The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents violated a rule and various provisions within Chapter 475, Florida Statutes, as alleged in the Administrative Complaint filed by Petitioner on May 20, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Mercedes M. Powers and Patricia A. Fleck, were both licensed as real estate brokers, having been issued license numbers 0151412 and 0027277, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Fleck served as qualifying broker for Patricia A. Fleck Real Estate, 5466 Spring Hill Drive, Spring Hill, Florida, while Powers was employed as a broker-salesperson at the same firm. Douglas K. Rogers, a Spring Hill resident, was interested in purchasing a lot in a Spring Hill subdivision and observed a "for sale" sign on Lot 7 at 12287 Elmore Drive. The lot was owned by Wayne and Faith Ryden, who resided in North Hero, Vermont. Rogers contacted the Rydens by telephone in mid or late March 1997 to ascertain the price of the lot. Rogers had also seen a nearby lot for sale carrying a sign from Respondents' firm. On March 23, 1997, he telephoned Powers and inquired about another lot in the same subdivision. Powers contacted the owners but learned that they did not want to sell. After relaying this advice to Rogers, she told him that she had a listing on Lot 6; however, Rogers was not interested in Lot 6 and merely indicated he would "get back" to her later. On April 3, 1997, Rogers again telephoned Powers and told her he was interested in purchasing Lot 7, which was owned by the Rydens. Powers invited Rogers to come to her office where she would call the sellers. Powers then "ran the public record" and learned that the Rydens owned the lot. On Friday, April 4, 1997, in the presence of Rogers, Powers telephoned Mrs. Ryden and spoke with her for three or four minutes. In response to an inquiry from Mrs. Ryden, Powers indicated that if the Rydens listed the property with her, she would represent the sellers; otherwise, she would represent the buyer in the transaction. Based on Mrs. Ryden's response, Powers was led to believe that the Rydens wanted Powers to represent them in the transaction. Accordingly, she explained the arrangement to Rogers, and he voluntarily signed an Agency Disclosure form which acknowledged that he understood, and agreed with, that arrangement. With Powers' assistance, that same day Rogers executed a contract for the sale and purchase of Lot 7 for a price of $8,500.00. The contract called for the sellers to accept the offer no later than April 7, 1997, or three days later, and that the contract would close by May 15, 1997, unless extended by the parties. The contract further called for Rogers to provide a $200.00 cash deposit, which was "to be placed in escrow by 4-7-97." The contract, listing agreement, and expense report were all sent by overnight mail to the Rydens the same day. Because Rogers did not have sufficient cash for a deposit with him, he advised Powers that he would return with a check the following Monday, or April 7. Notwithstanding the language in the contract, he gave Powers specific instructions that when he delivered a check, she was to hold it until the Rydens signed the contract, and then deposit the money. This is confirmed by a contemporaneous note made by Powers which read: "Mr. Rogers will bring check Monday. Then to hold until Rydens sign contract, then deposit it." Rogers testified that he delivered check no. 3497 in the amount of $200.00 to a receptionist in Respondents' office approximately two hours after he executed the contract. He also says he got the receptionist to make a copy of the face of the check, which has been received in evidence as Petitioner's Exhibit 5. If in fact a check was actually delivered to a receptionist that day, that person lost the check and never advised Powers or Fleck (or anyone else) that one had been delivered. Indeed, until June 6, 1997, Respondents were not aware that one was purportedly delivered, and they never saw a copy of the face of the check until they received the Administrative Complaint, with attached exhibits, in May 1998. The original check has never surfaced, and it was never presented for payment to the bank. Under these circumstances, it was impossible for Respondents to deposit the check in the firm's escrow account, as required by rule and statute. According to a Division investigator, there have been other instances where a realtor denies receiving a deposit from the buyer. It can be fairly inferred from his testimony that when this occurs, if the realtor's denial is accepted as being true, the realtor will not be held accountable. At no time did Respondents ever intend to violate any rule or statute governing the deposit of escrow funds; had they known that a check had been delivered to the firm, it would have been handled in an appropriate manner. The contract technically expired on April 7, 1997, when the Rydens had not yet accepted the offer. However, on April 8, 1997, Powers again contacted Mrs. Ryden by telephone since Powers had not received a reply. Based on that conversation, which led Powers to believe that the Rydens may not have received the first set of documents, Powers re-sent by overnight mail copies of the contract, agency disclosure, and expense sheet to the Rydens with a request that they either accept or refuse the contract, but in either event, to return the contract and let her know their decision. The Rydens, however, never extended her the courtesy of a reply. It is fair to infer from the evidence that by now, Rogers had again contacted the Rydens by telephone about purchasing the lot in a separate transaction so that the parties would not have to pay a realtor's commission. Rogers telephoned Powers once or twice in April or May 1997 to ask if the contract had ever been returned by the Rydens. He made no mention of his check. Those inquiries are somewhat puzzling since Rogers was well aware of the fact that the parties intended to negotiate a separate agreement. In any event, on the reasonable belief that the contract had never been accepted, and no deposit had ever been made by Rogers, Powers did nothing more about the transaction until June 6, 1997, when Rogers telephoned her at home that evening asking for "his check." By then, he had a separate binding contract with the Rydens for the sale of the lot; he had already stopped payment on the check a week earlier; and he knew that it had never been deposited. Powers advised Rogers that if in fact his check was at the office, he could drop by the next day at 10:30 a.m. and get it from the broker. Rogers came to the office the next morning, but he arrived at around 8:45 a.m., or well before Powers expected him. In Powers' absence, the on-duty receptionist was unsuccessful in locating his file (which was in Powers' office) and the check. On June 14, 1997, Rogers sent a complaint to the Division. That complaint triggered this proceeding. It is fair to infer that Rogers filed the complaint to gain leverage in the event Respondents ever brought an action against him to recover their lost real estate commission. Unknown to Respondents, on June 10, 1997, the sale was completed, and the Rydens executed and delivered a warranty deed to Rogers and his wife conveying the property in question. For all their efforts in attempting to accommodate Rogers, Respondents were deprived of a real estate commission through the covert acts of the buyer and seller, and they were saddled with the legal costs of defending this action. In terms of mitigating and aggravating factors, it is noted that Fleck was never involved with this transaction until the demand for the check was made in June 1997. There is no evidence that Powers has ever been disciplined by the Real Estate Commission on any prior occasion. On an undisclosed date, however, Fleck received a fine and was required to complete a 30-hour broker management course for failing to adequately supervise a "former rental manager" and failing to "timely notify FREC of deposit dispute." Neither Rogers or the Rydens suffered any harm by virtue of the deposit check being lost, and the parties completed the transaction on their own without paying a commission. During the course of the investigation, Respondents fully cooperated with the Division's investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 14th day of May, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1999. COPIES FURNISHED: Herbert S. Fecker, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ghunise Coaxum, Esquire Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Charlie Luckie, Jr., Esquire Post Office Box 907 Brooksville, Florida 34605-0907 William M. Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Joseph R. Fida, III, was exclusively connected with International Land Brokers, Inc., as a real estate salesperson, from July 3, 1975, to November 23, 1975. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. On November 3, 1975, Walter J. Pankz joined International Land Brokers, Inc., as a real estate broker. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operation, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 12th day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire and Mr. Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Joseph R. Fida, III 19801 S.W. 110th Court Apartment 806 Miami, Florida 33157
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2007.
Findings Of Fact Respondent Charlene Touby was exclusively connected with International Land Brokers, Inc., as a real estate salesperson from May 23, 1975, to September 30, 1975; and again from November 17, 1975, to April 15, 1976. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. By the time respondent began her second period of employment with International Land Brokers, Inc., Walter J. Pankz had joined the firm as a broker. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 5th day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire, and Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Charles A. Finkel, Esquire 801 East Hallandale Beach Boulevard Hallandale, Florida 33009
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state agency responsible for monitoring the activities of and licensing insurance agents in Florida. The Respondent, Wallace H. Klein, was licensed, is licensed, and is eligible for licensure as a general lines agent and limited surety agent, (bail bondsman), and operates in Bradenton and Sarasota, Florida. On or about February 8, 1989, Respondent was contacted by Mrs. Barbara Camp to post bond for her husband who had been arrested for driving under the influence and was being held in the Sarasota County Jail. Respondent agreed to post the $2500.00 bond, and Mrs. Camp agreed to pay the $250.00 fee, sign an indemnity agreement and promissory note for $2500.00, and deliver title to her 1982 Plymouth automobile for which she had paid $800.00, as collateral. Mrs. Camp, along with her daughter, Myra, met with Respondent and his wife at the jail office where Mrs. Klein, who, though not a bail bondsman, prepared the documentation which was signed by Mrs. Camp, and gave her a receipt for the fee and the collateral which was identified on the form only as the title to the Plymouth. Mr. and Mrs. Klein both allege that Mrs. Camp was also told that since the car was not sufficient collateral for the bond, she would also have to deliver title to the 1975 or 1976 travel trailer in which the Camps lived. Mrs. Camp claims no mention was made of the trailer at that time, but her recollection of the salient facts is noteworthy for its selectiveness and incompleteness. According to Mrs. Klein, when Mrs. Camp indicated she did not have the trailer title with her, she was told to bring it in to Respondent's office later. On February 13, 1989, Mrs. Camp reportedly came to Respondent's office and reported she could not find the trailer title. Mrs. Klein then offered to prepare, and claims she did prepare, a Power of Attorney form for Mrs. Camp to sign for application to the Department of Highway Safety and Motor Vehicles for a duplicate title. On that same day, Mrs. Klein claims she prepared a collateral receipt for the Power of Attorney which she signed and gave to Mrs. Camp. Mrs. Camp claims she signed documentation for Respondent only one time - when she met him at the jail. She denies having signed a power of attorney; received a second collateral receipt for the power of attorney, or seeing Respondent any time other than at the jail and at the post Office. The receipt purportedly for the power of attorney to get title to the trailer, bears no model year or brand name, while the receipt given by the Respondent on February 8, 1989, admitted by Mrs. Camp, bears both the model year and brand of the vehicle for which the title was given as security. A Florida vehicle title for the trailer was issued to Mrs. Camp on February 14, 1989, one day after the purported application for the duplicate title applied for by Mrs. Klein. No copy of the power of attorney was made for the file or given to Mrs. Camp at the time it was reputedly prepared and signed. This is explained by the Respondent as being due to the fact that only one copy was made. It was sent in, he claims, and he had no copy machine with which to make a copy. All other pertinent forms are packaged NCR forms with carbon capabilities built in. Mr. Klein also indicates that when the duplicate title was issued as a result of the power of attorney and application, it mistakenly bore that name of another company owned by Respondent, which occupied another office in the building. This certificate was allegedly returned and a correct duplicate title, reflecting Respondent as lienholder, issued. No such title was presented at hearing or to the Department's counsel in response to discovery. Mr. Camp was scheduled to appear in Circuit Court on April 3, 1989 but failed to do so. By Order of the court that date, the bond posted by Respondent was estreated and the money deposited was forfeited. On April 13, 1989, by certified mail, receipted for on April 18, 1989, Respondent notified Mrs. Camp of his intent to convert the collateral, listed as the 1982 automobile and the 1975 trailer, into cash in 10 days. On April 20, 1989, while the Camps were out of town in the 1982 Plymouth, Respondent went to the location of the trailer and confiscated it. At the time Respondent took the trailer, he did not hold title to it either as lienholder or under a security agreement as he claims. His asserted belief that he held a collateral interest in it is without legitimate basis. Respondent claims he merely hid the trailer some distance away on the same property, an orange grove. Mrs. Camp claims she saw the trailer in the yard of the auto repair company where she was notified it was located. It is found unlikely that Respondent would confiscate the property for the purpose of converting it to cash to satisfy his lien interest and yet leave it, unattended, relatively near its former location. Considering the evidence presented and the relative probabilities and improbabilities thereof, and drawing all permissible inferences therefrom, it is found that the title to the trailer was not a part of the original security posted by Mrs. Camp. Only when Mr. Camp failed to report to court and the bond was estreated did Respondent, facing a financial loss not adequately secured, take the trailer and thereafter prepare the documentation to make it appear it was originally intended as security. When the Camps returned from their trip to Tennessee, they found their trailer gone and were forced to live in their car for some time because they were unable to find another place to live. Their daughter could not go to school, she claims, because all her clothes were in the trailer. This discomfiture is a direct result of Respondent's taking the trailer. On May 3, 1989, having heard that Mr. Camp would be at the Post Office to pick up a check on that date, Respondent arrested him there and delivered him to the court officials. The estreated bond was thereafter reinstated and the funds previously forfeited restored to Respondent. As a result, he attempted to contact Mrs. Camp to make arrangements to return the trailer. All his efforts to contact her went unanswered. In the interim, Mrs. Camp's landlady for the trailer lot had indicated she wanted to hold the trailer as security for unpaid rent. Since Mrs. Camp had failed to respond to his inquiries, Respondent replaced the trailer on the same site from which he had taken it. As of the date of the hearing, he has yet to return to Mrs. Camp the trailer title he claims to have received as a result of the power of attorney and application for duplicate. It is found that such a title does not exist. Respondent denies he damaged the trailer as a result of moving it. He claims there was no damage to the sewage line, (a large hose going from the trailer to a barrel buried in the ground); the water system, (a series of garden hoses); or the electrical system, (an extension cord running from the landlady's house). He also denies responsibility for the interior damage claimed, such as door hinges and the like, shown in the photographs submitted by Mrs. Camp. Notwithstanding Mrs. Camp's claim that $500.00 worth of groceries, left in the house while they were away, were stolen, Respondent denies any groceries were there other than a small amount in the refrigerator, ($5.00 value), which he discarded. It is found that if any damage was done to the trailer by the move, it would be Respondent's responsibility. However, Mrs. Camp's assertions of damage and theft have not been supported by independent evidence and the estimates of value are considered unreliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED Respondent, Wallace H. Klein's licenses and eligibility for licensure as a general lines agent and limited security agent be suspended for 90 days and that he pay an administrative fine of $1,000.00. RECOMMENDED this 6 day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6 day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0476 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this matter. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 8. Accepted and incorporated herein. & 10. Accepted and incorporated herein. Rejected as not proven. Accepted and incorporated herein. Accepted but irrelevant to the issues. Accepted and incorporated herein. Rejected as not proven. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. - 8. Accepted and incorporated herein. 9. & 10. Rejected as contra to the weight of the evidence. 11. - 14. Accepted and incorporated herein. COPIES FURNISHED: Willis F. Melvin, Esquire 412 Larson Building Tallahassee, Florida 32399-0300 James N. Casesa, Esquire 3845 Fifth Avenue North St. Petersburg, Florida 33713 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Respondent J. Donald Mayor was exclusively connected with International Land Brokers, Inc., as a real estate broker-salesman, from November 17, 1975, to February 15, 1976. During the period of respondent's employment, Walter J. Pankz, a real estate broker, was also associated with International Land Brokers, Inc. At least until shortly before respondent began work with International Land Brokers, Inc., one of the corporation's offices consisted of two rooms. The front room contained a desk for Mr. Kramer, another real estate broker, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 11 together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc., manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operation, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 5th day of August, 1977, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire and Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Sherman Bennett Mayor, Esquire, and Mr. Eugene Steinfeld, Esquire 174 East Flagler Street Suite 1007 Miami, Florida 33131
Findings Of Fact Joseph Rodriguez, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 to 604.30, Florida Statutes, and acts as a negotiating broker between the producer and the buyer. Respondent is bonded through Aetna Casualty & Surety Company, co-Respondent in this case, as required by Section 604.19, Florida Statutes. Respondent acted as broker on thirty sales of Petitioner's cabbage between May 21 and June 7, 1984. On each occasion, Respondent provided Petitioner with a written confirmation of sale which specified the buyer, the place of delivery, the amount of cabbage sold and the terms of the sale, the name of the company supplying the truck to pick up the cabbage and who was supplying the truck. On several occasions, Respondent supplied the truck. However, on all written confirmations provided by Respondent, the following appears: BROKER ARRANGES TRUCK FOR GROWER FOR CONVENIENCE PURPOSES ONLY. On June 8, 1984, Respondent contacted Petitioner's salesman, Donald Waters and ordered 150 bags of cabbage to be sold to Harvey Kaiser, Inc. Respondent was acting as a broker in this transaction between the buyer and seller. Respondent contacted Patterson Truck Brokers and ordered a truck to pick up the cabbage at Petitioner's farm on June 9 and make delivery under the terms of the sale. Petitioner could only provide 121 bags of cabbage. Respondent agreed to this lesser amount and was invoiced accordingly by Petitioner on June 9 in the amount of $272.25. The truck from Patterson Truck Brokers never arrived to pick up the cabbage. Petitioner's father, Donald A. Dunn, Jr., testified that he contacted Joseph Rodriguez on two occasions by telephone to find out where the truck was, and was told that Patterson would be sending it. Rodriguez testified that Patterson Truck Brothers had agreed to provide a truck but when they were unable, he then contacted other trucking companies, as well as other buyers, in an attempt to get a truck on June 9 or 10, or to arrange another sale of Petitioner's cabbage. However, he was not successful and the cabbage went bad. Although there was no completed sale of this cabbage and therefore he earned no brokerage fee on the transaction, Respondent paid Petitioner one-third of the invoice amount for this cabbage, $86.21, on July 23, 1984, as an act of "good faith" and in recognition of the good business relationship they had. He also informed Petitioner that Patterson Truck Brothers and Donald Waters had each also agreed to pay one-third and Petitioner should contact them for payment. Petitioner contends that it should be Respondent's responsibility to pay the entire amount still owing, $172.43. Acting as a broker, Respondent earns no commission for making arrangements to supply a truck for the convenience of the seller. He invoices the buyer, collects the total amount due from the buyer, remits the freight charge to the shipping company, and pays the seller minus his brokerage fee.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture issue a Final Order dismissing the complaint. DONE and ORDERED this 30th day of May, 1985, in Tallahassee, Florida. DONALD D. CONN 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 30th day of May, 1985. COPIES FURNISHED: Joseph Rodriguez President Golden Touch Corporation 950 Colorado Avenue Stuart, FL 33497 The Aetna Casualty & Surety Company 151 Farmington Avenue Hartford, CT 06115 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee FL 32301 Donald A. Dunn, III Route 2, Box 68 Sanford, FL 32771 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32301
The Issue The issue in this case is whether Petitioner, H.P. Sod, Inc., is entitled to payment from an Agricultural Bond issued to Respondent, PLS Landscape Services, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product, i.e., sod. Petitioner is a duly incorporated for-profit corporation in the State of Florida and is in good standing. Horacio Pereira is the putative owner of the company, referring to himself at final hearing as “the boss, the guy who tells people what to do.” Respondent is a duly incorporated Florida corporation. Its business address is 6132 Snook Court, Port St. Lucie, Florida. The only officer or director of the corporation is George J. Kijewski. Respondent is a landscaping business. From the period July 23, 2012, through October 16, 2012, Respondent purchased quantities of Bahia sod from Petitioner on numerous occasions. The dates of purchase, quantity of sod purchased, and ticket numbers for each purchase are as follows: 23 – Ticket 36930 – 10 pallets 23 - Ticket 36983 – 16 pallets 30 – Ticket 37185 – 10 pallets 1 – Ticket 36818 – 16 pallets 1 – Ticket 37276 – 16 pallets 1 – Ticket 37283 – 16 pallets 6 – Ticket 36872 – 16 pallets 8 – Ticket 37319 – 16 pallets July July July August August August August August August 10 – Ticket 37339 – 16 pallets September 4 – Ticket 37727 – 16 pallets October 15 – Ticket 38712 – 16 pallets October 16 – Ticket 38720 – 16 pallets Petitioner issued the following invoices to Respondent concerning the aforementioned purchases of Bahia sod: Invoice 6615 – July 26 – Tickets 36930, 36983 $620.20 Invoice 6640 – August 2 – Tickets 36818, 37185, 37276, 37283 - $1,420.96 Invoice 6671 – August 16 – Tickets 36872, 37319, 37339 - $1,104.24 Invoice 6735 – September 6 – Ticket 37727 - $445.12 Invoice 6875 – October 18 – Tickets 38712, 38720 - $890.24 TOTAL - $4,481.11 Respondent did not remit payments on any of the aforementioned invoices. Respondent contends that some of the sod which it purchased from Petitioner was of inferior quality or was in less quantity than ordered. Specifically, Respondent said some of the sod was wet and fell apart when being installed. He also said the wet sod resulted in some pallets containing 370 to 390 square feet of sod rather than the 400 feet that is standard on a pallet. Respondent’s testimony was general in nature, not specific to any particular shipment, and flies in the face of his on-going purchases of sod from Petitioner. Further, there was no credible evidence presented at final hearing that Respondent ever complained to Petitioner about the quality or quantity of the sod. Had he done so, Petitioner said it would have corrected the problem. Respondent did reportedly tell one of his drivers, Mr. Calloway, on occasion that the sod was wet or otherwise not up to par. However, that complaint was never provided to Petitioner so that action could be taken. Respondent acquired a bond in the sum of $5,000.00 through TD Bank, N.A. (also referred to in this matter as United States Corporation Company, as Surety). The bank was not represented at the final hearing held in this matter. No defense was raised by the bank concerning Petitioner’s attempt to attach the bond. Petitioner paid a fee of $50.00 to the Department of Agriculture to bring this action. Petitioner hired an attorney to represent its interest in this matter. The attorney charged $175.00 per hour and, as of the date of the final hearing, had billed approximately five hours of time or $875.00 in fees. Subsequent to the final hearing, the attorney submitted a post-hearing proposed order on behalf of Petitioner. The attorney expended $180.00 in costs for service of a subpoena and witness fees. The total sum demanded by Petitioner in its action against Respondent is $5,586.11. Respondent’s PRO filed in this matter asserts a number of “facts” which were not established by competent testimony at the final hearing. Those facts were not considered in the preparation of this Recommended Order.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services as follows: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $5,586.11; or If Respondent fails to timely make the aforementioned payment, the Department shall call upon TD Bank, N.A., to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the entire proceeds of the bond over to Petitioner. DONE AND ENTERED this 8th day of March, 2013, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2013.
Findings Of Fact The defendants Polly E. and Joseph J. Schwey were, during the time material herein, registered real estate brokers with the commission and during times pertinent were operating and registered with the commission t/a Schwey Real Estate, Vero Beach, Florida. During July, 1973, the defendant Joseph J. Schwey entered into an oral agreement with Mid Lakes/Mid-River Packing Company, Inc., through messengers A. Victor Cancelmo and R. D. Goolsby, officers and managers thereof, for the purchase and sale of one thousand pallet boxes for a total purchase price of $20,000.00 F.O.B. Costa Rica to be imported therefrom to Miami, Florida, on or before September 1, 1973. According to messenger Goolsby, the general manager and vice-president of Mid Lakes/Mid-River Packing Company, Inc., he entered in an agreement with the defendant Joseph J. Schwey whereby he was to pay one third of the purchase price as a down payment, the remaining one third to be paid when the pallet boxes were constructed and the remaining one third down payment to be paid upon deliverance to Miami. He testified that the $20,000.00 price was one factor and the other price that motivated him to enter into the agreement with the defendant Joseph J. Schwey was the extremely high quality of the boxes, samples of which he had observed and which were manufactured in Costa Rica. On July 10, 1973, messenger Goolsby drew a check in the amount of $2500 payable to Schwey Real Estate Escrow Account and on August 1, 1973, another check for $4000 was paid (FREC Exhibits 3, 4 and 5). According to messenger Goolsby, messenger Schwey was to begin delivery of the pallet boxes during July. Repeated efforts to obtain delivery of the boxes were unavailing and on January 18, 1974, messenger Goolsby demanded the return of the $6500 forthwith. (FREC Composite Exhibit 6). According to Goolsby, defendant Polly Schwey had no obligation to fulfill the terms of the contract. In this regard he testified on cross- examination that the agreement was solely between defendant Joseph J. Schwey and the officers of Mid Lakes/Mid-River Packing Company, Inc. He testified that Joseph Schwey's obligation was to have the boxes manufactured by a manufacturing firm in Costa Rica to his specifications. Goolsby was told by defendant Joseph Schwey that the manufacturer went bankrupt and was unable to recover his $6500 down payment which he had turned over to the manufacturer. In this regard, the testimony revealed that Mid-River Packing Company placed no restrictions on how the $6500 down payment was to be spent. In any event, no directives were given by Mid-River Packing Company that the money was to be held in escrow until delivery of the pallet boxes was effected. To this date, delivery of the pallet boxes has not been made and, in fact, the defendant Joseph Schwey caused to be executed a sworn affidavit that the manufacturer went bankrupt and he was unable to recoup any of the $6500 down payment paid to the manufacturer. He testified that the purpose of the check was to make a deposit to the manufacturer who was to construct and export the pallet boxes from Costa Rica to Miami, Florida.
Conclusions The record herein fails to establish that the Defendants Joseph and Polly Schwey engaged in acts and/or conduct violative of Chapter 475.25(1)(a) and (c), F.S., as alleged. By the complaining witnesses' own testimony, the $6500.00 payment was to be advanced to the manufacturer as a pre-payment to commence construction of the pallet boxes. (Exhibit B of Defendant Polly Schwey's motion for continuance) While this statement is not per se evidence that the pre-payment was tendered to the manufacturer, no evidence was offered to the contrary and of course the burden of proof in these cases rest with the Commission. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In this regard the proof is lacking. No evidence was entered to establish the complaint allegations that the pre-payment was to be held in trust or escrow as alleged. Finally, the evidence reveals that Defendant Polly Schwey was in no way obligated pursuant to the contractual agreement with Mid- River Packing Company to supply the pallet boxes. Based on this record it can only be concluded that pursuant to an agreement between Joseph Schwey and Mid- River Packing Company, Defendant Joseph Schwey received an agreed upon payment which was tendered to the manufacturer. Prior to delivery of the pallet boxes the manufacturer went bankrupt and Defendant Schwey was unable to obtain a refund of the pre-payment. I shall therefore recommend that the complaint filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 16th day of December, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1977.
Findings Of Fact Respondent Paul V. Stephenson, III was exclusively connected with International Land Brokers, Inc., as a real estate salesperson, from October 18, 1974 until no later than February 12, 1975. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operation, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salesperson worked free lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 19th day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON,II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire and Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Paul V. Stephenson, III 4160 Northwest 79th Avenue Apartment l-G Miami, Florida 33166
