Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE IHEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25 Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto aa: = Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this \o- day of ‘ ‘ ( X MGause £ , 2009. {De Mag \ ‘shewp OS) Debbie We Ms Clerk Department of Management Services (850) 487-1082 2 of 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS JOAN BROMANTE, Petitioner, v. CASE NO. 08-6047 DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Respondent. / PETITIONER’S NOTICE OF WITHDRAWAL OF PETITION Petitioner, Joan Bromante, through undersigned Counsel, hereby files this Petitioner’s Notice of Withdrawal of her Petition without prejudice. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on JuLY 21*, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. | also certify that the foregoing document is being served this day on all counsel of record identified in the attached service list via transmission of Notice of Electronic Filing generated by CM/ECF and via e-mail to Larry D. Scott, Esq., Asst. Gen’] Counsel, DMS, Division of Retirement, 4050 Esplanade Way, Suite 160, Tallahassee, FL 32399- 0950. By: s/Jane Letwin, Esq, FLA.BAR NO. 990329 Law Office of Jane M. Letwin Attorney for Plaintiffs 5426 SW 25" Avenue, Fort Lauderdale FL 33312 Tel: 954 297 4057; Fax: 954 301 8401 EXHIBIT Filed July 21, 2009 8:00 AM Division of Administrative Hearings. "a" SERVICE LIST Marylin Batista- McNamara, Esq. Office of the School Board Attorney 600 SE Third Avenue, 11'" Floor Fort Lauderdale Fl 33301
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
The Issue The issue presented herein is whether or not the Respondent aided or abetted an unlicensed person(s) to evade the provisions of Chapter 489, Florida Statutes, and whether or not the Respondent was the subject of disciplinary action taken by the local Metro-Dade County Construction Trade Qualifying Board and, if so, what, if any, disciplinary action should be taken.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. By its Administrative Complaint signed August 3, 1983, Petitioner filed its two-count Administrative Complaint charging the Respondent with engaging in acts and conduct violative of Chapter 489.533(1)(f), (j), (k), and (n), Florida Statutes (1981). During times material herein, Respondent was, and continues to be, a registered electrical contractor and has been issued license number ER 0034149. On or about July 12, 1982, Donald Holstein provided a verbal estimate to Richard R. Seiter for the installation, by Holstein, of all electrical services in an addition located at 1160 NW 137 Street, North Miami, Florida, for an estimated cost of $1,000 for such services. On that date, Seiter paid Holstein $300 by check as a partial down payment on the $1,000 price quoted by Holstein (Petitioner's Exhibit 5). On July 12 Respondent applied for an electrical permit to perform the electrical work on the addition to the Seiters' home (Petitioner's Exhibit 6). During times material hereto, Respondent was not under contract to perform the electrical work on the Seiters' home nor was Respondent an employee or employer of Holstein. Also, Respondent and Donald Holstein were not engaged in a partnership to provide electrical contracting services. On or about July 15, 1982, Donald Holstein reduced to writing the verbal estimate provided to the Seiters (Petitioner's Exhibit 4). On that date, the Setiers paid Respondent $250 which represented the remainder of the $550 down payment which was to be applied toward the $1,000 price quoted by Holstein for the electrical services. The electrical work for the Seiters was partially performed by Donald Holstein. Respondent performed no work on the Seiters' home either in the way of supervision or in the actual "hands-on" performance of the electrical work contracted for by Holstein. Donald Holstein is not registered or certified as an electrical contractor with the Electrical Contractors' Licensing Board nor is he licensed to engage in the business of electrical contracting in Dade County, Florida. On April 5, 1983, the Metropolitan Dade County Construction Trades Qualifying Board (B) Division met and after a hearing, with notice to Respondent, found Respondent guilty of violating Section 10-22(H)(1) of the Code of Metropolitan Dade County by aiding and abetting an unlicensed contractor. Respondent's Certificate of Competency was suspended by that Board for six (6) months 1/ (Petitioner's Composite Exhibit 3).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner enter a Final Order requiring Respondent to pay an administrative fine in the total amount of $500 for the violations found herein. DONE AND ENTERED this 26th day of September 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of September 1984.
The Issue Whether the map of reservation for the proposed Northwest Expressway filed in July, 1988 by the Tampa-Hillsborough County Expressway Authority is unreasonable or arbitrary and denies a substantial portion of the beneficial use of the property including the map of reservation.
Findings Of Fact In 1983, Petitioner acquired a parcel of land abutting Lakeshore Road and Van Dyke Road in Hillsborough County as a site for a proposed new Methodist Church (Van Dyke Church). The area of this site is approximately 9.3 acres. Plans were prepared for the development of this site for the Van Dyke Church with Phase One plans completed in 1986. (Exhibit 3). Petitioner became aware of the hearings involving the location of the Northwest Expressway and Petitioner's representatives attended some of the hearing held by the Expressway Authority. When it became known that the alignment selected for the Northwest Expressway would pass through Petitioner's property, another site in the same general area was acquired. Plans for the Van Dyke Church were modified to fit onto the newly-acquired property, but the same basic plans were utilized. The new church was completed in December, 1987. Petitioner was starting a new church and did not want to erect a church that would have to be relocated in a few years. Furthermore, by leaving the Van Dyke site vacant, there would not be additional costs to the Expressway Authority which would accrue when the authority acquired the developed property. The right-of-way for the proposed Northwest Expressway runs almost through the middle of Petitioner's property and occupies nearly half of the total area of the site. Since the property was of no use to Petitioner as a church site, attempts were made to sell this property. These attempts were unsuccessful due to the now well known alignment proposed for the Northwest Expressway. The filing of the map of reservation in July, 1988 precluded the use of Petitioner's property for its intended purpose as no building permits could thereafter be obtained for this property.
Recommendation It is RECOMMENDED that the Petition of the Tampa District Board of Missions to find the map of reservation for the Northwest Expressway, filed by the Tampa- Hillsborough County Expressway Authority, to be unreasonable or arbitrary and that it deprives Petitioner of substantial portion of the beneficial use of its property, be denied. DONE AND ENTERED this 21st day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 21st day of June, 1989. COPIES FURNISHED: Mark P. Buell, Esquire First Union Building, Suite 1400 501 East Kennedy Tampa, Florida 33601 William J. McLean, Esquire Post Office Box 21 Tampa, Florida 33601
Findings Of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issue license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a cor- poration licensed as a real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,2.5] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January 1979 through August 1980. (T-19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34) Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T 31,32) On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd., seller, and Buck Creek Development Corporation, buyer. (Respondent's exhibit #8) Respondents did not have a co-buyer agreement with Rider and Opitz nor with Ms. Bell. (T-20,40,41) Charles Alario offered Phyllis Bell a referral fee to be paid to her broker of record. (T-41, Respondents' exhibit #6) This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18,20,21, Respondent's exhibits #1 and #9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's exhibits #4 and 5) A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's exhibit #6) Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island parcel, and against Knight Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52-54)
Findings Of Fact Petitioners own certain property located at Section 1, Township 28 South, Range 17 East, in Hillsborough County, Florida, consisting of approximately 2.06 acres. Its specific location is in the Carrollwood area of northwest Hillsborough County, fronting on Ehrlich Road. Petitioners' property is located within the right of way of the Northwest Hillsborough Expressway as shown on the map of reservation filed by Respondent on July 8, 1988. Respondent is an expressway authority created under Chapter 348. Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The subject property was purchased by the Petitioners on December 19, 1977 for a total purchase price of $13,700, and was refinanced in 1983 at 12% interest on a 12 year mortgage in the amount of $40,000. The monthly payment on this mortgage is $525, and taxes in 1987 were $383.64, but are proposed to increase to $697 for 1988. The property in question has been zoned "Agricultural" at all times material hereto, and is undeveloped. Petitioners originally purchased this property to build their home on, but in fact they purchased a home in Tampa, Florida, and have held this property for investment. In 1983 and 1984, they listed this property for sale, and received a contract to purchase the property for $235,000, contingent upon its rezoning for multifamily use. When the proposed location for the Expressway began to be a matter of public knowledge in 1985, however, the buyers under this contract to purchase backed out, and the property has never been rezoned. This property has not been listed for sale since 1985 due to the Petitioners' feeling that they would not be able to sell it because of the possibility of the Expressway being located in the area. Petitioners attended a public hearing held by Respondent on May 12, 1988, at which time the specific location and right of way for the Expressway was available for review and was discussed. On July 12, 1988, four days after the map of reservation was filed by the Respondent, Petitioners obtained a construction permit from Hillsborough County to build a residence on the subject property. This permit is contingent upon the payment of certain environmental fees, which have not yet been paid by Petitioners. They obtained the approval for their construction loan in the amount of $78,000 in October, 1988 in order to proceed with plans to build a residence on this property, but no construction had begun and the loan had not been finalized at the time of hearing. Nevertheless, these actions evidence the present intention and desire of the Petitioners to develop the subject property as their new residence. Petitioner Danny M. Melvin testified that he and his wife have considered moving from Florida, and locating employment elsewhere, although they have no specific offers or opportunities. They feel, however, that it is not financially feasible for them to move and relocate as long as they are still making mortgage payments on this property. Therefore, they desire that the Respondent purchase their property as soon as possible.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioners the relief sought, and within 180 days either acquire the Petitioners' property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th of January, 1989. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1989. COPIES FURNISHED: Danny M. Melvin 2905 West North Street Tampa, Florida 33614 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
