Findings Of Fact The Respondent, Nelye Bunch, is a licensed real estate broker, having been issued license number 0315615. The Respondent, AA Real Estate, Inc., of Kissimmee, is a licensed corporate real estate broker, having been issued license number 0214153. In December of 1980, Grace Makuch, a licensed real estate salesperson, entered into an employment agreement with the Respondents, whereby Grace Makuch became employed as a real estate salesperson in the brokerage office of the Respondents. Pursuant to this employment, Grace Makuch and the Respondents entered into an oral agreement in which Grace Makuch would be compensated by receiving 60 percent of the selling broker's commission on every real estate sale she brought into the office. On or about March 6, 1981, Grace Makuch negotiated a contract for the sale of real property on Nova Road in Osceola County, Florida, between Earl Croft and his wife, as sellers, and Larry Henninger, as buyer, for $96,200. This transaction closed in April of 1981. The Respondents received the real estate commission due, in the amount of $4,810, and paid Grace Makuch $1,154.40. Under the employment agreement, Grace Makuch should have been paid $2,886. Demand for the balance due of $1,731.60 has been made by Grace Makuch and her attorney, but nothing further has been paid by the Respondents. In February of 1981, Grace Makuch negotiated a contract for the sale of real property on Donegan Avenue in Kissimmee, Florida, between Michael F. Sweeney, Trustee, as seller, and Dominick Tattoli and his wife, as buyers, for $115,000. This transaction closed in May of 1981. The Respondents received the real estate commission due, in the amount of $5,000 and tendered to Grace Makuch a check for $250. Under the employment agreement, Grace Makuch should have been paid $3,000; thus, she refused to accept the check for $250. Demand for the full amount of her share of the commission on this transaction in the amount of $3,000 has been made by Grace Makuch and her attorney, but nothing has been paid by the Respondents.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 0315615 held by Nelye Bunch, be revoked. It is further RECOMMENDED that license number 0214153 held by AA Real Estate, Inc., of Kissimmee, be revoked. THIS RECOMMENDED ORDER entered this 8 day of October, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of October, 1982. COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741
The Issue The issue in this case involves the administrative charge which has been placed by the Florida Real Estate Commission in the person of Harold T. Mooney, against one Claude Talmadge Bray who is registered with the Florida Real Estate Commission as a real estate broker. The charging document which is drawn in the form of an information, says in pertinent part: COUNT ONE "(1) That the defendant did, on or about May 21, 1974, file his sworn application for registration as a real estate broker with the Florida Real Estate Commission on a form provided by said Commission. Question 16(a) of the application read as follows: 16(a) Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for the 12 consecutive months within 5 years next prior to the date of this application? If yes, who was the registered broker and what is his business adress? The defendant answered "yes" to the first part of the above question and "Tony Vaughan - Monteverde, Florida" to the second part of such question on his said application for registration. That thereafter the application of defendant, Claude Talmadge Bray, was approved and he subsequently received his registration as a real estate broker, being initially registered as1 such with the Commission on or about September 18, 1974. That, at the time of the execution of the application as aforesaid, the defendant knew or should have known that his answers to question numbered 16(a) thereof were false and untrue in that: From September 10, 1971, to June 30, 1974, inclusive, defendant Claude Talmadge Bray was a full-time employee of Hallmark Leisure Homes, Inc., a construction company with offices at 3744 North 40th Street, Tampa, Florida 33610. While the defendant did register with the Commission as a real estate salesman employed by Lester Tony Vaughan, a registered real estate broker whose last business address is registered with the Commission as Division Street, Monteverde, Florida, 32756, said registration was effected solely for the purpose of attempting to show to the Commission that the defendant wads in compliance with the apprenticeship requirements of Subsection 475.17(3), Florida Statutes; but that, in truth and fact, the defendant Claude Talmadge Bray had served no apprenticeship as required by, and within the intent and meaning of said Subsection 475.17(3), Florida Statutes, with the said Lester Tony Vaughan or any other registered real estate broker, and that the defendant, during said period of purported apprenticeship, had not handled any real estate transactions participated in any closings or received any instructions from, for or on behalf of the said Lester Tony Vaughan, Registered Broker. That by reason therof, it appears that the defendant1 Claude Talmadge Bray, does not possess the necessary qualifications of honesty, truthfulness, trust worthiness and good character as required by Subsection 475.17(1), Florida Statutes; has been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or device, in violation of Subsection 475.25(1)(a), Florida Statutes; and that the defendant obtained his registration as a real estate broker with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation Of Subsection 475.25(2), Florida Statutes. WHEREFORE, plaintiff prays that this Information be filed and notice of the filing thereof be given to the Defendant and that proceedings be had, all in accordance with the provisions of Chapter 475, Florida Statutes, and if the evidence warrants, the registration of Claude Talmadge Bray be revoked." The Respondent has denied the allegations set forth in the charging document, which is entitled an information, and proceeded to a hearing before the Division of Administrative Hearings in the person of the undersigned, under authority of Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner presented its case on the basis of oral testimony presented at the hearing and through tangible items of evidence. The Respondent elected to present evidence in the course of the hearing, and did so through the medium of oral testimony in the course of the hearing and through tangible evidence, which was the subject of a stipulation with the Petitioner. The first witness presented by the Petitioner was Ralph J. Ramer, President of Hallmark Leisure Homes, Inc. Mr. Ramer was the former employer of the Respondent, and additionally was responsible for making a complaint which led to the investigation of this case by the Petitioner. This complaint was in the form of a letter from the witness, Ramer, addressed to the Petitioner and dated July 3, 1974. A copy of this letter has been received by the hearing officer as a Joint Exhibit of the Petitioner and Respondent and Is therefore made a part of the record in this cause. Mr. Ramer indicated that he had hired the Respondent on September 10, 1971, as a salesman with the witness's then existing company, and that the Respondent had been promoted to a vice president's position in 1971 or 1972 after the incorporation of the witness's company. It was further related that the Respondent was terminated from employment by the witness on June 30, 1974. During the course of the Respondent's employment with Hallmark Leisure Homes, Mr. Bray participated in a position which had as its major function the sale of construction contracts for the purpose of building homes on real estate which was held by the purchaser. In addition, when the Respondent became Vice President he made certain connections with the bank, in that he talked with the officers of the banks relative to financing. More specifically, Bray presented sales papers to banks, he followed up on proposed financing, he attended closings of loans if necessary, he took credit statements for potential purchasers, ordered surveys, ordered titles, ordered insurance, prepared deeds, prepared mortgage documents, worked with appraisers, conducted closings and he picked up certain bank draw disbursements from the lending institutions. At these closings, as aforementioned, mortgages were signed and funds were disbursed. In relation to the question of whether or not Mr. Ramer's company and, more particularly, Mr. Bray, were involved in the active sale of real estate, he said that salesman could assist a potential customer in finding land to build houses on. Ramer also indicated that the company, Hallmark Leisure Homes, Inc., had bought four lots in Ocala and had built three houses on these lots. The cause for dismissal of the Respondent, according to Mr. Ramer, was for the reasons set forth in the letter of July 3, 1974, by the witness. Ramer further elaborated that he didn't know that Lester L. Vaughan had made application for professional license to the Florida Construction Licensing Board, while Vaughan was working for Ramer. Therefore, when he found out that Bray was working full-time for the witness and at the same time helping other employees to obtain a contractor's license, which was felt to not be in the best interest of the company because it would promote competition against the company through the employee of the company, Ramer dismissed the Respondent. In response to questions concerning the existence of a certain civil suit filed by the Respondent against Mr. Ramer, the witness acknowledged such a suit, but stated that he had no sense of vendetta against the Respondent. While the Respondent was employed with Hallmark Leisure Homes, the Respondent was preparing for a real estate license exam and serving an apprenticeship according to Lester Vaughan, the younger At the same time there were negotiations with the officials at Hallmark Leisure Homes, in particular, Mr. Ramer, for the purpose of qualifying the real estate broker's license of Lester T. Vaughan in establishing a branch office at the Hallmark Leisure Homes office location on North 40th Street, Tampa, Florida. Moreover, Mr. Ramer was in favor of this arrangement and it didn't appear that these negotiations to establish such an office were in any way designed to defraud the public from Vaughan the younger's observation. When the witness, Lester Vaughan, was specifically asked questions about the nature of the sales in which the Respondent participated, he stated that the sales were not the sale of real estate per se. However, he did indicate that there was a similarity in his mind to the sale of real estate and the sale of "on your lot construction contracts", and he stated this opinion from his knowledge of the function of a real estate broker, being a real estate broker himself. As a matter of fact, the witness felt that the function performed by the Respondent, Bray, was much more detailed than the function of a real estate broker in carrying out the broker's duties. Another significant comment by the witness was his statement that the contract form used by Hallmark Leisure Homes was similar to the form utilized for real estate contracts, testifying from his knowledge. In closing, the witness testified that he and the Respondent had looked for lots to be purchased to build homes on for prospective customers, but that they were never successful in achieving such an arrangement. The Petitioner placed Lester T. Vaughan on the stand, who at the time of his testimony was also charged by the Florida Real Estate Commission in Progress Docket #2671 for Hillsborough County, with an offense relating to the apprenticeship of Claude Talmadge Bray. The witness, Lester T. Vaughan, indicated that he was not working at the time of his testimony, but he had been and office worker for a citrus company. He has been a licensed real estate broker since August of 1972; however, he has never transacted any real estate sales. The witness was shown Petitioner's Exhibits "B", "C", "D", and "E" and identified those documents. Exhibit "B" is a reference statement signed by the witness upon the request for application to be a real estate broker made by Claude Talmadge Bray before the Florida Real Estate Commission. Exhibit "C" by the Petitioner is an application for a branch office registration certificate. Petitioner's Exhibit "D" is a declaration of employment for apprenticeship purposes and Petitioner's Exhibit "E" is a statement of the. applicant's employment and apprenticeship by the witness, Lester Tony Vaughan. (All these documents are copies of the originals). Lester T. Vaughan indicated that the Respondent, Bray, had not made any real estate sales while in his employ and that the figures in the affidavit which is Petitioner's Exhibit "E", were transactions mad Respondent was working with Hallmark Leisure Homes. The witness then testified that the Respondent told him that these were sales while in the employ of Hallmark Leisure Homes and further that he, the Respondent, could use those sales as a basis for stating experience in applying for a Real Estate Broker's License, even though they were not sales of real estate. Lester T. Vaughan testified that he had not talked with Mr. Ramer about locating a branch office on North 40th Street, Tampa, Florida, at the business of Hallmark Leisure Homes, but to his knowledge Mr. Ramer had never voiced any objection to such a branch office at that location. Lester T. Vaughan stated that he had never examined the contract forms or the closing statements utilized by Hallmark Leisure Homes. He had however talked with the Respondent 4 or 5 times in Tampa and several times at his, the witness's home address, about real estate related matters. At the close of the Petitioner's case, the Petitioner offered into evidence Exhibits "A" - "E", all of which have been particularly described, in the course of the findings of fact, with the exception of Exhibit "A" for identification, which is the application for registration as a real estate broker which was filed with the Florida Real Estate Commission by the Respondent, Claude Talmadge Bray. These items of evidence were admitted as evidence after examination and legal argument as will be further described in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent made certain motions at the Inception of the case directed to the sufficiency of the charging document and renewed these motions at the close of the Petitioner's case. These representations by the Respondent will be considered in the section entitled CONCLUSIONS OF LAW. The Respondent offered witnesses in support of his position in the form of a witness to the facts contained in the allegations placed against the Respondent and certain character witnesses in his behalf. The Respondent further elected to take the stand in his own behalf. (All matters offered by the Respondent were premised on the eventuality that the Hearing Officer and/or the Florida Real Estate Commission did not agree with the Respondent's contention that the Petitioner had failed to meet its burden of proof, either in the statement of its pleadings or through presentation of its case in chief). The presentation of testimony on the facts related in this matter was a brief recall of Lester T. Vaughn for purposes of testifying about the facts surrounding the apprenticeship. In this recall Lester T. Vaughan indicated that he felt that the Respondent was a smart young man, by way of responding to a question on the necessity for close supervision of the work by the Respondent. As a follow up he indicated that the broker apprentice did not need day to day supervision. Finally, the witness stated that he felt that bray would have called him if he had needed help from the witness. When the Respondent took the stand, he testified that he is now employed with Ruby V. Williamson, a real estate broker, and that he has been so employed for 6 months as a realtor associate. A brief statement of his background prior to his present employment indicated that he had received formal education to include a bachelors degree and some graduate work, although It was not clear from the testimony that he received a graduate degree. Additionally, it was net established if the formal education had any significance in real estate work. Some of the positions held by the Respondent included work in educational television, teaching, sales positions, and eventually work with Jim Walter Corporation in home sales. While with Jim Walter he served as a branch manager of the offices in Lake City, Florida, Orlando, Florida, and Fredricksburg, Virginia, in the home construction division of that corporation. After leaving Walter Corporation he worked briefly at Allstate Homes and then started with Hallmark Leisure Homes in 1971. At the beginning of his employment with Hallmark Leisure Homes they were a partnership and later became a corporation. The Respondent stated that he started as a salesman with Hallmark Leisure Homes and was elevated to the position of vice president in that corporation at a later date. In his employment with Hallmark Leisure Homes he said that the officials at Hallmark Leisure Homes thought that real estate expertise was an advantage aid, moreover, that to locate a real estate branch office at their business address on North 40th Street, Tampa, Florida would be advantageous. His involvement with real estate licensing started with the issuance of a real estate salesman's license from the Florida Regal Estate Commission in 1971. After that time he decided to qualify for a real estate broker's license before the Florida State Real Estate Commission, and selected Lester T. Vaughan as his apprenticing broker on the basis of a suggestion made by Lester Vaughan, his coworker. For the record, Lester Vaughan is the son of Lester T. Vaughan. Hue indicated that he spoke to other realtors about the apprenticeship, in addition to conversations with Lester T. Vaughan. Two of these persons, Pearl Elliston and Clay Cordington were asked about their interpretation of the form which is Petitioner's Exhibit "E", relating to the numbers of real estate sales and attendance at closings of real estate sales. The Respondent stated that Mr. Cordington felt that the Respondent's experience with selling "on your own lot homes" was sufficient experience to be counted in responding to the form which is Petitioner's Exhibit "E". The witness felt that the reason for this response was because of the familiarity of Mr. Cordington with the work the Respondent was doing, in that the Respondent had sold Mr. Cordington two houses. The Respondent stated that Mrs. Elliston did not give him a definite answer on his inquiry. Furthermore the witness Indicated that he called the Florida Real Estate Commission office, particularly the licensing department, about what the blanks meant on the form which is Petitioner's Exhibit "E" and the blanks Involved with numbers of real estate sales, closings attended, and hours of instruction, and ethics and office operations etc. The witness stated that he spoke with some lady in the department that didn't seem to know what to do about that particular form. Upon the undersigned's examination of the witness on the question of whether or not he referred this matter to the superior of the lady who answered his inquiry, the witness responded that he did not. By way of elaboration on the forms, the Respondent testified that he looked at the Land Book in order to comply with the matters set forth in the forms. The witness seemed to place emphasis on the fact that when he was provided with Petitioner's Exhibit "D", he was told that this was the only necessary form to be completed as part of the requirement for becoming a licensed real estate broker in the State of Florida, for that reason he seemed somewhat baffled by the form which is Petitioner's Exhibit "E". The witness went into some detail to explain how he arrived at the figures on the form which is Petitioner's Exhibit "E". Put concisely, the witness testified that the basis for the figures 56 and 24 upon Petitioner's Exhibit "E" were arrived at by examining "on your lot home sales" made while employed by Hallmark Leisure Homes and closings that he attended in connection with those sales. The figure 100 hours was arrived at by estimates in discussions with Lester T. Vaughan and lecture type course attendance. Bray stated that the figures on that form, Petitioner's Exhibit "E", had been discussed with Lester T. Vaughan, Ramer and Weisiger, another official at Hallmark Leisure Homes. There are other matters which constituted Involvement with real estate sales, but none of these listings were ever consummated through a real estate sale. Moreover, these figures involving listings for Hallmark Leisure Homes and Listings by the Respondent privately were not reflected in figures on Petitioner's Exhibit "E". The Respondent seemed to, under questioning of whether the sales reflected in Petitioner's Exhibit "E" were real estate sales, be convinced at the time of hearing that the sales were not real estate sales per se, although at the time he was making the representations on Petitioner's Exhibit "E" he did not seem as convinced of that fact. Nevertheless, because of the real estate related nature of the work done for Hallmark Leisure Homes, and because in many respects the witness felt that his function was more comprehensive than that of a real estate broker, he felt that the experience with Hallmark Leisure Homes was work which was a fulfillment of the requirement for apprenticeship. Finally, the witness indicated that at the time he filled out the various forms for the Real Estate Commission that he had no intent to defraud or mislead by offering the statistics that he had set forth. Testimony was offered by one Clifford Opp, Jr., Esquire, who has known the Respondent since he was 14 years old, to the extent of being in business with the Respondent, in a restaurant venture which was unsuccessful. He further stated that he, did not feel that the Respondent would provide false information to the Real Estate Commission. Although the witness had been in a confidential relationship with Hallmark Leisure Homes, as their attorney, and therefore unable to divulge any confidences; nevertheless, stated that he didn't recall any report of the company about the Respondent's conduct. In summary, the witness felt that the Respondent was trustworthy. Wilbur J. Wells was called on behalf of the Respondent. Mr. Wells had been a coworker at Hallmark Leisure Homes, in addition to being in the same fraternity in college with the Respondent and in the restaurant business with the Respondent. Mr. Wells is now a realtor associate and has a real estate salesman's license issued by the Florida Real Estate Commission. He says that the Respondent's character in terms of truth and veracity is outstanding and that the witness did not believe that the Respondent would lie to the Real Estate Commission. Ruby Williamson, the present employer of the Respondent was called. Ruby Williamson is a real estate broker, and she has known the Respondent for 6 or 7 years, and feels that the Respondent has an excellant reputation and would not lie to the Real Estate Commission. Assuming the application of the cited statutes in the complaint, from the testimony set forth in the hearing it would appear that the Respondent did not intend to defraud, misrepresent, conceal, act under false pretenses, deal dishonestly or trick, unlawfully scheme or device, in violation of Section 425.25(1)(a), Florida Statutes, nor did the applicant intend to defraud, misrepresent, or conceal in violation of ss.425.25(2), Florida Statutes. Moreover, there has been insufficient showing that the Respondent lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character as required by ss.425.17, Florida Statutes. The facts show that the Respondent sought advise from practicing real estate brokers in Florida and the Florida Real Estate Commission before filling out Petitioner's Exhibit "E", and these facts are unrefuted. He acted upon that information about the exhibit in good faith. Considering the testimony of the relationship of the Respondent to Lester Tony Vaughan, his apprenticing broker, the Respondent was legitimately receiving counsel and acting in the employ of Lester Tony Vaughan, notwithstanding, the fact that the pursuit failed to consummate any real estate sales. The facts also Indicate that the Respondent received adequate supervision from Lester Tony Vaughan, because Florida Statutes, Chapter 475 and its rules and regulations do not require full time supervision or employment in qualifying for a real estate broker's license in Florida. The six or seven visits and conferences between Lester Tony Vaughan and the Respondent were sufficient compliance for a man in the Respondent's position considering the relationship of the sales activity he was performing for Hallmark Leisure Homes to the sale of real estate proper. Finally, certain evidential items were offered in behalf of the Respondent. The first item was the letter dated January 3, 1974, written by R. J. Ramer, President of Hallmark Leisure Homes, Inc., addressed to the Florida Real Estate Commission. This letter has been received as a Joint Exhibit of the parties upon joint stipulation of the parties and has been marked as Joint Exhibit "1". A second document was offered by the Respondent in the form of a letter addressed to the Florida Construction Industry Licensing Beard on the subject of Lester Vaughn's application for license. This letter was written by R. J. Ramer, President, Hallmark Leisure Homes, Inc. This particular correspondence was not admitted far reasons set forth in the section entitled CONCLUSIONS OF LAW.
Recommendation Based upon the foregoing, it is recommended that the Respondent, Claude Talmadge Bray, be released from the charges brought under Progress Docket #2658, Hillsborough County, and that the Respondent go forth without penalty against his registration as a real estate broker in the State of Florida and that his certificate as broker-salesman remain in full force and effect. DONE and ENTERED this 2nd day of January, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire (For the Commission) Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David Luther Woodward, Esquire Rose and Woodward, Chartered 1211 The Madison Building Tampa, Florida 33602
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed March 1, 1982, the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to suspend, revoke or take other disciplinary action against Donna Migone and Pedro Realty, Inc., as licensed real estate salesperson/corporation, respectively, who have been issued License No. 0304648. 2/ On August 8, 1980, Mrs. Mary Perez, c/o Douglas Spring, Esquire, 15211 N.W. 60th Avenue, Miami Lakes, Florida 33014, entered into a listing agreement with Respondents Migone and Pedro Realty, Inc., for the sale of Mrs. Perez' property located at 414 West 67th Street, Hialeah, Florida. The asking purchase price of the subject property was $69,900. On August 18, 1980, Mrs. Perez was presented with a contract for the sale of her residential property by Donald E. Morton, a licensed real estate broker employed by International Realty Association and Investment Corp. and Respondent Donna Migone, the listing salesperson for Respondent, Pedro Realty, Inc. The contract/offer presented was for the sum of $66,000. Mrs. Perez reviewed the contract/offer presented by Respondent Migone and thereafter Respondent Migone filled out a form entitled "Approximate Seller Expenses" to explain to Mrs. Perez how the proceeds of the sale would be disbursed. During this explanation, Respondent Migone computed the commission due herself and Donald Morton both on the basis of a sales price of $56,000 and $66,000 pursuant to the contract/offer presented. In this regard, Mrs. Perez agreed to hold a $10,000 second mortgage to assist the purchasers in securing the financing to purchase the property. During that time, August 18, 1980, the purchasers gave Donald E. Morton a $4,000 purchase-money deposit for the subject property to be held in escrow until closing. On December 5, 1980, the closing occurred in a typical manner whereby the seller and the buyer separately delivered their respective documents and monies to the Amerifirst Federal Savings & Loan, 900 N.E. 125th Street, Suite 200, North Miami, Florida. There was no formal gathering of the parties and Respondent Migone and Donald E. Morton were notified on or about December 10, 1980, by Mrs. Perez' attorney, Douglas Spring, that the closing had occurred. Respondent Migone and Donald E. Morton computed the commission on the basis of six percent (6 percent) of the full purchase price of $66,000. This amounted to $3,960 as computed by Respondent Migone on one of the two net sheets presented to Mrs. Perez. On December 18, 1980, Respondent Migone and Donald E. Morton were paid $1,980 each from the escrow fund, and Donald E. Morton sent Mrs. Perez a check for $40.00 representing the balance due her from the escrow deposit fund. Petitioner contends that the commission should have been computed by Respondents Migone and Pedro Realty, Inc., on the basis of six percent (6 percent) of the amount of $56,000 or $3,360 as reflected on one of the net sheets presented to Mrs. Perez by Respondent Migone. On this point of dispute, evidence reveals that when the contract/offer was presented to Mrs. Perez, Mrs. Perez reviewed the offer and at that time was presented with two forms filled out by Respondent Migone entitled "Approximate Seller Expenses" to reflect how the proceeds of sale would be disbursed. During this discussion, Mrs. Perez agreed to the $66,000 offer and agreed to hold a $10,000 second mortgage to assist the purchasers in completing the real estate transaction. The testimony reflects that Mrs. Perez was interested in receiving a monthly income check and the income from the $10,000 mortgage was a means whereby this could be achieved. During the course of these discussions, one of the forms computed by Respondent Migone for the commissions reflected that commissions would be computed based on $56,000 whereas another form was computed reflecting the total purchase of $66,000. A careful reading of the testimony of Mrs. Perez reflects that she understood that she would be paying the commission based on the total purchase price of $66,000 and not based on the $56,00 as the Petitioner contends. Mrs. Perez indicated that she knew that she was selling the property for $66,000 and the six percent (6 percent) commission (on that basis) was no surprise to her. (TR 33, 40, 41, 57, 65, 72, and Respondent's Composite Exhibit B). Further, Respondent Migone credibly testified that there was a great deal of discussion of the $56,000 versus the $66,000 and the manner in which the $10,000 second mortgage would be written up; however, there was no evidence presented to reflect that no commission would be paid on the $10,000 second mortgage as contended by the Petitioner other than the "net sheet" computed by Migone reflecting the commission computed on six percent (6 percent) of $56,000. Further, Respondent Migone testified that Mrs. Perez never discussed paying a commission only on $56,000 versus the $66,000 as was computed and deducted by the Respondents. A review of the documentary evidence indicates that there are no variations of the six percent (6 percent) commission of the total sales price. (TR 66)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint against the Respondents, Pedro Realty, Inc., and Donna Migone, be DISMISSED in its entirety. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
Findings Of Fact Respondent-licensee Edison Realty, Inc., was during all times material herein a corporate registered real estate broker and Respondent-licensees, Richard G. Gibbs and Shirley Puhala were registered real estate brokers with the Commission and were operating and registered as active brokers with the official capacity of President and Secretary-Treasurer respectively of Respondent- licensee, Edison Realty, Inc. See Commission's Composite Exhibit #1. Pursuant to a trust agreement dated June 21, 1971, Respondent-licensee, Richard G. Gibbs, as trustee, and Walter Johnson, as beneficiary, entered Into a trust arrangement for certain properties known as Orange River Ranchettes located In Lee County, Florida. (A copy of the trust agreement is attached to the administrative complaint filed herein as exhibit "A".) Testimony adduced during the course of the hearing revealed that approximately 300 acres were purchased which the parties subdivided into 5 acre ranchettes. Pursuant to sale of the ranchettes, approximately $200,000 to $215,000 was received and invested as trust funds. At the end of calendar year 1975, Respondent-licensee, Richard G. Gibbs, obtained without the consent or permission of the remaining trustees, approximately $127,486.74 in exchange for two promissory notes executed and delivered by Respondent Gibbs, as President of Edison Realty, Inc. (A copy of the promissory notes are attached to the administrative complaint as exhibit "B"). Although the above promissory notes are now due with Interest, Respondent Gibbs refuses to pay despite demands from the trustees. Evidence reveals further that Edison Realty, Inc., received during the course of conducting its real estate brokerage business, during the period of approximately April 23, 1976 thru March 31, 1977, escrow deposits entrusted totaling approximately $37,720.00 and an examination of its escrow account maintained at First National Bank in Ft. Myers, Florida, reveals a closing balance of $5,419.76. Evidence reveals further that Edison Realty, Inc., In the course of conducting its real estate brokerage business is In charge of the management of real property known as Parklane Village Trust, Tamiami City Trust, Union Trust, Kenwood Trust, Pindel Trust, Sancarlo Trust, Broadway Trust and Captain's Quarter. For its management responsibilities, Edison received and was entrusted with funds totaling $19,625.28 and an examination of its escrow account respecting the above trust reflects closing balance of only $5,419.76. Evidence reveals further that Respondent-licensee Richard G. Gibbs, was the only person authorized to and made withdrawals from the above trust account and that as of March 31, 1977, he converted approximately $51,932.52 to his own use or to that of some other person other than the true owner or person entitled thereto. H. Freeman Bigelow, Norma Jane Morris, Allen Higgens, Hubert R. Foster, Boyd Strasbaugh, Lorelei Jane Irons, Harriet Ann Houck were all former licensed and registered salespersons with the Commission and employed by the Respondent- licensee, Edison Realty, Inc. During the course of their employment with Edison Realty, Inc., they received as payment of their share of commissions earned, checks which were returned to them for insufficient funds. Despite repeated requests by them for their share of commissions earned, Respondent-licensee, Edison Realty, Inc. and Richard G. Gibbs, as President, has failed to honor their demands. No evidence was introduced to establish that Respondent-licensee, Shirley Puhala, by any means engaged in or assisted Respondent Gibbs in the withdrawal, conversion or other appropriations for his own use of monies entrusted to him individually or in his official capacity as a trustee or President of Respondent-licensee, Edison Realty, Inc. To the contrary, it appears that Mrs. Puhala was most cooperative in assisting the Commission's investigator in his investigation of this matter. Pursuant to the emergency suspension hearing before the Commission, Carol Arnold who is presently the President of Edison Realty, Inc., entered an arrangement with Attorney C. Michael Jackson to wind up the corporate affairs of Edison Realty, Inc. The Commission directed them to refrain from engaging in any new corporate business or activity. They were further advised to establish a trust fund for monies received to be disbursed to creditors.
Recommendation Based In the foregoing findings of fact and conclusions of law, it is hereby, recommended as follows: That the Respondent-licensee, Edison Realty, Inc., registration with the Florida Real Estate Commission as a registered real estate corporate broker be revoked. That the Respondent-licensee, Richard G. Gibbs, registration with the Florida Real Estate Commission as a real estate broker be revoked. That the complaint allegations filed herein respecting the Respondent- licensee, Shirley Puhala, be dismissed and that the suspension of her registration be vacated. RECOMMENDED this 14th day of July, 1977, In Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 C. Michael Jackson, Esquire Post Office Drawer 790 Ft. Myers, Florida 33902 Ms. Shirley Puhala c/o Edison Realty, Inc. 2373 West First Street Ft. Myers, Florida 33901
Findings Of Fact At all times pertinent hereto Respondent O'Connor was a licensed real estate broker in the State of Florida having been issued license lumber 0065137. Respondent Berg was a licensed real estate salesman having been issued license number 0391098. At all pertinent times alleged in the Administrative Complaint Respondent Berg was licensed and operated as a real estate salesman in the employ of broker Respondent Edward M. O Connor. On or about February 15, 1953, Respondent Berg entered into a contract as purchaser seeking to purchase certain real property in Charlotte County, Florida, described as: Lot 26, Block 1, Charlotte Harbour Subdivision, also known as 201 Cortex Street, Charlotte County, Florida. The property was owned by Louis J. Knetter. Mr. Knetter, as seller, was represented by Emanuel Consalvo, a licensed real estate salesman or broker. This proposed contract, contrary to the allegations of Petitioner, made no mention in its terms of any $500 binder or earnest money deposit. Rather, the contract, instead of mentioning a cash deposit, had the words "commission" clearly written on the top, being Berg's pledge to pay $300 of the real estate commission he would be entitled to on the transaction to the buyer at closing. The proposed contract was tendered to Emanuel Consalvo , the seller's agent, who examined it thoroughly with his client Louis Knetter. Mr. Knetter subsequently refused to enter into that proposed contract. Respondent Berg then made a second offer to purchase the same property which was accepted by the seller. This offer was made on April 18, 1983. The contract regarding the second offer was prepared from a rough draft which Respondent Berg had handwritten. He handwrote the word "commission" precisely as on the original offer of February 15, 1983. On the final typed copy of the contract the abbreviated word "comm.," was typed into the contract to indicate (and it was Respondent Berg's intent) that the commission to be earned by Berg would be used as a down payment at closing rather than any proposal by Berg (or O'Connor) to post $500 or other amount of cash earnest money deposit upon the offering of the contract. Respondent Berg genuinely believed that anything of value could be inserted into a contract to provide consideration and could serve as sufficient consideration therefor including his offer to pay to the buyer a part of the real estate commission he would be entitled to with regard to that transaction Neither Respondents Berg nor O'Connor made any representations or statements, verbally or written, to Louis Knetter or Emanuel Consalvo to the effect that there ever was an earnest money deposit in any amount posted by the purchaser Berg, or on account at O'Connor Realty. Kevin O'Connor, the son of Respondent O'Connor, is also a licensed real estate broker who holds a degree in the field of real estate. He established that the textbook practice and indeed, the general real estate industry custom or practice in the Charlotte County area allows for anything of value to be used as consideration for a real estate contract and that a cash earnest money deposit is not necessary. He established the industry practice with regard to the posting of earnest money deposits for real estate sales contracts and demonstrated that unless a contract, by its terms, clearly indicates that an earnest money deposit has been posted, there is no basis for a seller or his agent to assume that to be the case. Kevin O'Connor, a witness for the Respondents, had personal contact with the seller's agent, Emanuel Consalvo, regarding the transaction and established that the Respondent Edward M. O'Connor was not even in his office or in the area during the time of the contract proposal or offer. Kevin O'Connor was operating the office in the Respondent Edward O'Connor's absence. Kevin 0'Connor established that the question of an earnest money deposit was never discussed with Consalvo and that neither Consalvo nor Knetter ever raised a question during the pendency of the transaction concerning the existence of an earnest money deposit. Kevin O'Connor never told Consalvo that any money was in escrow nor did Respondent Berg or Edward O'Connor. No representation was ever made to Consalvo or Knetter, singly or jointly, to the effect that any money had been placed on deposit or in escrow with regard to either of the two offers. Indeed, Mr. Consalvo acknowledged that no one at 0'Connor Realty ever told him of any money being placed in an escrow account. The transaction ultimately failed to close because the seller failed to include all the furniture with the home as required by the contract. At that juncture, the seller demanded the supposed $500 earnest money deposit to be paid him as a forfeiture on the mistaken belief that an earnest money deposit had been posted with regard to the transaction. Such was not the case however, nor was it ever represented to be the case.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the complaint filed by Petitioner against Respondents William Berg and Edward M. 0'Connor t/a O'Connor Realty, be DISMISSED in its entirety. DONE and ENTERED this 5th day of February, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-0180 PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not in itself dispositive of the material issues presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not dispositive of the material issues presented in itself. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. RESPONDENT EDWARD O'CONNOR'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting a conclusion of law. Accepted. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Accepted. RESPONDENT WILLIAM BERG'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Elwood P. Safron, Esquire SAFRON, RODNEY & DZUPAK 306 E. Olympia Punta Gorda, Florida 33950 Jesus Hevia, Esquire WOTITZKY, WOTITZKY, WILKINS, FROHLICH & JONES 201 West Marion Avenue Punta Gorda, Florida 33950 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the post-hearing memorandum and the entire record compiled herein, the following relevant facts are found: By letter dated February 18, 1983, the Florida Real Estate Commission (sometimes herein referred to as the respondent or the Commission) advised the petitioner that his application for licensure as a real estate salesman was denied based upon petitioner's answer to question 6 of the licensing application and his criminal record. On September 1, 1982, petitioner held a Mutuel Clerk's Occupational License (NOP-00455) issued by the Division of Pari-Mutuel Wagering, Department of Business Regulation, State of Florida. While acting in the capacity of a mutuel clerk at Calder Race Course in Dade County, Florida, Petitioner, on September 1, 1982, cashed a winning one dollar ($1.00) trifecta ticket for the eighth race on August 28, 1982, valued at six hundred thirty-six dollars and eighty cents ($636.80) for Metro-Dade Organized Crime Bureau Detective, Jonas Sears, for a cash fee payable to Petitioner. Petitioner did not require Detective Sears to complete the necessary internal revenue service form W-2G which is required of any patron winning six hundred dollars ($600.00) or more. On October 22, 1982, petitioner entered into a consent order with the Division of Pari-Mutuel Wagering wherein petitioner agreed to certain findings. Based on those findings, petitioner agreed to a suspension of his pari-mutuel license for a period of seventy-five (75) days. A clerk who engages in such conduct violates Section 550.16(7), Florida Statutes and Rule Section 7E- 6.07(3)(6), Florida Administrative Code. Petitioner also admitted to deducting sixty dollars and eighty cents ($60.80) as a cash fee payable to him for not requiring Detective Sears to complete the necessary Internal Revenue Service form W-2G.
Recommendation That the respondent enter a Final Order denying petitioner's application for licensure as a real estate salesman. RECOMMENDED this 14th day of September, 1983 in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1983.
