Findings Of Fact Respondent, Benny Isaiah, holds real estate broker's license number 0311124 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Greater Realty of Orlando, Ltd., Inc., is a real estate broker corporation and holds license number 0223392 also issued by petitioner. When the events herein occurred, its offices were located at 66408 International Drive, Orlando, Florida. At all times relevant hereto, Isaiah operated as the qualifying broker for Greater Realty. On or about November 2, 1982, Isaiah's wife, Dalia, a real estate salesman in respondent's fir, obtained an offer from Arthur Zimand to purchase a residence located at 9227 Bay Point Drive, Orlando, Florida, for $190,000. The residence was owned by Tran Van Don, a former Vietnamese army officer. In the contract for sale and purchase, Zimand established a closing date of February 1, 1983. He also gave respondent's firm a $2500 earnest money deposit to be held in escrow by Greater Realty which was placed in the appropriate escrow account as required by law. The contract provided that "(i)f the offer is not executed by both of the parties on (a date specified therein), the . . . deposit(s) shall be, at the option of the Buyer, returned to him and this offer shall thereafter be null and void." The above offer was presented to the seller and rejected. Thereafter, Don prepared a counter-offer on November 9, 1982, which increased the sales price to $205,000 and changed the closing date to November 30, 1982. After reviewing the counter-offer, Zimand agreed to all changes except the closing date of November 30, 1982. He could not agree to that date since he was unable to obtain sufficient funds to close the transaction until December 10, 1982. Accordingly, Zimand crossed out the closing date suggested by the seller, wrote in December 10, 1982, in its place, and initialed the change on the contract. The later closing date was unacceptable to the seller and he did not accept Zimand's counter-offer. Therefore, no contract was executed by the parties. Respondents were so notified by the seller's attorney by letter sent on November 23, 1982. The letter advised them that the seller would not accept the closing date of December 10, and that accordingly no contract between the two parties existed. On November 24, 1982, Zimand wrote respondent's wife a letter in which he withdrew his offer and requested a prompt refund of his $2500 deposit. On December 3 and 11, 1982, respectively, Zimand and Don executed a "release of deposit receipt" wherein both parties instructed respondents to disburse the deposit held in escrow to Zimand. By signing the release form, the seller acknowledged that he had no interest in the deposit monies. The document was mailed to respondents on January 11, 1983. This was followed by a letter to Isaiah from Zimand's attorney on January 25, 1983, again requesting a refund of the deposit within ten days. Despite these requests, Isaiah did not refund the deposit. On or about December 8, 1982, Isaiah withdrew the $2500 from his escrow account. The disposition of those funds is not known. Zimand later instituted a civil action against Isaiah seeking to recover his deposit. He also filed a complaint with petitioner. On May 9, 1984, or just before the matter went to trial, Isaiah returned the deposit to Zimand. This was some seventeen months after Zimand first requested a refund of his deposit. Isaiah contends there was a valid contract between Zimand and Don, and that they used a "technicality" (a dispute over closing dates) to get out of closing the transaction. Because of this, he believes he was originally entitled to keep the $2500 as a sales commission. He also contended that his wife is the person who should be involved in this proceeding rather than him since she negotiated the contract and is more familiar with the details of the contract. Finally, he asserts the dispute has no clear-cut answer, and falls within a "gray" area. As such, he was justified in his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of Counts I, II and III of the administrative complaint, that their licenses be suspended for six months, and each pay a $500 administrative fine within forty-five days after a final order is entered in this cause. DONE AND ENTERED this 8th day of November 1984 in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of November 1984.
Findings Of Fact At all times material hereto, Defendant was registered with Plaintiff as an active broker, holding certificate NO. 0182756. On or about October 4, 1976, a Contract for Sale of Real Estate ("the contract") was entered into between Merit Properties Corporation as seller, Frances G. Williams ("the buyer") as buyer, and Defendant as "agent." The contract was for purchase and sale of certain real property and improvements located in Tampa, Florida. The contract provided that purchase of the property was contingent upon the buyer qualifying for and obtaining an FHA mortgage in the amount of $20,850. At the time the contract was signed, the Defendant obtained a $300.00 deposit from the buyer, and at some later date, accepted an additional deposit of $550.00, making a total deposit of $850.00 toward the purchase price of the property. The contract provides that the deposit shall apply as part of the purchase price of the property "...and shall be held by said Agent in escrow pending closing of [the] transaction..." In addition, the contract provides that upon closing of the transaction "[t]he Seller agrees to pay said Agent a sum equal to 7 percent of the purchase price as commission...." Finally, the contract contained a provision indicating that "[n]o agreements, unless incorporated in this contract shall be binding upon the Agent, Buyer, or, Seller." Sometime in late 1976, the buyer applied to Mortgage Associates, Inc. for an FHA mortgage. On or about November 5, 1976, this application was rejected. On or about November 29, 1976, the buyer again applied for an FHA mortgage, this time through Charles F. Curry and Company. This mortgage application was rejected on December 10, 1976. Defendant was aware that the buyer had applied for an FHA mortgage through Charles F. Curry and Company. Written notification of rejection of the buyer's application through this company was sent to the buyer, but a copy was not forwarded by Charles F. Curry and Company to Defendant. The record establishes, however, that Charles F. Curry and Company's general practice was to notify real estate brokers involved in financing transactions of the disposition of mortgage loan applications. Defendant denies receiving any such notification from Charles F. Curry and Company. On several occasions, after the aforesaid rejections of the buyer's mortgage loan applications, the buyer attempted to contact Defendant by telephone, but was unsuccessful in these attempts. Subsequently, on February 21, 1977, the buyer orally advised Defendant that her mortgage loan application had been rejected, and requested return of her $850.00 deposit. When Defendant did not return the deposit, the buyer retained an attorney to assist her in recovering her deposit. Finally, pursuant to a Compromise and Settlement Agreement dated September 5, 1978, Defendant returned the buyer's deposit of $850.00, together with an additional $100.00 as accrued interest. However, of this $950.00 total, the buyer received only $650.00. The remaining $300.00 constituted a fee which the buyer had to pay to her attorney for services rendered in recovering the deposit. Defendant was a substantial owner of Merit Properties Corporation, the purported seller of the real property here involved. Evidence of record in this proceeding clearly establishes that Defendant did not deposit the $850.00 earnest money deposit received from the buyer in an escrow account maintained either in his own name or in the name of Merit Properties Corporation. In fact, Defendant admits that the $850.00 deposit was used to make improvements to the real property which was the subject matter of the contract. Defendant contends that he received the earnest money deposit from the buyer as an officer of Merit Properties Corporation, and that he had an oral understanding with the buyer entered into prior to the execution of the contract that the money so received would note be held in escrow, but would be used to make improvements on the property. These contentions are not supported by the evidence and are specifically rejected. The record clearly establishes that during negotiations leading to the signing of the contract, Defendant informed the buyer that he was a real estate broker. In addition, the record also establishes that Defendant prepared the contract, and was therefore responsible for the wording of that document. The contract clearly provides that Defendant acted as "agent" for Merit Properties Corporation, and that as such, he was to receive a 7 percent commission on the purchase price at the closing of the transaction. By the very terms of the contract, therefore, Defendant was acting in the capacity of a real estate broker in this transaction. In addition, the contention that there existed an oral agreement between Defendant and the buyer prior to the signing of the contract to use the deposit money for construction purposes is not supported by the evidence of record in this proceeding, and, in fact, is directly contrary to the language contained in the contract document prepared by Defendant. Finally, Defendant contends that he never refused to return the buyer's deposit, but informed her that the deposit would be returned upon the buyer furnishing to Defendant both a copy of correspondence rejecting the buyer's mortgage loan application, and a "release." There is no provision in the contract involved in this transaction which would require the buyer to furnish Defendant any sort of "release", or to furnish notice of inability to obtain the necessary financing in any specific form. Thus, oral demand for return of the deposit was clearly permissible under the terms of the contract. Further, Defendant was aware of the fact that the buyer had applied for mortgage financing through Charles F. Curry and Company, and therefore could either have obtained a copy of the rejection of the buyer's mortgage loan application himself had he chosen to do so, or could at the least have inquired of that company as to the disposition of the buyer's application. Both Plaintiff and Defendant have submitted Proposed Findings of Fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as having been irrelevant to the issues in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Board of Real Estate, suspending Defendant's real estate broker's license No. 0182756 for a period of sixty (60) days from the date of final agency action in this proceeding. DONE and ENTERED this 21st day of July, 1980, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Gwynne A. Young, Esquire Post Office Box 3239 Tampa, Florida 33601 ================================================================= AGENCY MEMORANDUM ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone 904-488-6692 MEMORANDUM TO: C. B. Stafford, Executive Director, Board of Real Estate E. B. Ashley, Administrator on Investigations FROM: John Huskins, Assistant General Counsel SUBJECT: FINAL ACTION - Suspension PD 3402 (DOAH 79-744) James E. Black, Broker 182756-1 DATE: February 6, 1981 This is to advise you that by FINAL ORDER dated September 15, 1980 (copy attached) the license of James E. Black was suspended for six (6) months, effective October 16, 1980, provided no appeal was taken. Black did appeal. January 21, 1991 the Appellate Court entered its ORDER dismissal of appeal (copy attached), therefore, suspension became effective immediately. Broker Black, through his lawyer, delivered to me Black's Certificate Number: 182756, as individual broker Certificate Number: 182755, as corporate-Best Opportunity Realty Corporation. both of which are attached to this memo to C. B. Stafford. It is suggested that revocation records be updated to reflect suspension and the effective date. It is further suggested that investigation be made as necessary to determine if James E. Black is in fact refraining from real estate activities, in compliance with his suspension. JH/pkr Enclosures* cc: Mr. Michael Schwartz, General Counsel Susan Penquite, Central Files Mr. Fred Wilson, Assistant General Counsel Ms. Renata Hendrick, Supervisor of Records * NOTE: Enclosures noted are not available at the Division and therefore not a part of this ACCESS document.
The Issue The issues are whether Respondent is guilty of violating a lawful order of the Florida Real Estate, in violation of Sections 475.42(1)(e) and 475.25(1)(e); committing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b) (two counts); failing to account for or deliver funds, in violation of Section 475.25(1)(d)1; failing to maintain trust funds in a real estate brokerage escrow bank account or some other proper depository until disbursement is authorized, in violation of Section 475.25(1)(k); failing to provide a written agency disclosure, in violation of Section 475.25(1)(q); being found guilty for a second time of any misconduct that warrants suspension or of a course of conduct or practices that show such incompetence, negligence, dishonesty, or untruthfulness as to indicate that Respondent may not be entrusted with the property, money, transactions, and rights of investors or others with whom Respondent may maintain a confidential relation, in violation of Section 475.25(1)(o); and failing to preserve and make available to Petitioner all books, records, and supporting documents and failing to keep an accurate account of all trust fund transactions together with such additional data as good accounting practice requires, in violation of Rule 61J-14.012(4) and Section 475.25(1)(e).
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license numbers 0489551 and 3000384. Respondent is the qualifying broker for Buyers Realty of Naples, Inc., of which Respondent was a principal. Respondent has been disciplined once previously. On December 8, 1994, the Florida Real Estate Commission entered a final order, pursuant to a stipulation, ordering Respondent to pay an administrative fine of $500 and complete 30 hours of professional education. In late 1993, Respondent, Armand Houle, and Svein Dynge formed DSA Development, Inc. (DSA). Respondent, Houle, and Dynge were directors of the corporation. On December 1, 1993, Respondent, Houle, and Dynge formed Gulf Southwest Developers, Ltd. (GSD). DSA served as the sole general partner of GSD, whose original limited partners included Houle and several foreign investors represented by Dynge, but not Respondent or Houle. The investors formed GSD to assemble a vast tract of land in Collier County, through numerous purchases, for purposes of mining, development, and speculation. The initial investors contributed or agreed to contribute over $4 million to GSD. Respondent's role was to find suitable parcels of land and negotiate their purchase by GSD or its agent. GSD agreed to pay Respondent $1000 weekly for these services. GSD also authorized Respondent to take a broker's commission of 10 percent of the sales price for each fully executed contract presented to the closing agent. This is the customary broker's commission in the area for transactions of this type. Respondent's claim that he was entitled to a commission of 20 percent is rejected as unsupported by the evidence. There is some dispute as to whether the seller or the buyer was to pay the commission. The contracts provide that the commission was to be deducted from the seller's proceeds. However, regardless of the source of the commission, Respondent was entitled only to 10 percent, not 20 percent. Respondent knew that he was not entitled to 20 percent when he took the additional sum from GSD funds. Thus, the act of taking the funds constituted no less than concealment (due to his failure to disclose his withdrawals), dishonest dealing, culpable negligence and breach of trust, if not actual fraud. There is some evidence that Respondent took substantial sums from GSD without authorization. Without doubt, part of these sums represented the additional ten percent commission described in the preceding paragraph. Petitioner has attempted to prove that Respondent took sums in excess of the extra ten percent commission without authorization. However, as to such sums in excess of the additional ten percent commission, Petitioner has failed to prove by clear and convincing evidence either that Respondent took such additional sums or, if he did so, that these withdrawals were not authorized or at least ratified. As agent for GSD, Houle entered into numerous contracts in the second half of 1994 and first half of 1995. In each of these contracts, Respondent signed the contract below printed language stating that he, as broker, and Buyers Realty of Naples, Inc. had received the initial escrow deposit under the conditions set forth in the contract. At no time did Respondent or Buyers Realty of Naples, Inc. hold the escrowed funds in an escrow account under the name of Respondent or Buyers Realty. Respondent maintains that he transferred the funds to the title company to hold in escrow. The record does not permit a finding, by clear and convincing evidence, that he did not do so, although there is some evidence indicating that the title company did not hold such funds. However, it is sufficient that Petitioner has shown by clear and convincing evidence that neither Respondent nor Buyers Realty held these escrow funds, despite clear misrepresentations by Respondent in each contract that he or his company held these escrowed funds. Respondent's misrepresentations constitute fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, and breach of trust. Petitioner failed to prove by clear and convincing evidence that Respondent did not make the required agency disclosures in a timely fashion or that Respondent did not make available to Petitioner's investigator the books and records that he is required to maintain. Likewise, Petitioner did not prove by clear and convincing evidence that Respondent failed to complete the education required by the prior final order or participated in the fraudulent endorsement of Houle's signature on checks by a secretary, who later obtained Houle's consent to the act.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order suspending Respondent's license for five years. DONE AND ENTERED this 4th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1997. COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 James H. Gillis James H. Gillis & Associates, P.A. Law Offices of Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801-2169 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact During December of 1979, Fred H. Greene and his wife Marie L. Greene, decided to sell their residence located in St. Augustine, Florida. They listed the property with Respondent for a selling price of $55,000. Ms. Farrell holds a real estate salesman's license issued by the Florida Real Estate Commission. At all times pertinent to this case she has been so licensed. In January 1980, Ms. Farrell presented an offer to purchase the Greene's home for $50,000. They agreed to the offer and entered into a Contract for Purchase and Sale on January 15, 1980. In the course of discussing how to structure the financing of the sale, Ms. Farrell suggested that the Greenes take back a $6,000 second mortgage from the purchasers, Harry and Margaret Carlyle. Mr. Greene wanted to know from Ms. Farrell how much in proceeds he would receive when the parties closed the sale. She made the following calculations: $50,000.00 Purchase Price -$31,000.00 Greene's First Mortgage held by McCaughn $19,000.00 $19,000.00 -$ 3,562.00 ----------- $15,438.00 Commission and Closing Costs tary Stamps, Abstract Cost) (Documen- $15,438.00 +$ 8,490.00 (Six Thousand Dollars Second Mortgage ----------- and Interest thereon at 10 percent) $23,928.00 These computations are incorrect. At closing the $6,000 second mortgage was not to be part of the cash distribution to the Greenes, but, was a debit against the cash proceeds. The above incorrect calculation is the only error made by Respondent in discussing the sales transaction with the Greenes. At all times relevant the Greenes were properly apprised of all the other details concerning the sale of their house. The miscalculation was an honest mistake on the part of Ms. Farrell. There is no evidence that it was made with the intent of misrepresenting anything to the Greenes. Furthermore, there is no evidence that the miscalculation was made negligently. Neither Ms. Farrell nor the Greenes knew she had made a mistake until the closing which was held on March 24, 1980. During the closing Ms. Judy White who was the closing agent for St. Johns Title and Abstract Company began to explain to the Greenes their closing statement. Mr. Greene pushed the statement away and said, "That's not what I expected to get." The statement showed that his cash proceeds were $9,144.46. The statement properly reflected the $6,000 second mortgage as a sellers' debit. Ms. White explained the statement to Mr. Greene several times, but he still did not understand why the cash proceeds did not equal the amount computed for him by Ms. Farrell during their early discussion. Mr. Greene was visibly upset and directed several angry questions towards Ms. Farrell concerning the discrepancy. Because she felt a need to control the closing proceedings, Ms. White vigorously intervened and attempted to answer Mr. Greene's questions. Both of the buyers who were also present at the closing urged the Greenes not to sign the closing documents if they had any questions or doubts about the sale. During the closing Ms. Farrell was not aware of her original mistake in miscalculating the closing proceeds. Neither the Carlyles, Ms. Farrell or Ms. White did anything to influence Mr. Greene to execute the closing documents. During his heated discussion of the figures with Ms. White, Mr. Greene's wife repeatedly urged him to be quiet and execute the documents. At one point she said, "Oh sign it, you son-of-a-bitch." Finally Mr. Greene relented and executed all of the closing documents which were then recorded. The proceeds of the sale were then disbursed. Prior to executing the closing documents the Greenes were fully apprised of all significant financial facts concerning the sale of their home to Harry and Margaret Carlyle. During the foregoing transaction Ms. Farrell represented the Greenes as their real estate salesperson. She did not become aware of the mistake in her calculation of the closing proceeds, until she discussed the matter with her real estate sales manager after the closing. Ms. Farrell has an excellent reputation for competency in the real estate profession, both in St. Johns County where the above transaction took place and in Broward County where she is now employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Respondent, Mary P. Farrell be DISMISSED. DONE and RECOMMENDED this 18th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October,1982
Findings Of Fact At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order fining Respondent $500. DONE and ENTERED this 12th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, 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 12th day of July, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Louis S. Okoniewski 730 Lake View Avenue, N.E. Atlanta, Georgia 30308 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, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
Findings Of Fact At all times relevant hereto, Respondent John V. Nink, Jr., was registered as a real estate broker (Exhibit 1). Exhibit 1 contains no license record for Respondents Leslie M. Nink and Greater Bay Realty, Inc. In Contract for Sale and Purchase executed April 22, 1985 (Exhibit 2), Sprinkle and Anders (sellers) agreed to sell a tract of land to Tampa Technology, Inc. (TTI) for $270,000 with $7500 down payment held by Greater Bay Realty and the contract was witnessed by John V. Nink. This contract was subject to six conditions shown on "Addendum A" to the contract, the only significant one being condition 6 which provides the contract is subject to buyer receiving approval for change in zoning to allow the construction of 56 units on the site. TTI is owned by Donald P. Fisher and John M. Cherry who have been partners in numerous real estate developments in the Hillsborough County area for more than 10 years. Fisher holds a license as a real estate broker and signed Exhibit 2 as President of TTI. Both of these complaining witnesses have been involved in the purchase and development of numerous tracts of land and are fully aware of the obligations of real estate contracts. Although denied by Fisher, Respondent provided Fisher with a copy of the deed admitted into evidence as Exhibit 6. Respondent had obtained an option to purchase this tract of land but was unable to finance the property on his own. To assist in the financing, he entered into an agreement with Sprinkle and Anders whereby they would provide financing and receive 75 percent interest in the property. Under the terms of this agreement, the property was deeded to Nink and simultaneously a deed from Nink to Sprinkle, Anders and Nink was executed. This is the deed admitted into evidence as Exhibit 6 and which was provided to Fisher when Exhibit 2 was executed. When TTI applied to the county for rezoning they learned only 52 units would be approved for building on the site to be purchased in Exhibit 2. At this time the contract was voidable by the buyer but they did not desire to void the contract. Instead, they proceeded with the rezoning and attempted to raise the acquisition and development financing needed to consummate the purchase and commence construction. Some six months after first approaching the zoning authorities, TTI was successful in getting this property rezoned to authorize construction of 52 dwellings on this property. TTI's owners requested the contract remain in effect to give them additional time to locate financing. By these acts, TTI waived the contract provision that the property be rezoned to authorize construction of 56 dwellings. The principals in TTI have had numerous business relations with Leslie Nink over the past 10 years. They were aware that the Ninks were minority owners of the property for which TTI contracted to purchase and they continued to pursue the acquisition of this property until in early 1987 they concluded that they were unable to raise the necessary financing. On February 19, 1987, TTI sent a letter to John Nink requesting refund of the $7500 escrow deposit, and on March 10, 1987, a similar letter was sent to Leslie Nink (Exhibit 5). Upon receipt of Exhibit 5, John Nink contacted the Florida Real Estate Commission to request adjudication of the escrow deposit of $7500 to determine if the seller or buyer was entitled to the deposit.
Findings Of Fact The Florida Real Estate Commission presented evidence of the service of the Notice of Hearing upon Madison B. Graves, Esquire, 612 East Carson, Las Vegas, Nevada, 89101, as Counsel for Barbara Orcutt, by certified mail return receipt requested. Barbara Orcutt is presently a non-active broker; however, Barbara Orcutt was at the time in question in the Administrative Complaint a registered real estate broker with Gold Palm Realty Corporation, 1701 S. Federal Hwy., Boca Raton, Florida, 33632. Sigurd N. Hersloff was the owner of real estate described as 819 Lake Drive, Boca Raton, Florida. Hersloff contacted Jacqueline M. Winter, an associate broker with Gold Palm Realty, and advised her of his intent to sell said real property. Winter, in turn, mentioned the fact that Hersloff desired to sell his home to the Respondent, Barbara Orcutt. Orcutt stated to Winter that she (Orcutt) knew of a potential buyer for Hersloff's real property. David F. Young was advised by Orcutt of the availability for purchase of Hersloff's real property. Orcutt showed Hersloff's property to David F. Young, and subsequently David F. Young made an offer for purchase of Hersloff's real property for a purchase price of $76,200 putting up a $500 earnest money deposit. This proposal was presented to Hersloff in the presence of Winter. Hersloff was concerned and annoyed that Orcutt had received only $500 as an earnest money deposit. Hersloff told Orcutt that he did not consider $500 earnest money deposit sufficient compensation for taking his property off the market and advised Orcutt that Young would have to pay a full 10 percent of the $76,200 purchase price as earnest money deposit. Orcutt advised Hersloff that Young could not pay an earnest money deposit. Hersloff advised Orcutt that if Young could not pay the $7,620 earnest money deposit that he would accept a promissory note for the difference between the $500 and the $7,620. Orcutt left Hersloff and Winter presumably to return to Young to present Hersloff's objection to the contract for purchase. Orcutt later returned and spoke with Hersloff and Winter. She represented to Hersloff and Winter that she had obtained a promissory note from Young made out to Gold Palm Realty Corp. and that same would be deposited in Gold Palm Realty Corporation's escrow account together with Young's $500 earnest money deposit. Upon this representation Hersloff executed the contract for purchase presented by Orcutt in Young's behalf. The contract for purchase provided in part that Hersloff was to hold a second mortgage in the amount of $15,000 for a period of four months from the date of closing, said second mortgage to bear no interest. Young, who was in the process of selling real property in another state, became concerned that he might not be able to repay the second mortgage to Hersloff within the four months as stated in the contract. He spoke with Orcutt and asked her if she could obtain an extension of two months within which to pay the second mortgage. Orcutt represented to Young at that time that she did not anticipate that Hersloff would have any objection to such an extension. Subsequently in a conversation between Hersloff and Young, Hersloff determined that contrary to Orcutt's representation, she had not obtained a promissory note from Young. Young, at that time, learned that Orcutt had not mentioned a possible extension of the mortgage to Hersloff. On November 11, 1974, the Parties closed the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Barbara Orcutt as a non- active broker be suspended for a period of two years. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Madison B. Graves, Esquire 612 East Carson Las Vegas, Nevada 89101
The Issue The issue to be resolved herein concerns whether the Petitioners are entitled to an award of attorney's fees in this proceeding. Embodied in that general issue are questions concerning whether the Petitioners are the prevailing parties; whether they meet the definition of "small business" parties, including the net worth amounts, enumerated in Section 57.111, Florida Statutes, as well as whether the disciplinary proceeding against both Petitioners was "substantially justified". See Section 57.111(3)(e) , Florida Statutes.
Findings Of Fact The Respondent is an agency of the State of Florida charged with licensing and regulating the practices of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included within those duties is the duty to investigate conduct by realtors allegedly in violation of Chapter 475 and related rules and to prosecute administrative penal proceedings for which probable cause is found as a result of such investigations. At times pertinent hereto, both Ms. Maxwell and Ms. Cosyns, (then Pauline Sealey) were licensed realtors working as independent contractors for Mariner Properties, Inc. and V.I.P. Realty Inc. The complete file of the underlying proceeding DOAH Case No. 86-0140, was stipulated into evidence. That file included the Administrative Complaint filed against these Respondents and the Recommended and Final Order, which Final Order adopted the Recommended Order. The findings of fact in that Recommended Order are incorporated by reference and adopted herein. During the Petitioner's case, counsel for Petitioner voluntarily reduced the attorney's fees bills for both Petitioners such that Ms. Maxwell's bill is the total amount of $2,695.50 and Ms. Cosyns' bill is $17,200, rather than the original amounts submitted in the affidavit. Respondent acknowledged in its proposed Final Order that the fees and costs submitted by the Respondent were thus reasonable. The testimony the Petitioners presented through depositions, transcripts of which were admitted into evidence into this proceeding, was unrefuted. That testimony demonstrates that both Ms. Cosyns and Ms. Maxwell were prevailing parties in the administrative proceeding referenced herein brought by the Respondent, Department of Professional Regulation. They were individually named as Respondents in the Administrative Complaint whereby their professional licenses were subjected to possible suspension or revocation for alleged wrong doing on their part. There is no dispute that they were exonerated in that proceeding and are thus prevailing parties within the meaning of Section 57.111, Florida Statutes. The Petitioners are also "small business parties". In that connection, they both were independently licensed Real Estate professionals during times pertinent to the underlying proceeding and were acting in the capacity of independent contractors for all the activities with which the administrative complaint was concerned. Each established that her net worth is below the limit provided by Section 57.111 as an element of the definition of "small business party". The reasonableness of the fees having been established in the manner found-above and the Petitioners having established that they meet the definitional requirements of prevailing small business parties, there remains to be determined the issue of whether the proceedings against the two Petitioners were "substantially justified", that is, whether the proceeding had a "reasonable basis in law and fact at the time it was initiated by a State agency." See Section 57.111(3)(e), Florida Statutes. The facts concerning each Petitioner's case regarding the three counts of the Administrative Complaint relating to them are as found in the Recommended Order incorporated by reference herein. Respondent Maxwell was charged in the complaint with having worked in conjunction with an office manager, Mr. Hurbanis of V.I.P. Realty, in conspiring with him to submit a fraudulent real estate sales contract to a lending institution for purposes of financing. This allegedly involved submitting a contract to the lending institution with an inflated purchase price in order to secure one hundred percent financing, the scheme being more particularly described in that portion of the findings of fact in the Recommended Order related to Jean Maxwell. In fact, Ms. Maxwell did not work in the realty office as charged in the Administrative Complaint, but rather was employed by Mariner Properties, which may have been a related company. The contract in question, although alleged to be fraudulent was, in fact, a bona fide contract which was a legitimate part of the Real Estate transaction submitted to the bank for financing purposes, about which the bank was kept fully advised. All details of the transaction were disclosed to the lender. Maxwell was specifically charged with concealing the true contract from the lender in order to enhance the percentage of the purchase price that the bank would finance, done by allegedly inflating the purchase price in a second contract submitted to the bank. It was established in the disciplinary proceeding that no such concealment ever took place. In fact, Ms. Maxwell was purchasing a lot from her own employer, Mariner Properties. Two contracts were indeed prepared for the purchase of Lot 69, a single family lot on Sanibel Island. In fact, however, the difference of $42,875 and $49,500 in the stated purchase price, as depicted on the two contracts, was the result of continuing negotiations between Ms. Maxwell and the seller, who was also her employer. The difference in the two prices depicted on the contracts was the result of, in effect, a set-off to the benefit of Ms. Maxwell, representing certain employee discounts and real estate commission due from the employer and seller to Ms. Maxwell, the purchaser. As Petitioners' composite Exhibit 5 reflects, the lender involved, North First Bank of Ft. Myers, Florida, was fully apprised of all the details concerning this transaction at the time it was entered into and the loan commitment extended and closed. Mr. Allan Barnes, the Assistant Vice President of North First Bank revealed, in the letter contained in this exhibit in evidence, that there was no concealment or misrepresentation of the facts to his institution by Ms. Maxwell. This letter is dated April 18, 1984. The other related letter in that exhibit, of May 2, 1984 from attorney Oertel to attorney Frederick H. Wilson of the Respondent agency, thus constitutes notice to the agency well before the complaint was filed, that no concealment or misrepresentation to the lender involved had occurred and the charges were requested to be dismissed. In spite of the fact that the agency was on notice of this turn of events well before the filing of the Administrative Complaint, it proceeded to file the complaint and to prosecute it all the way up to the date of hearing, requiring Ms. Maxwell's attorney to attend the hearing to defend her interests. At the hearing, counsel for the Department acknowledged that there was no basis for prosecuting Ms. Maxwell and voluntarily dismissed the complaint as to her. The Respondent's witness, Investigator Harris, in his deposition taken September 11, 1984, acknowledged that he did not discuss any details concerning the investigation, with attorney Frederick Wilson, who prepared the complaint, nor did he confer with him by telephone or correspondence before the filing of the complaint. Therefore, the complaint was prepared solely on the basis of the investigative report. The investigative report came into evidence as Respondent's Exhibit 1. It reveals that Mr. A. J. Davis the president of Mariner Group and Mariner Properties, who was Jean Maxwell's employer and the owner of the lot in question, signed one contract and his Executive Vice President signed the other. In spite of this, the investigative report does not reveal that the investigator conferred with either Ms. Maxwell, or the sellers concerning this transaction. He conducted a general interview of A.J. Davis concerning the alleged "problem" in his office of "double contracting," but asked him no questions and received no comment about the Jean Maxwell transaction whatever. Nor did the investigator confer with Mr. Allen Barnes or any other representative of North First Bank. If the investigation had been more complete and thorough, he would have learned from Mr. Barnes, if from no one else, that the bank had knowledge of both contracts and all details of the transaction underlying them and there had been no concealment or misrepresentation of the facts regarding the transaction by Ms. Maxwell. This information was learned by attorney Oertel as early as April 18, 1984 by Mr. Barnes' letter, referenced above, and it was communicated to the agency by Mr. Oertel on May 2, 1984. Nevertheless, the complaint was filed and prosecuted through to hearing. Therefore, the prosecution and filing of the Administrative Complaint were clearly not substantially justified. If the Department had properly investigated the matter it would have discovered the true nature of the transaction as being a completely bona fide real estate arrangement. Former Respondent, Pauline Sealy Cosyns was charged with two counts, III and V, in the Administrative Complaint at issue. One count alleged, in essence, that Ms. Sealey had engaged in a similar fraudulent contract situation regarding the sale of her residence to a Mr. and Mrs. Thomas Floyd. The evidence in that proceedings revealed no concealment of any sales contract occurred whatever with regard to the lending institution or anyone else. The facts as revealed at hearing showed Ms. Cosyns and the Floyds, through continuing negotiations after the original sales contract was entered into, amended that contract and executed a second one, in order to allow Ms. Cosyns to take back a second mortgage from the Floyds. This was necessary because Mr. Floyd, an author, was short of the necessary down payment pursuant to the terms of the original contract, because his annual royalty payment from his publishers had not been received as the time approached for closing. The second contract was executed to allow for a second mortgage in favor of the seller, Ms. Cosyns, in order to make up the amount owed by the Floyds on the purchase price agreed upon, above the first mortgage amount. The testimony and evidence in the disciplinary proceeding revealed unequivocally that the lending institution, Amerifirst Mortgage Company, was fully apprised of the situation and of the reason for the two contractual agreements. The $24,000 second mortgage in question is even depicted on the closing statement issued by that bank. There was simply no concealment and no effort to conceal any facts concerning this transaction from the lender or from anyone else. The investigation conducted was deficient because the investigator failed to discuss this transaction with the lender or with the purchasers. He discussed the matter with Ms. Sealy-Cosyns and his own deposition testimony reveals, as does his investigative report, that he did not feel that he got a complete account of the transaction from her. She testified in her deposition, taken prior to the instant proceeding, that she indeed did not disclose all facts of the transaction to him because she was concerned that he was attempting to apprehend her in some "legal impropriety". Therefore, she was reluctant to be entirely candid. The fact remains, however, that had he conducted a complete investigation by conferring with the lender and the purchasers, he would have known immediately, long before the Administrative Complaint was filed and the matter prosecuted, that there was absolutely no basis for any probable cause finding that wrong-doing had occurred in terms of Section 475.25(1)(b), Florida Statutes. Thus, the facts concerning the prosecution as to Count III against Pauline Sealy-Cosyns, as more particularly delineated in the findings of fact in the previous Recommended Order, reveal not only that Ms. Cosyns was totally exonerated in the referenced proceeding, but that there was no substantial basis for prosecuting her as to this count at all. Concerning Count V against Ms. Cosyns, it was established through the evidence at the hearing in the disciplinary case that she was merely the listing agent and did not have any part to play in the drafting of the contract nor the presenting of it to the lender. Because there was no evidence adduced to show that she had any complicity or direct involvement in any fraudulent conduct with regard to the transaction involved in Count V of the Administrative Complaint at issue she was exonerated as to that count as well. It is noteworthy here that a statement was made by counsel for the agency, appearing at pages 20 and 21 of the transcript of the proceeding involving the Administrative Complaint, which indicates that the agency, based upon its review of certain documents regarding Counts III and V, before hearing, felt that indeed there might not be a disputed issue of material fact as to Mrs. Cosyns. The agency, although acknowledging that a review of the documents caused it to have reason to believe that it was unnecessary to proceed further against Ms. Cosyns nevertheless did not voluntarily dismiss those counts and proceeded through hearing. Be that as it may, the investigation revealed that Ms. Cosyns acknowledged that she knew that there were two contractual documents involved, but the investigation also revealed that Ms. Cosyns was only the listing agent. The selling agent was Mr. Parks. The investigation revealed through interviews with Ms. Cosyns, Mr. Parks and Mr. Hurbanis, the office Manager of V.I.P. Realty, that Ms. Cosyns, as listing agent, was merely present when the offer from the buyers was communicated to the office manager, Mr. Hurbanis, and ultimately to the sellers, the Cottrells. There was no reason for the investigator to believe that Ms. Cosyns had anything to do with the drafting of the contracts nor with the communication of them to the lending institution involved. That was done by either Mr. Parks or Mr. Hurbanis or by the buyers. The investigation (as revealed in the investigative report) does not show who communicated the contract in question to the lender. The investigation was simply incomplete. If the investigator had conferred with the buyers, the sellers and especially the lender, he could have ascertained-whether the lender was aware of all the facts concerning this transaction and whether there was any reason to believe that Ms. Cosyns had anything to do with the arrangement and the details of the transaction. It was ultimately established, by unrefuted evidence at hearing, that indeed Ms. Cosyns did not have anything to do with the transaction, nor the manner in which it was disclosed to the lender. The fact that she was aware that two contracts had been prepared did not give a reasonable basis for the investigator to conclude that she had engaged in any wrong-doing. The report of his interviews with Ms. Cosyns, Mr. Hurbanis and Mr. Parks, as well as Donna Ross, does not indicate that he had a reasonable basis to conclude that Ms. Cosyns had engaged in any fraudulent conduct with regard to the transaction, including the conveyance of a bogus contract to the lending institution involved, nor for that matter, that Mr. Hurbanis or Mr. Parks engaged in such conduct. In order to ascertain a reasonable basis for concluding whether Ms. Cosyns was involved in any wrongful conduct, he would have had to obtain more information than he did from these people or confer with the lender, the buyer or the seller, or all of these approaches, before he could have a reasonable basis to recommend to the prosecuting agency that an Administrative Complaint be filed against her concerning this transaction. In fact, he did not do so, but the Administrative Complaint was filed and prosecuted through hearing anyway, causing her to incur the above-referenced attorney's fees. It thus has not been demonstrated that there was any substantial basis for the filing and prosecution of Count V of the Administrative Complaint against Ms. Cosyn. Thus she is entitled to the attorneys fees referenced above with regard to the prosecution of the Administrative Complaint in question.
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether Respondent's registration as a real estate broker should be suspended or revoked for alleged violations of Sections 475.25(1)(a) , (i) & (j) , Florida Statutes. The Respondent appeared at the hearing without legal counsel and was advised as to his right to be represented by legal counsel at his own expense. He elected to represent himself at the hearing. He was also advised of his rights under the Administrative Procedure Act, including his right to testify under oath if he so desired, and he indicated his understanding of these rights. The hearing officer advised counsel for Petitioner that although the Administrative Complaint contained an alleged violation of Section 475.25(1)(i), this violation was not stated in the Notice of Hearing. Petitioner's counsel stated that Paragraph 2, Count 2, of the Administrative Complaint stated a violation of that subsection, but that it had not been alleged as a separate ground therein for adverse action. However, counsel stated that if the evidence presented indicated such a violation, Petitioner would amend its complaint at that time to conform to the evidence, and that it desired to present evidence concerning such a possible violation. At the conclusion of the hearing, Petitioner requested that this alleged violation be included in its Complaint. Respondent was advised that he could request a continuance if necessary to defend against the additional allegation, but he stated that he was able to defend against it without need for a continuance.
Findings Of Fact Respondent was a registered real estate broker during the period when the alleged violations occurred and is currently registered in the same capacity. (Petitioner's Exhibit 9). On or about February 27, 1973, Respondent was the real estate broker for Associated Real Estate of Broward, Inc., a Florida Corporation, in which he owned all of the stock. On that date, one Lawrence Tellschow delivered to Respondent a check in the sum of 4000.00 as a deposit upon property which he desired to purchase from Louise M. Orner, located in Boca Raton, Florida. Tellschow signed a deposit receipt contract on that date which provided on the reverse under "Deposit" that "(Checks issued for the deposit on this contract will be deposited promptly for clearance (after acceptance of this contract by all parties) and the holder of the deposit will not be responsible for the nonpayment of checks". Respondent thereupon obtained the signature of the seller on the contract and returned to his office at which time Tellschow told him not to deposit the check in the escrow account because he had no bank and the check was no good. He further stated that someone else was supposed to give him a check for the deposit, but had not done so. Respondent thereupon returned the check to Tellschow, called up the seller's son and informed him that there was no contract and that he would send a letter to that effect. He did so on March 1st, wherein it was stated that the check did not clear the bank and that after returning the check to Tellschow, the latter had then decided to withdraw his offer. However, Respondent also stated in this letter words that indicated he had not, in fact, deposited the check (Testimony of DeGeorge, Harper, Chappell; Petitioner's Exhibits 1,4,5,6,7) On March 1, 1973, Respondent, Henry Pinelli, Lawrence Tellschow, and Associated Real Estate of Broward, Inc., entered into an agreement whereby Pinelli and Tellschow would contribute monies for the purchase of stock in the corporation, and become officers and directors thereof. The agreement further provided that the corporation would engage in real estate investment and development. It also stated that Pinelli had made certain loans to the corporation for the purchase of properties, that he contemplated making and/or securing additional loans for such purpose, and that he would be entitled to receive a note and mortgage from the corporation as to all such funds. This agreement was modified by a later undated agreement which provided that a certain single family residence under construction at Lighthouse Point, Florida, real property owned by the corporation should be held by the corporation simply as "nominee and for the account of Henry Pinelli" who would assume all obligations and be entitled to all profits derived from said property. It further provided that Respondent and the corporation would have the exclusive right to sell the said property and that the six percent commission there for would go solely to the benefit of Respondent Respondent's Exhibits 1 & 2). The three principals in the corporation had a number of disputes with respect to the activities of the corporation which resulted in the resignation of Tellschow on June 15, 1973, and differences between Respondent and Pinelli as to entitlement to real estate commissions. Although their agreement provided that Respondent would have the exclusive right to sell properties which were acquired by funds advanced by Pinelli (and which were later deeded to him by the corporation), Pinelli gave listings to other realtors for his property located at 3531 N.E. 30th Avenue, Lighthouse Point, Florida. Respondent's conviction that he was being ill-treated by Pinelli led him to place a mechanic's lien on the Lighthouse Point property on November 1, 1973. This lien was predicated upon Respondent allegedly having furnished labor, services or materials consisting of: "exclusive sales agent". On May 9, 1974, the Circuit Court of Broward County, Florida, issued an Order requiring Respondent to remove the claim of lien. Respondent had not had the permission of the owners of the property to place the lien thereon. By the time the lien was removed, various law suits were pending between the parties which had not been resolved (Testimony of Bamman, Henry Pinelli, Patricia Pinelli, Waderlow, DeGeorge; Petitioner's Exhibits 10 & 11: Respondent's Exhibits 4-20).
Recommendation That Respondent Donald D. DeGeorge be issued a written reprimand for violation of Section 475.42(1)(j) , Florida Statutes. DONE and ORDERED this 4th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J.R. Parkinson, Esquire Mr. Donald G. DeGeorge Florida Real Estate Commission c/o Grear Real Estate, Inc. .2699 Lee Road 901 S.E. 17th Causeway Street Winter Park, Florida 32789 Ft. Lauderdale, Florida
