowledge by the Respondents of the falsity, or impropriety of the notice of lis pendens, as stated above. Again the facts show that the lis pendens was filed in conjunction with a law suit pending between the Respondent and the property owner, and that the court before which the action was pending refused to remove it. The file of the notice by Respondent's counsel was a legitimate method of perfecting the Respondent's claim should they prevail and obtain judgment. The facts do not indicate that the filing of the notice was malicious, coercive or for the purpose of collecting a commission. Under either interpretation, Respondents did not violate the statute. COUNT II The Respondents are charged in Count II with violation of Section 475.25(1)(d), Florida Statutes, which provides that the registration of a registrant may be suspended for up to two years for violation of a lawful order of the Commission. Clearly, the facts reveal that the Respondents had a substantial interest involved in the litigation with Perrin. The order, of the Florida Real Estate Commission to remove the notice of lis pendens substantially affected their rights in this litigation. Therefore, any final order directing Kay to remove the notice of lis pendens should have issued after an opportunity for hearing pursuant to Section 120.57, Florida Statutes. The evidence reveals that the Florida Real Estate Commission did not notice a hearing under Section 120.57, and therefore its order cannot be "lawful." The provisions of Section 475.25(1)(d) require that registrants not violate lawful orders. The Respondents have not violated Section 475.25(1)(d), Florida Statutes, by not removing the notice of lis pendens as directed by the order of the Florida Real Estate Commission.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken against the Respondent, Sam Kaye and Sam Kaye, Inc. DONE and ORDERED this 23rd day of September 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William E. Boyes, Esquire Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A. Post Office Box 3466 West Palm Beach, Florida 33402
