Findings Of Fact Respondent is and at all material times has been licensed as a real estate broker, Florida license number 0388729. Respondent was licensed with United Farm Agency of Florida, Inc. United Farm Agency of Florida operated two offices relevant to this proceeding, one office in Live Oak, the other in Lake City. Both offices were headed by William Goff, another licensed broker. During the summer of 1985, Goff, desiring to retire, made arrangements with United Farm Agency, through his supervisor, Steve Goddard, to withdraw from the operations of the offices. Goff left the Lake City office in July, 1985, and left the Live Oak office in October, 1985. Respondent was employed by United Farm Agency, through supervisor Steve Goddard, in July, 1985, when he took over operation of the Lake City office, which Goff had already vacated. Prior to Goff's retirement, Goff and Goddard verbally agreed that Goff would receive a portion of the commission paid to the seller of existing property listings Goff had obtained. This agreement was relayed by Goddard to Respondent, who verbally agreed to pay the fee on listings which were given to Hofmann. The agreed sum, referred to as a "listing fee," was to be 30% of the Respondent's 60% share of the total commission. The fee was to be paid to Goff, if and when Respondent sold property which remained under a valid Goff-executed listing contract. Goff and the Respondent did not directly discuss the arrangement, but relied on Goddard to act as the mediator. On or about June 26, 1985, Goff listed for sale, property owned by the Lewandowski family. The listing contract stated that the listing contract was to remain effective for a period of one year; however the expiration date was mistakenly entered on the contract as June 26, 1985. The contract expiration date should have been stated as June 26, 1986. The evidence did not indicate that the contract was intended to have been effective for only one day. While the Goff listing remained effective, the Lewandowskis allegedly entered into a second listing contract, this time with the Respondent. Respondent stated that he did not believe the Goff listing contract to be valid due to the mistaken expiration date. The Lewandowskis did not sign a cancellation of the Goff listing contract. Goff, not yet fully retired, continued to show the property to prospective purchasers, but did not inform Respondent that he continued to show the property. During the time the original Goff listing was effective, the Respondent found a buyer for the Lewandowski property. The agreed sales price was $240,000. The Respondent's share of the commission was about $8,640. The Respondent retained the full commission, and refused to pay the "listing fee" to Goff. Goff contacted Goddard, who reminded the Respondent of the agreement to pay the fee. Respondent refused to pay the listing fee, claiming that he had not been given the listing when he became employed by United Farm Agency. Goff proceeded to file suit to collect the fee. In May 1987, a Final Judgement was entered in Columbia County Court, Case No 86-845-CC, finding Respondent liable for payment of the listing fee and directing Respondent to pay to Goat the sum of $4,320.00, plus $604.92 interest, and $50.00 costs. Respondent has failed and refuses to pay the judgement.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of Peter K. Hofmann for a period of two years. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5541 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-5. Accepted. 6-7. Accepted, as modified in the Findings of Fact. Rejected, irrelevant. Accepted. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-3. Accepted. 4. Rejected, not supported by the weight of the evidence. 5-6. Rejected insofar as mere restatement of testimony, otherwise accepted, as modified in the Findings of Fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Peter K. Hofmann 73 Quinlan Drive, #1 Greenville, South Carolina 29611 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact In February, 1974 Respondent was a registered real estate salesman working for John R. Finn, a registered real estate broker who operated a branch office at Lake Panasoffkee, Florida. Sam R. Perroni, the father of Respondent, was the office manager of this branch office and a registered real estate salesman. Sam Perroni obtained an open listing on a parcel of land with a house trailer affixed thereto from Eugene Bays, President of Bays Construction Company, the owner of the property. Bays agreed to pay the usual commission of 6 percent if the property was sold through the effort of Finn Realty. The list price of the property was $12,500. Mrs. Dorothy B. Johnson was shown the property by Respondent and thereafter the property was shown to her and her husband Joseph P. Johnson. Following this visit to the property the Johnsons inquired of Respondent if seller would take $12,000, to which he replied he didn't think so. Johnson then offered to pay Respondent $250 if he could persuade the seller to sell the property for $12,000. Respondent then called Eugene Bays in the Johnsons' presence to advise Bays that he had an offer of $12,000 for the property and asked if Bays would accept. When Bays called back to advise he would accept the offer, the contract was prepared by Sam Perroni, executed by the Johnsons, and delivered to the seller for acceptance on Monday, February 25. Receipt for Johnson's earnest money deposit of $250 was dated February 23, 1974 as was the contract. When Respondent told Sam Perroni of Johnson's offer he also advised him Johnson had offered him a bonus of $250. Sam Perroni advised Respondent that this bonus offer should be reported to the seller, and that he, Sam Perroni, would take care of it. The executed contract was returned to Perroni on February 26, 1974 by C. V. Watson, an officer in Bays Construction Company. At this time Perroni says he advised Watson of the bonus offer, but Watson recalls no mention of any such deal. Bays was never advised and would not have sold the property for $12,000 if he had known of the bonus offer. Sam Perroni told Respondent that the sellers had been made aware of the bonus offer. On March 2, 1974, while having dinner at Sam Perroni's, Johnson delivered to Respondent a check (Exhibit 6) for the $250 bonus agreed upon. On the day of the closing when Johnson indicated he was a little short of cash for closing costs, Sam Perroni gave him a check for $60 drawn on Finn Realty. Joseph Finn accepted the contract as the broker in this transaction and was never made aware of the bonus. Of the $720 commission on the sale, $360 went to Respondent. He also retained the $250 bonus. Upon advising Sam Perroni of the offer and acceptance Respondent was not further involved in the property or the closing. Sam Perroni assisted the purchaser in securing a $4,000 purchase money mortgage on the property and in correcting the deed to the property. He considers the services performed on behalf of the purchaser merited the bonus. Some time later Johnson, who thought he had purchased a 10' x 60' trailer learned the trailer was only 55' in length and complained to the Real Estate Commission. During the course of the inquiry on this complaint Johnson "mentioned" the bonus and the charges herein involved resulted.
Findings Of Fact During the times herein involved Respondent Kramer and Pankz were registered real estate brokers and Active Firm Member of Respondent, ILB, a registered corporate broker. Registered real estate salesmen were employed to obtain listings and WATS lines installed. Lists of out-of-state purchasers of Florida land were obtained and during the hours of 6 to 10 P.M. salesmen telephoned individuals from these lists provided them by ILB. Each salesman was provided with a script to follow in making his sales pitch. As one witness recalled the substance of the script was "if you felt you could make a profit on your property would you be interested in selling it?" Those indicating interest in selling at a profit were told that ILB was engaged in land sales on a large scale, that world wide investors were interested in acquiring Florida land, that they widely advertised the land that was listed with them in a catalog that went to brokers all over the world, that Florida land had greatly increased in price in recent years, that they would evaluate the owner's land and tell him what ILB thought the land would sell for. They inquired what the owner had paid for his land and obtained enough of the description to ascertain the size of the plot. For those interested in selling, a package was sent containing newspaper clippings about foreign investors being interested in Florida land, an "Important Facts" sheet containing much of the information passed to the owner on the first telephone call, a list indicating publications and newspapers in which ILB advertises, photocopies of what purports to be inquiries received from around the world as a result of ILB's advertising, and a copy of a Listing and Brokerage agreement. When the owner was again called about a week after the first call he was quoted a price for his property, nearly double what he had paid for it, and advised if he would list the property with ILB every effort would be made to quickly obtain a buyer. It was explained that because of the expense of advertising it was necessary for the owner to pay listing fee, which was fully refundable out of the 10 percent selling commission that ILB would earn when the property was sold. The advance listing fee which the owner forwarded when he executed the listing and brokerage agreement varied between $250 and $350. The listing agreement provided, inter alia, that owner "understand(s) that this agreement does guarantee the sale of my property but that it does guarantee that you will make an earnest effort pursuant to the aforementioned provisions." Out of this listing fee the salesman was paid approximately 1/3. No arrangement was made between ILB and the salesman regarding any additional commission to the salesman if the property was sold. No effort was made by the listing salesman to sell any property listed, although one witness testified that she did ask some of those she called if they wanted to purchase property. No evidence was presented that any of the property for which listing fees were received was sold by ILB. Several of the witnesses had been told by Respondents that sales had been made, but no corroboration of this hearsay was ever presented. The Respondent brokers Kramer and Pankz refused to answer any questions regarding the operation of the corporate broker ILB on grounds that such answers might tend to incriminate them. Accordingly no substantive evidence was presented that any sales or efforts to sell the properties listed was made prior to December, 1975. Exhibit 29, the Consent Order between the Division of Consumer Affairs and ILB, corporate officers and salesmen of ILB, was entered on July 2, 1976. The Complaint in that proceeding, was the basis for Respondent's collateral estoppel argument to dismiss the instant proceeding, was filed April 10, 1976, following extensive investigation of ILB. This is pointed out solely to accentuate the fact that practically all of the documents in Exhibit 27 and 28, which were offered into evidence by Respondents to show that they were making bona fide efforts to sell the properties listed, were prepared subsequent to the commencement of the investigation of ILB. Exhibits 8, 9, and 10 were admitted into evidence, were published by Respondent but no substantive evidence was presented that these listings are "advertisements" of the properties for which Respondent received a listing fee or that they were distributed to anyone other than those making inquiries about property. In the forwarding letter printed on the inside of the front cover of these exhibits the selling brokers were offered a 7 percent commission of any cash sales they arranged. As noted above, the total commission in the Listing and Brokerage agreement was 10 percent. The information contained in these catalogs was not legally sufficient to locate the properties therein listed. Many of the land development companies which originally sold the properties which Respondents herein were soliciting listing commissions, head many unsold lots in these developments which they were offering for sale at prices less than one-half the prices Respondent had advised the owners the property would bring. Independent brokers in some of the areas involved, i.e. Lee, Collier, and Hendry counties testified that many of the lots in these developments were for resale at one-half the prices being asked by the developers. Exhibit 22, the Federal Corporate Income Tax Return for ILB for 1974 shows Respondent Kramer owned all of the stock of ILB during that taxable year and that $12.00 was spent on advertising. Exhibit 23, the Corporate Federal Income Tax Return for ILB for 1975 shows that $348,305.68 in gross receipts and deductions of $344,976.96, but no schedule of such deductions was attached. No evidence was presented regarding advertising expenses for taxable year 1975.
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. 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 on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact On June 6, 1975, respondent entered into a written agreement with John R. Lovett, III, a real estate salesman. Among other things, this agreement provided: When Salesman performs any service whereby a commission is earned, the commission when collected, shall be divided between the Broker and Salesman in the manner as set out in Schedule attached hereto, or the office policy manual of the broker. The agreement also specified that a [s]alesman's right to commissions or divisions thereof, which accrued prior to the termination of this contract shall not be divested by the termina- tion hereof. The parties stipulated that no written schedule or office policy manual ever existed but that, under an oral agreement between respondent and Mr. Lovett, respondent would have paid Mr. Lovett $441.00 if he had been employed when the Oliver-Kelly transaction closed and had otherwise performed the duties of a listing salesman. Mr. Lovett and respondent never discussed what would happen as to listing commissions when he left her employ. While employed by respondent, Mr. Lovett obtained for the firm the exclusive right to sell a home belonging to Mr. and Mrs. Oliver. Thereafter, Mr. Lovett facilitated execution of a contract between the Olivers and the Kellys in which the Kellys agreed to buy the house for $34,000.0 "contingent upon purchaser qualifying for a VA insured loan in the amount specified." On August 11, 1975, the property was appraised at less than $34,000.00; and a "VA insured loan in the amount specified" proved unavailable to the Kellys. About the time this contract fell through, Mr. Lovett said he was going to Mt. Dora to look for work. The last week of August, 1975, Mr. Lovett spent in Orlando looking for a job. At the end of the week, Mr. Lovett returned to respondent's office, cleaned out his desk and announced that he was leaving. Respondent heard him say this before she left town for a long weekend. The following Tuesday, when the office reopened after Labor Day, respondent wrote petitioner, advising that Mr. Lovett was no longer associated with her as of the date of the letter. Mr. Oliver, who had moved to Georgia, returned to Brevard County for the Labor Day weekend and contacted respondent's office. Respondent's son, who was working as a real estate salesman for his mother, reopened discussions with the Kellys. As a result, the Kellys agreed a second time to buy the Olivers' house, this time at a price of $31,500.00. This second agreement, styled an "Amendment" (sic) to the first contract, was reduced to writing and signed by the principals on August 30, 1975. This second agreement provided that respondent's office be paid a commission of $2,205.00. The transaction closed the following month. Respondent originally refused Mr. Lovett's demands for commissions on account of the Oliver-Kelly sale. After Mr. Lovett left respondent's office, however, respondent paid him both listing and sales commissions on account of another transaction which closed before he left respondent's employ. After Mr. Lovett enlisted the aid of petitioner, respondent paid Mr. Lovett $220.00 in settlement of his claim for the listing commission on account of the Oliver- Kelly sale.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 7th day of May, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida 32802 Charles Holcomb, Esquire Post Office Box 1657 Cocoa, Florida 32922
The Issue Whether Respondent committed the offenses set forth in the two-count Administrative Complaint, dated April 17, 2007, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is the state agency charged with enforcing the statutory provisions pertaining to persons holding real estate broker and sales associate's licenses in Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times relevant to this proceeding, except where specifically noted, Respondent Mathew Johnson was a licensed Florida real estate sales associate, having been issued license number SL3149081. Respondent first obtained his real estate associate's license in 2003 and worked under the license of broker Jacqueline Sanderson in Orlando. When he married and his wife became pregnant, Respondent believed that he needed a more steady income than his commission-based employment with Ms. Sanderson provided. Respondent left Ms. Sanderson's employ on good terms and commenced work as the marketing manager for the downtown YMCA in Orlando. While working at the downtown YMCA, Respondent met a member of the YMCA named Tab L. Bish ("Mr. Bish"), a broker who owns First Source, Inc., an Orlando real estate sales company (sometimes referred to as "FSI Realty"). Respondent became friendly with Mr. Bish, and expressed an interest in getting back into the real estate business. Mr. Bish offered Respondent a job at First Source. Respondent had allowed his sales associate's license to lapse while he was working at the YMCA. Respondent informed Mr. Bish of that fact, and told Mr. Bish that he required a salaried position in order to support his young family. Respondent testified that Mr. Bish was happy to hire him as an office manager, because Mr. Bish wanted Respondent to perform a marketing role for First Source similar to that he had performed for the YMCA. Respondent started working at First Source in May 2005, as a salaried office manager. Mr. Bish agreed that he initially hired Respondent as an office manager, but only on the understanding that Respondent would take the necessary steps to reactivate his sales associate's license and commence selling property as soon as possible. Respondent took the licensing course again. Mr. Bish believed that Respondent was taking too long to obtain his license, and cast about for something Respondent could do during the interim. In order to make profitable use of Respondent's time, Mr. Bish began to deal in referral fees from apartment complexes. Certain complexes in the Orlando area would pay a fee to brokers who referred potential renters to the apartments, provided these potential renters actually signed leases. Among the apartment complexes offering referral fees was the Jefferson at Maitland, which in 2005 offered a referral fee of half the first month's rent. Mr. Bish placed Respondent in charge of connecting potential renters with apartment complexes, showing the apartments, following up to determine whether the potential renters signed leases, and submitting invoices for the referral fees. Mr. Bish did not authorize Respondent to collect the payments. Respondent initiated contact with the Jefferson at Maitland and began sending potential renters there. Respondent would submit invoices to the Jefferson at Maitland, payable to First Source, for each referral that resulted in a lease agreement. Respondent estimated that he submitted between 12 and 15 invoices for referral fees to the Jefferson at Maitland during his employment with First Source. Respondent obtained his license and became an active sales associate under Mr. Bish's broker's license on November 16, 2005. Mr. Bish began a process of weaning Respondent away from his salaried position and into working on a full commission basis. Respondent stopped showing apartments under the referral arrangement and began showing properties for sale. The last lease for which First Source was due a referral fee from the Jefferson at Maitland was dated December 5, 2005. In early February 2006, it occurred to Respondent that he had failed to follow up with the Jefferson at Maitland regarding the last group of potential renters to whom he had shown apartments during October and November 2005. Respondent claimed that he "hadn't had the opportunity" to follow up because of the press of his new duties as a sales associate and the intervening holiday season. However, nothing cited by Respondent explained his failure to make a simple phone call to the Jefferson at Maitland to learn whether First Source was owed any referral fees. Respondent finally made the call to the Jefferson at Maitland on February 9, 2006. He spoke to a woman he identified as Jenny Marrero, an employee whom he knew from prior dealings. Ms. Marrero reviewed Respondent's list and found three persons who had signed leases after Respondent showed them apartments: Mike Tebbutt, who signed a one-year lease on October 26, 2005, for which First Source was owed a referral fee of $532.50; Terry Ford, who signed an eight-month lease on November 14, 2005, for which First Source was owed a referral fee of $492.50; and Juan Sepulveda, who signed an eight-month lease on December 2, 2005, for which First Source was owed a referral fee of $415.00. However, there was a problem caused by Respondent's failure to submit invoices for these referral fees in a timely manner. Respondent testified that Ms. Marrero told him that the Jefferson at Maitland had reduced its referral fee from 50 percent to 20 percent of the first month's rent, effective January 2006.2 Ms. Marrero could not promise that these late invoices would be paid according to the 2005 fee structure. According to Respondent, Ms. Marrero suggested that the Jefferson at Maitland's corporate office would be more likely to pay the full amount owed if Respondent did something to "break up" the invoices, making it appear that they were being submitted by different entities. She also suggested that no invoice for a single payee exceed $1,000, because the corporate office would know that amount exceeded any possible fee under the 2006 fee structure. Ms. Marrero made no assurances that her suggestions would yield the entire amount owed for the 2005 invoices, but Respondent figured the worst that could happen would be a reduction in the billings from 50 percent to 20 percent of the first month's rent. On February 9, 2006, Respondent sent a package to the Jefferson at Maitland, via facsimile transmission. Included in the package were three separate invoices for the referral fees owed on behalf of Messrs. Tebbutt, Ford, and Sepulveda. The invoices for Messrs. Tebbutt and Sepulveda stated that they were from "Matt Johnson, FSI Realty," to the Jefferson at Maitland, and set forth the name of the lessee, the lease term, the amount of the "referral placement fee," and stated that the checks should be made payable to "FSI Realty, 1600 North Orange Avenue, Suite 6, Orlando, Florida 32804." The invoice for Mr. Ford stated that it was from "Matt Johnson" to the Jefferson at Maitland. It, too, set forth the name of the lessee, the lease term, and the amount of the referral fee. However, this invoice stated that the check should be made payable to "Matt Johnson, 5421 Halifax Drive, Orlando, Florida 32812." The Halifax Drive location is Respondent's home address. The package sent by Respondent also included an Internal Revenue Service Form W-9, Request for Taxpayer Identification Number and Certification, for Mr. Bish and for Respondent, a copy of Respondent's real estate sales associate license, a copy of Mr. Bish's real estate broker's license, and a copy of First Source, Inc.'s real estate corporation registration. Approximately one month later, in early March 2006, Mr. Bish answered the phone at his office. The caller identifying herself as "Amber" from the Jefferson at Maitland and asked for Respondent, who was on vacation. Mr. Bish asked if he could help. Amber told Mr. Bish that the W-9 form submitted for Respondent had been incorrectly filled out, and that she could not send Respondent a check without the proper information. Mr. Bish told Amber that under no circumstances should she send a check payable to Respondent. He instructed her to make the payment to First Source. Amber said nothing to Mr. Bish about a need to break up the payments or to make sure that a single remittance did not exceed $1,000. Mr. Bish asked Amber to send him copies of the documents that Respondent had submitted to the Jefferson at Maitland. Before those documents arrived, Mr. Bish received a phone call from Respondent, who explained that he submitted the invoice in his own name to ensure that Mr. Bish received the full amount owed by the Jefferson at Maitland. On March 10, 2006, after reviewing the documents he received from the Jefferson at Maitland, Mr. Bish fired Respondent. On March 29, 2006, Mr. Bish filed the complaint that commenced the Department's investigation of this matter.3 At the hearing, Mr. Bish explained that, even if Respondent's story about the need to "break up" the invoices and keep the total below $1,000 were true, the problem could have been easily resolved. Had Mr. Bish known of the situation, he would have instructed the Jefferson at Maitland to make one check payable to him personally as the broker, and a second check payable to First Source, Inc. In any event, there was in fact no problem. By a single check, dated March 15, 2008, First Source received payment from the Jefferson at Maitland in the amount of $1,440, the full sum of the three outstanding invoices from 2005. Respondent testified that he never intended to keep the money from the invoice, and that he would never have submitted it in his own name if not for the conversation with Ms. Marrero. Respondent asserted that if he had received a check, he would have signed it over to Mr. Bish. Respondent and his wife each testified that the family had no great need of $492.50 at the time the invoices were submitted. Respondent's wife is an attorney and was working full time in February 2006, and Respondent was still receiving a salary from First Source. In his capacity as office manager, Respondent had access to the company credit card to purchase supplies. Mr. Bish conducted an internal audit that revealed no suspicious charges. Respondent failed to explain why he did not immediately tell Mr. Bish about the potential fee collection problem as soon as he learned about it from Ms. Marrero, why he instructed the Jefferson at Maitland to send the check to his home address rather than his work address, or why he allowed a month to pass before telling Mr. Bish about the invoices. He denied knowing that Mr. Bish had already learned about the situation from the Jefferson at Maitland's employee. The Department failed to demonstrate that Respondent intended to keep the $492.50 from the invoice made payable to Respondent personally. The facts of the case could lead to the ultimate finding that Respondent was engaged in a scheme to defraud First Source of its referral fee. However, the same facts also may be explained by Respondent's fear that Mr. Bish would learn of his neglect in sending the invoices, and that this neglect could result in a severe reduction of First Source's referral fees. Respondent may have decided to keep quiet about the matter in the hope that the Jefferson at Maitland would ultimately pay the invoices in full, at which time Respondent would explain himself to Mr. Bish with an "all's well that ends well" sigh of relief. Given the testimony at the hearing concerning Respondent's character and reputation for honesty, given that Respondent contemporaneously told the same story to his wife and to Ms. Sanderson that he told to this tribunal, and given that this incident appears anomalous in Respondent's professional dealings, the latter explanation is at least as plausible as the former. Respondent conceded that, as a sales associate, he was not authorized by law to direct the Jefferson at Maitland to make the referral fee check payable to him without the express written authorization of his broker, Mr. Bish. Respondent also conceded that Mr. Bish did not give him written authorization to accept the referral fee payment in his own name. Respondent has not been subject to prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: Dismissing Count I of the Administrative Complaint against Respondent; and Suspending Respondent's sales associate's license for a period of one year for the violation established in Count II of the Administrative Complaint. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2007.
