The Issue The issues proposed by Respondent, and adopted here, are: Whether the Petitioners timely filed a proper petition with all required attachments stating whether the Respondent's actions were substantially unjustified and whether circumstances exist that would make the award unjust, pursuant to Rules 22I- 6.035(1), (2)(e) and (3), Florida Administrative Code. Whether the Respondent was substantially justified in bringing this action, or that special circumstances exist which would make an award of attorney's fees unjust, pursuant to Section 57.111, Florida Statutes (1985). The Respondent has not contested the Petitioners' allegations of standing as a "prevailing small business party" nor the reasonableness of the fees and costs claimed by the Petitioners.
Findings Of Fact On January 20, 1986, Elizabeth Yerkes and Pilar Montes, comprising the Probable Cause Panel of the Florida Real Estate Commission (FREC), found probable cause that the Respondents violated the real estate law. They recommended that an administrative complaint be filed. In the record before me, the only evidence of the panel's decision is a four-page transcript of the January 20, 1986, proceeding. Any written materials which may have been considered by the panel are not included. The entire proceeding consisted of a brief exchange, wherein counsel for the panel was assured that the members had the opportunity to review the agenda material, and the following: MR. WILSEN [Counsel for DPR]: Item 6 concerns a broker and a corporate broker. The Respondents have failed to pay a cooperating broker a real estate commission in the amount of thirty-seven thousand dollars. Additionally, the Respondents have failed to keep the thirty-seven thousand dollars in their trust account. The final judgement in the amount of thirty-seven thousand-dollars was obtained against the company in December of 1984. Therefore, the Respondents are charged with failure to account and deliver a share of a commission and failure to keep the share of commission in their real estate brokerage trust account. Therefore, recommend [sic] this Administrative Complaint be filed. MS. YERKES [Panel Member]: After reviewing the file, I find probable cause to exist in ... is it four counts. Okay. MS. MONTES [Panel Member]: I find probable cause, too, in four counts. (Respondent's Exhibit 4, Pgs. 3, 4) The Administrative Complaint was filed on February 11, 1986, alleging violations of subsections 475.25(1)(d) and (e), F.S. and Rule 21V-14.13 Florida Administrative Code, for failing to account for and deliver a real estate commission to a cooperating broker, and failing to place and maintain the funds in escrow. On May 20, 1986, the Florida Real Estate Commission rejected a stipulation providing for revocation of the corporate respondent's license and reprimand of the individual respondent. The proposed stipulation included these oddly conflicting provisions: Respondents neither admit nor deny the allegations contained in the Administrative Complaint. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of a violation of the Real Estate Practice Act as follows: failed to account and deliver a real estate commission as to Respondent Real Estate Services, Inc., and failed to properly supervise the activities of the corporation as to Respondent Charles A. Alario, Sr. (Respondent's Exhibit 5, pp. 1-2) The cover letter from counsel for Respondents accompanying the stipulation informed counsel for DPR that the client was entering the stipulation to save the expense of proving his innocence. (Respondent's Exhibit 5) The final hearing was held in Sarasota, Florida on July 21, 1986. Each party presented only one witness. A substantial portion of Petitioner's case consisted of the complaint and judgement in a civil case wherein the Respondents were sued for share of a commission. The Recommended Order, dated October 6, 1986, provided, in pertinent part: Findings of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario, Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issued license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a corporation licensed as a `real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,25] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January, 1979 through August, 1980. (T- 19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34). Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T-31, 32). On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd. seller, and Buck Creek Development Corporation, buyer. (Respondent's Exhibit Number 8) Respondents did not have a co-buyer* agreement with Rider and Opitz nor with Ms. Bell. (T-20, 40, 41) Charles Alario offered Phyllis Bell referral fee to be paid to her broker of record. (T-41, Respondent's Exhibit Number 6). This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18, 20, 21, Respondent's Exhibit Number 1 and Number 9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's Exhibits Number 4 and Number 5). A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the, jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's Exhibit Number 6). Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52- 54). *The context suggests this term was intended to be "co-broker". The Recommended Conclusions of Law noted that the exhibits from the civil suit were not competent evidence, in and of themselves, of violations of subsections 475.25(1)(d) and (e), F.S.: It is not possible to extrapolate from the complaints and the very briefly-worded judgement that the essential elements of those subsections were proven. The involuntary dismissal of Charles Alario and the jury award of $37,000.00 damages bear little resemblance to the relief sought and allegations made by the Plaintiff, Rider, Opitz, and Seale, Realty, Inc. Further, it was noted that the stricter standard of proof in a license proceeding effectively precluded reliance on a prior civil judgement for evidence of a license statute violation. The Department of Professional Regulation never proved an essential element of the alleged violations, that Respondents actually received their commission from the sale. Respondents were in the process of suing for that commission, a fact duly noted by counsel for DPR in his presentation of the proposed stipulation to the Commission. (Respondent's Exhibit Number 6, p. 3) On December 2, 1986, the Florida Real Estate Commission voted 3-2 to adopted the Recommended Order dismissing the charges. The members were obviously troubled by the existence of a civil judgement against the corporation that had not been satisfied. Counsel for DPR conceded, however, that the alleged violations were not failure to pay a judgement, but rather, failure to pay a commission to a real estate broker. (Respondent's Exhibit Number 7, p. 17) This distinction was also noted by Marguerite Schlitt, the Vice-chairperson. (Respondent's Exhibit Number 7, p. 20) Another member noted that he could not find, in his reading, anything specifically where the commission was paid. (Respondent' Exhibit Number 7, p. 18) As part of his argument to the Commission, counsel for DPR again made clear the essence of the case against these Respondents: [by James Mitchell, DPR staff attorney]: I think we have got to give that civil judgement some credence, some credibility, and you can do that by overruling the Hearing Officer's recommendations and going essentially with what the civil Court has done. I don't think it is necessary for us, in these proceedings, to retry a civil trial all over again. I think it is our position that the final judgement, complaint and final judgement, are sufficient to establish, in situations such as this, that a stipulation has occurred, rather than, in fact, a case like this where the judgement had to be anticipated. I think you can do that by overruling the Hearing Officer's Recommended Order. (Respondent's Exhibit Number 7, p. 15) The Commission's Final Order adopting and incorporating by reference the Recommended Order was filed on December 11, 1986. The Department of Professional Regulation appealed to the Fifth District Court of Appeal. The Final Order was affirmed, per curiam, without an opinion, on July 21, 1987. Petition for Rehearing was denied on August 17, 1987, and the appellate court's Mandate was issued on September 3, 1987. To defend against the agency action, Petitioner incurred attorney's fees and costs in the total amount of $9,190.68. This amount is not contested by Respondent.
Findings Of Fact Petitioner, Kimberly D. Coyle, filed her first application for licensure as a real estate salesman in 1979 with Respondent, Department of professional Regulation, Florida Real Estate Commission. She did not pass the examination and resubmitted a second application in February, 1980. However, she did not take the examination at that time. By application dated November 2, 1981, she filed another application for licensure with Respondent. All responses on the application at that time were complete and correct. The application was returned to Petitioner in January, 1982 with a request that she resubmit the same and enclose a passport photograph and a set of her fingerprints which had been previously omitted. Because Petitioner was in a hospital at that time, her mother returned the original application together with the requested fingerprints and photograph. These were received by the Commission on February 10, 1982. The November application was refiled a third time on March 4, 1982 because the required $25 application fee had not been included with the prior two submissions. Applicant was thereafter approved for licensure, and successfully passed the salesman examination. On December 8, 1981, Petitioner was arrested in Dade County and charged with three counts of possessing a controlled substance. She was later placed in the South Miami Hospital Addiction Treatment Program on December 11, 1981 where she remained for six weeks. On March 1, 1982, Coyle was accepted as a participant in the State Attorney's Diversion Program and has been a successful participant since that time. As a result of her participation, adjudication on the charges has been withheld pending a successful completion of the conditions of her program. On April 30, 1982, the Commission wrote Petitioner a letter in which it advised her that the December 8 arrest had come to its attention, and requested that she forward a "complete explanation of these charges along with an explanation of (her) partial answer to. . .question (six)." Question six requires that the applicant answer whether she had ever been arrested without regard to whether she was convicted, sentenced, pardoned or paroled. Petitioner furnished a reply to the Commission's inquiry on June 8, 1982. She gave a full explanation of the charges and stated that a partial answer to question six was given on the March 4 submission because "as of March 4, 1982. . .(she) had not yet appeared in court." On July 2, 1982, Respondent notified petitioner that her application was denied on the ground that her answer to question six on the application "failed to reveal the 1981 drug charge." The denial precipitated the instant case. 1/ Petitioner is twenty-one years old. She is currently employed as a waitress in Miami. If her application is approved, she intends to work for her mother's real estate firm in Marco Island, Florida. Coyle stated that when her application was originally submitted in November, 1981, it was complete and accurate. The resubmissions in February and March, 1982 were made by her mother, and simply involved the refiling of the November application with the additional items (photograph, fingerprints and check) requested by the Commission. There was no intent on the part of Coyle to deceive the Commission, and when asked to clarify her response to question six, she did so in a full and truthful manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kimberly D. Coyle for licensure as a real estate salesman be GRANTED. DONE and ENTERED this 28th day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982.
The Issue Whether the Map of Reservation filed by Tampa-Hillsborough Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.
Findings Of Fact Petitioner was consolidated back to its parent corporation, and now operates as General Homes Corporation which is a large builder of single family homes in the Tampa area. The property affected by the Map of Reservation filed by Respondent was acquired by Petitioner in 1985 and comprises some 24 acres which have been platted into 96 lots known as Eastbrook Subdivision. Eastbrook Subdivision is the third housing development commenced by Petitioner in unincorporated northwest Hillsborough County. The first such subdivision started in 1980 was called Carrollwood Springs. That project was successful and when that development was nearly completed additional property in the vicinity was purchased and the Eaglebrook Subdivision was started. That project was of a similar size to the Carrollwood Springs Subdivision and, it too, was successfully developed and sold. The success of these developments led Petitioner to the purchase, in August of 1985, of the 24 acres to be developed as the Eastbrook Subdivision which is similar in size to the two former developments. At the time this purchase was made there were two proposed alignments of the northwest expressway, the Lake Le Clare Alignment and the Railroad Alignment. The Lake Le Clare Alignment, if adopted, would cross the Eastbrook property but the Railroad Alignment would not. Petitioner had closely monitored the selection process throughout 1985 and was under the impression that the Railroad Alignment would be selected for the Expressway. In 1986, the Expressway Authority selected the Lake Le Clare Alignment. However, the Map of Reservation was not filed until July, 1988. Petitioner proceeded apace with the development of the Eastbrook Subdivision by opening a sales center and five fully furnished model homes with the intention of selling single family homes in the subdivision. Weekly newspaper ads were run, billboard locations were rented and local realtor parties were hosted to draw more attention, and buyers, to the subdivision. In fiscal year 1986, General Homes spent some $300,000 in marketing efforts and sold some 56 homes in Eaglebrook closing out that subdivision. Eastbrook was opened and 16 lots were sold there. In 1987 General Homes spent over $400,000 in sales and marketing but sold and closed only 27 homes in Eastbrook. In fiscal year 1988 General Homes sold and closed 21 homes but incurred a loss of approximately $250,000. The expressway alignment was well known at this time and the public was aware the alignment would affect portions of the Eastbrook Subdivision. The Map of Reservation runs through the southern part of the Eastbrook Subdivision and Petitioner devoted most of its attention to developing the northern portion of the subdivision. However, the impending expressway and its impact on the Eastbrook Subdivision had a dampening effect on sales in this subdivision and in 1987 General Homes lost $231,000 in the Eastbrook Subdivision. In 1988, General Homes suspended all construction activities, discontinued speculative building and attempted to sell the unsold lots in the subdivision. In early 1988, General Homes sold ten lots in Eastbrock to Atlantic Homes who built homes on those lots. An option by Atlantic Homes to purchase additional lots was not exercised. Since the cessation of building activities, General Homes has held the land not sold as unproductive assets in which development costs have accrued, taxes and interest payments continue, but the lots cannot be sold for the erection of a single family home.
Recommendation It is RECOMMENDED that the Petition of General Homes of Florida, Inc. for a determination that the Map of Reservation filed by the Tampa-Hillsborough Expressway Authority is unreasonable or arbitrary and that it denies Petitioner a 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: Peter J. Winders, Esquire One Harbor Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Jr., Esquire Post Office Box 21 Tampa, Florida 33601 =================================================================
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
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Dismissal filed by Petitioners, A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW 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, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 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. Final Order No. DCA10-GM-039 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency. Clerk, and that true and correct copies furnished to the persons listed below in the manner described, on this ebreary? 2010. March, * U.S. Mail: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Jeffrey Brown, Esq. Oertel, Fernandez, Cole & Bryant, P.A. P.O. Box 1110 301 South Bronough Street Tallahassee, Florida 32302 Kenneth G. Oertel, Esq. Oertel, Fernandez, Cole & Bryant, P.A P.O. Box 1110 301 South Bronough Street Tallahassee, Florida 32302-1110 Michael P. Donaldson, Esq. Carlton Fields, P.A. 215 South Monroe Street, Suite 500 P.O. Drawer 190 Tallahassee, Florida 32302-0190 Robert C. Apgar, Esq. Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 e been day of Paula Ford Agency Clerk Sherry Spiers, Esq. Greenberg Traurig, P.A. P.O. Box 1838 101 East College Avenue Tallahassee, Florida 32301 Deborah S. Minnis, Esq. Ausley & McMullen, P.A. P.O. Box 391 Tallahassee, Florida 32302 Robert A. Routa, Esq. Robert A. Routa, P.A. P.O. Drawer 6506 Tallahassee, Florida 32314-6506 Martha Harrell Chumbler, Esq. Carlton Fields, P.A. ; 215 South Monroe Street, Suite 500 P.O. Drawer 190 Tallahassee, Florida 32302-0190 Nancy G. Linnan, Esq. P.O. Box 190 Tallahassee, Florida 32302-0190 Hand Delivery: Matthew Davis Assistant General Counsel Department of Community Affairs - 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Final Order No. DCA10-GM-039
Findings Of Fact Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive. Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation. Petitioner signed a contract to purchase the subject property for $953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985. In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million. On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed. As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation. Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection. By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain. The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width. To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel. The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than 34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have. Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property. Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988. DONALD D. CONN 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 21st day of December, 1988. COPIES FURNISHED: A. Broaddus Livingston, Esquire One Harbour Place Post Office Box 3239 Tampa, Florida 33601 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
