The Issue The issues to be resolved in this proceeding are whether the Respondent has committed the violations alleged in the Administrative Complaint and, if so, whether any disciplinary action against his licensure status is warranted.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: At all times material herein, Respondent was a licensed real estate salesman having been issued license number 00335420. The last license issued was as a salesman, c/o Ancla Realty, Inc., 292 Aragon, Coral Gables, Florida 33134. Respondent, on or about January 24, 1983, in Dade County, Florida, did unlawfully obtain or use, or did endeavor to obtain or use the property of another, Steffi Downs or Joann Downs, being a lamp, with the intent to deprive that person of the right to the property or of a benefit therefrom, or to appropriate the property to his own use or to the use of any person not entitled thereto, in violation of Subsection 812.014 (1) and (2)(c), Florida Statutes. As a result thereof, an information alleging petit theft was filed against the Respondent on March 1, 1983. Respondent entered a plea of nolo contendere to the information and by order of April 22, 1983, Respondent was found guilty of petit theft, adjudication was withheld, Respondent was placed on six months probation and was assessed $100.00 court costs.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law it is Recommended that a Final Order be entered which would: Dismiss Count I of the Administrative Complaint; Find the Respondent guilty of the violation charged in Count II of the Administrative Complaint; and Revoke the Respondent's license, without prejudice to his reapplication for licensure upon a showing of rehabilitation. DONE and ORDERED this 24th day of July, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Mr. Eddie Garcia 1260 N. W. 124th Street North Miami, Florida 33167 Harold Huff, Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Orlando Florida 32801
Findings Of Fact By Joint Prehearing Stipulation filed in this cause on March 7, 1980, counsel for Petitioner and Respondent stipulated, among other things, that: Petitioner seeks relief from an Order of the Board of Real Estate dated 16th day of October, 1979, denying the granting of a real estate salesman's license to the Applicant- Petitioner pursuant to 475.17 Florida Statutes [sic]. Respondent seeks to uphold said Order pursuant to Section 475.17 Florida Statutes. Petitioner seeks to show rehabilitation and qualification because of lapse of time and subsequent good conduct and reputation and that the interest of the public and investors will not [sic] likely be endangered by the granting of registration. Respondent seeks to show that change has not taken place and that the Petitioner is not qualified. (e) The Counsel for the parties hereto stipulate that Constance B. Mastellone a/k/a Connie B. Martin was a registrant of the Florida Real Estate Commission and that said registration was revoked and that she subsequently appealed to the Board of Real Estate for registration and that said registration was denied in the Order dated the 16th day of October, 1979. In addition, counsel for the respective parties stipulated into the record in this proceeding a certified copy of a Final Judgment dated January 4, 1977 in Case No. 74-36190, in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, wherein Diane Zeppo was the Plaintiff and Petitioner, who was at that time a registered Florida real estate broker, was the defendant. In entering a judgment against Petitioner in the amount of $4,000 for compensatory damages and $6,000 for punitive damages, the Circuit Court found that Petitioner, in her capacity as a real estate broker: . . .represented to the plaintiff that she would get the highest and best price that she could for [plaintiff's] property and to expedite such a sale, the plaintiff executed a deed to said property with a blank grantee, and delivered it to the defendant for the sole purpose of implementing and expediting a subsequent sale to be agreed upon, that instead of attempting to obtain the highest and best price for the plaintiff, the defendant, in derogation of her duties and responsibilities as a Real Estate Broker, intentionally deceived the plaintiff into believing that the highest price available was $26,500.00 when in fact the defendant had contracted for a sale of said property for a sale price of $33,000.00, that the defendant in breach of the trust and confidence reposed in her by the plaintiff and in breach of the trust agreement whereby the blank grantee deed, Plaintiff's Exhibit 17, was delivered to her in trust, did voluntarily insert therein her own name and used said deed in an attempt to transfer the title to said property from her client, the plaintiff, to herself, the broker, and in conjunction with so doing, the defendant did cause the plaintiff's tenants to vacate the property and did thereby interrupt the rental income which the plaintiff was receiving from said property in the amount of $275.00 per month, which was last received by her for the month of April, 1974; that the plaintiff has received no rental income from said property from said date to the present, caused solely and only by reason of the fraudulent, willful, and intentionally wrongful actions of the defendant-broker, CONSTANCE B. MASTELLONE, that the deed wherein DIANE ZEPPO is the named grantor, CONNIE B. MARTIN is the named, wrongfully inserted grantee dated the 2nd Day of April, 1974, whereby the above described property was purportedly transferred as recorded in Official Records Book 5756 Page 1504 is void and of no effect, and the plaintiff was entitled to continue to receive said rental income and would so have received said rental income, but for the wrongful actions of the defendant. . . It appears from the record in this proceeding that Petitioner was initially licensed as a real estate salesperson in the State of Florida in 1969 or 1970. At some time thereafter, which date does not appear in this record, she was apparently registered as a real estate broker. Subsequently, in December, 1978, Petitioner received a notice from the Florida Real Estate Commission that her real estate broker's license had been revoked. Revocation proceedings before the Florida Real Estate Commission had apparently been ongoing since 1974. No part of the record before the Florida Real Estate Commission leading to the revocation of Petitioner's real estate broker's license was made a part of the record in the instant proceeding. In fact, it is impossible to tell from the record in this case either the factual or legal basis for the Florida Real Estate Commission's revocation of Petitioner's real estate broker's license. Despite the recitations contained in the Final Judgment against Petitioner in Zeppo v. Mastellone, a portion of which is quoted above, no factual testimony was elicited in this proceeding that in any way connected the facts at issue in that case with the revocation of Petitioner's real estate broker's license. Each of the witnesses called by Petitioner uniformly testified as to their high estimate of her reputation for honesty and trustworthiness and to her knowledge of the real estate profession. However, none of these witnesses, whose acquaintance with Petitioner varied from periods of one to ten years, indicated that they had any knowledge of the fact's leading to the revocation of Petitioner's real estate broker's license, or to the facts giving rise to entry of the final judgment in Zeppo v. Mastellone. Additionally, these witnesses' acquaintanceships with Petitioner relate primarily to that period of time predating the revocation of her real estate broker's licenses, and those few witnesses having any contact with her subsequent to the revocation of her license indicated that that contact was either minimal, or was in the context of social rather than business matters. In her own direct testimony, Petitioner did not address herself to the facts giving rise to the revocation of her broker's license, nor did she attempt to explain the factual situation involved in Zeppo v. Mastellone. Although Petitioner indicated that she felt that she had rehabilitated herself sufficiently to be licensed as a real estate salesperson, she gave no testimony as to any affirmative steps taken by her since the revocation of her license as evidence of that rehabilitation.
Findings Of Fact Respondent is a licensed real estate salesman in the State of Florida, holding license 0443159. Respondent voluntarily placed her real estate salesman's license on inactive status on September 15, 1986. Her license was in inactive status at all times material hereto. Respondent, as owner, advertised for sale a house she owned at 3201 N.W. 100th Street, Miami, Florida. Gary Cooper visited the Respondent's property on November 11, 1987, in response to the Respondent's advertisement. Mr. Cooper agreed to buy the property during this visit. On November 11, 1987, Mr. Cooper and Respondent entered into a contract whereby Mr. Cooper agreed to buy the house owned by Respondent for $68,000.00. As required by the terms of their agreement, Mr. Cooper paid to Respondent the sum of $1,000.00 upon executing the contract. Respondent deposited these funds in her personal bank account. Respondent took the house off the market when she entered into the contract with Mr. Cooper. The contract signed by the parties on November 11, 1987, was a form contract, the terms of which were completed by Respondent. Respondent did not attempt to mislead or trick Mr. Cooper when she completed the terms of the contract. Respondent did not offer Mr. Cooper any advice and she did not try to pressure Mr. Cooper into signing the contract. Mr. Cooper read the contract before he signed it. Mr. Cooper had difficulty obtaining the financing he required to close on the transaction. As a result, Mr. Cooper could not close on December 15, 1987, the date set by the contract as the closing date. Respondent extended the closing date in an attempt to assist Mr. Cooper by giving him more time to obtain his financing. Toward the end of January of 1988, Respondent told Mr. Cooper that the deposit he had given was at risk if he could not get financing. Mr. Cooper did not respond to Respondent's telephone inquiries and did not get the financing he needed to close the transaction. Respondent was not responsible for Mr. Cooper's inability to get financing. In February of 1988, Respondent put her house back on the market. Respondent refused Mr. Cooper's subsequent demands for a refund of the deposit. Mr. Cooper brought a civil action against Respondent in Dade County Court seeking damages, costs and attorney's fees based on Respondent's refusal to refund the deposit. Following default by Respondent, a judgment was entered against Respondent and in favor of Mr. Cooper for damages, costs and attorney's fees in the total amount of $4,282.50. This judgment has been paid in full by Respondent. Respondent is attempting to set aside the default and the judgment entered as a consequence of the default.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is therefore RECOMMENDED that the Administrative Complaint filed against Respondent, Dawn Michelle Michaels, be dismissed. DONE and ENTERED this 22nd day of May, 1989, at Tallahassee, Florida. CLAUDE B. ARRINGTON 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 May, 1989. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Neil F. Garfield, Esquire Suite 200 Envirwood Executive Plaza 5950 West Oakland Park Boulevard Lauderhill, Florida 33313 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Respondent, George N. Osburn, is a licensed real estate salesman having been issued license number 0065910 and he was so licensed on or about February 26, 1979. The Petitioner, the Department of Professional Regulation/Board of Real Estate (now Florida Real Estate Commission), is an agency of the State of Florida, having jurisdiction over licensing and regulatory matters concerning real estate salesmen and brokers. On February 26, 1979, the Respondent went to the home formerly occupied by his former wife and himself prior to their divorce, which was final before the above date. The Respondent went to her house to obtain some records which he needed to execute his Federal Tax Return. The Respondent came on the porch of the house and walked into the house where his former wife and a Mr. Lacey were seated on the couch. The Respondent's former wife told the deputy who investigated the incident that night, and who testified at the hearing, that she had invited the Respondent in. Mr. Lacey testified at the hearing that the Respondent simply walked in uninvited. The deputy, in the deposition taken prior to the hearing, acknowledged that Mrs. Lacey, the Respondent's former wife, told him on the evening of the investigation of the incident that the Respondent came in at her invitation. Mrs. Lacey and Charles Lacey maintained at the hearing that the Respondent came in their premises uninvited. Thus, the evidence is conflicting on whether the Respondent entered the premises of his former wife without permission, but there is no preponderant evidence which establishes that he entered without invitation. There is no question, however, that he did not force entry. The former Mrs. Osburn discovered no items of property missing from her premises after the Respondent left. The Respondent was ultimately charged with burglary and upon his attorney's advice at the time, entered a "best interest" plea of nolo contendre to the charge in return for which he was promised and received a one-year probation with adjudication of guilt withheld. The acts the Respondent was charges with committing as a basis for the burglary charge occurred February 26, 1979. The Order of the Circuit Court placing the Respondent on one-year probation, with adjudication of guilt withheld, was entered on approximately May 7, 1981. The Respondent was not shown to have any previous violations assessed against his license.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and pleadings and arguments of counsel, it is, therefore RECOMMENDED: That the Respondent, George N. Osburn, be found not guilty and that the Administrative Complaint filed in this cause be DISMISSED and case number 82-175 be hereby CLOSED. DONE and ENTERED this 20th day of August, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, 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 20th day of August, 1982. COPIES FURNISHED: Mark P. Kelly, Esquire FREEMAN & LOPEZ, P.A. 4600 West Cypress, Suite 410 Tampa, Florida 33607 Bernt Meyer, Esquire 2072 Ringling Boulevard Sarasota, Florida 33579 Frederick H. Wilsen, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 C. B. "Joe" Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, Douglas R. Bess, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. From on or about April 1987 until the end of May 1988 Respondent managed the rental property of Donald and Ilene Houseman. This rental property, located in West Palm Beach, Florida, consists of six duplexes containing a total of twelve residential units. Respondent managed, for a fee, the Houseman's property under the fictitious name of Prime Real Estate Management. Prime Real Estate Management is an unincorporated entity which has not been registered with Petitioner and which has no qualifying broker. During the course of his management of the Houseman property, Respondent advertised the units for rent with advertisements containing his telephone number. Respondent dealt with prospective tenants on the telephone and in person. Respondent collected security deposits and monthly rental payments from the tenants. Respondent paid certain expenses, including the Housemans' mortgage payment, from the funds he collected. Upon receiving a security deposit from a new tenant, Respondent would sign receipts for the deposits which stated that Prime Real Estate Management was a "realtor" and that Respondent was acting as a " broker and agent". The security deposits Respondent received from new tenants as well as monthly rental payments were placed by Respondent in his personal bank account and commingled with his personal funds. Between April 1987 and December 1987, Respondent was employed by Prime Real Estate of the Palm Beaches, Inc. as a real estate salesman. Respondent's father was the qualifying broker for this corporation until it went out of business. In December 1987 Respondent placed his license with Worth Properties, Inc. where it remained until his services were terminated in June 1988. During these periods of time Respondent continued to manage the Houseman's property for a fee under the name of Prime Real Estate Property Management. At no time did Respondent place the funds he had received from tenants on behalf of the Housemans in the escrow account of his broker. On June 7, 1988, the Housemans terminated Respondent's services and employed Michael Ford, broker for Bowen Property Management, to manage their properties. After his services were terminated, Respondent was unable to account for the sum of $1,765.00 which he had received as rent or as security deposits. Respondent converted to his own use funds that he had received as deposits from the Housemans' tenants. Respondent misrepresented to the Housemans that he had paid on their behalf garbage collection assessments and ad valorem taxes. Respondent attempted to cover up his misrepresentations by writing checks on a closed bank account and thereafter showing the bad checks to Mrs. Houseman with the further misrepresentation that the expenses would be paid with the checks. The factual allegations of the Administrative Complaint filed by Petitioner to initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds that Respondent violated Section 475.25(1)(d), Florida Statutes, as alleged by Count II of the Administrative Complaint, and which further finds that Respondent violated Section 475.25(1)(e), Florida Statutes by violating Section 475.42(1)(b), Florida Statutes, as alleged by Count III of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, Douglas R. Bess. DONE and ORDERED this 28th day of July, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1989. APPENDIX The proposed findings submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 3. Addressed in paragraph 7. Addressed in paragraphs 6 and 7. Addressed in paragraph 4. Addressed in paragraph 8. Addressed, in part, by paragraphs 7 and 9. Rejected, in part as being unestablished by the evidence or subordinate to the conclusions reached. Addressed in paragraph 10. Addressed in paragraph 9. Rejected as being unnecessary to the result reached. Rejected as being unnecessary to the result reached. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 DOUGLAS R. BESS 4604 WATERVIEW CIRCLE PALM SPRINGS, FLORIDA 33461 KENNETH E. EASLEY, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 1940 NORTH MONROE STREET, SUITE 60 TALLAHASSEE, FLORIDA 32399-0792 DARLENE KELLER, DIVISION DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF REAL ESTATE 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802
Findings Of Fact Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no". Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50. When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants. Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least $250. He pleaded guilty to the charge. The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him. Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton. His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the charges against Respondent, Linda N. Phillips, be DISMISSED. DONE and ENTERED this 16th day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
Findings Of Fact At all times pertinent hereto, Respondent, George R. Gurley, was a registered real estate broker-salesman in the State of Florida operating under License No. 0034797 issued by the Florida Real Estate Commission on April 1, 1979. Mr. Gurley arranged the sale of certain property on Highway 542 in Lakeland, Florida, owned by Lakeland Skyview, Inc., Durward Harrell and Charles J. Ziemba to Joseph D. De Silvestro. This sale was initially arranged in a contract executed on April 5, 1979, by Mr. De Silvestro, as buyer, and Charles J. Ziemba, individually, and Hobart H. Joost, President of Lakeland Skyview, Inc., for the seller. Sale price was to be $70,000 with a $1,000 deposit being held in escrow by R/D Parker Realty Company. A commission of 10 percent ($7,000) was called for in that portion of the contract providing for method of payment, but was not referenced in the brokerage fee portion of the contract at the bottom of the first page thereof. Respondent, Gurley, and two others were listed as witnesses. Thereafter, before this contract was closed, on May 4, 1979, Respondent arranged a resale of the property from Mr. De Silvestro to American Vault Bed Corporation with a purchase price of $90,000 of which, again, $1,000 was to be held in escrow by the R/D Parker Realty Company. This contract made no provision for any real estate commission. This second contract was witnessed as to both buyer and seller by Respondent. The property in question was originally listed with R/D Parker Realty Company on November 10, 1978, by Mr. Joost, President of Lakeland Skyview, Inc., on an exclusive right of sale contract form which was accepted by Mr. Gurley, the Respondent. Because Mr. Joost had worked with Respondent previously and was aware of his reputation, he listed the property with Respondent in preference to another real estate agent. According to Ms. Parker, who ran the real estate company, though the form indicates the listing was an exclusive, it was, in fact, not entered into the multiple listing service. Mr. De Silvestro, the individual who purchased the property in the first transaction, was himself a real estate broker-salesman who was at the time working as office manager for R/D Parker Realty Company. At the time of both transactions, it was the policy of Parker Realty that salesmen working for the company could make two transactions per year in their own names without paying any commission to Parker Realty so lone as Ms. Parker was made aware of it in advance. In the instant case, Parker Realty did not get a share of the commission, nor did Ms. Parker know about either sale at the time. She found out about them in June, 1982, after both Respondent and Mr. De Silvestro had left their association with her firm, in the summer of 1979. Both transactions were closed by mail by Stewart Title Company off Polk County during the period from late May to mid-June, 1979. The buyer's closing statement dated May 29, 1979, for the first sale to Mr. De Silvestro does not reflect a broker's commission. However, a check in the amount of $2,829.51, drawn by Stewart Title of Polk County, Inc., on its escrow account, made payable to Charles J. Ziemba and S. A. Rice, dated June 28, 1979, bears the notation "payment in full for note from George R. Gurley dated June 8, 1978, with interest in full." Both Mr. Gurley and Mr. Ziemba acknowledge that this check was a portion of the $3,500 Mr. Gurley received as commission on the sale to Mr. De Silvestro and which was paid to Mr. Ziemba in fulfillment of a prior existing debt to him. The following day, June 29, 1979, an additional check was drawn on the escrow account of Stewart Title of Polk County, Inc., payable to Randy Gurley in the amount of $670.49, which bears the notation, inter alia, "for balance of realtor's commission." Randy Curley is, in fact, Respondent. Mr. Gurley acknowledged that this figure, which, when added to the amount of the prior mentioned check totals $3,500, was his share of the real estate commission earned on the property in question to Mr. De Silvestro. The balance of the real estate commission of $7,000, in the amount of $3,500, was never paid either to Mr. Gurley or to Parker Realty. No evidence was presented to indicate where that $3,500 went, if, in fact, it was paid at all. Testimony in this area came from Karen Beck, an agent with Stewart Title, who was not, however, the closing agent for this transaction. Her testimony, based on what the actual closing agent told her, and therefore hearsay, leads her to conclude that the "parties," De Silvestro and Gurley, had indicated the commission was to be handled as it was. On June 12, 1979, Stewart Title received a check for $2,000 from R/D Parker Realty Company, which represented the $2,000 paid as deposits into Parker Realty Company's escrow account on the two sales in question. The check for $2,000 was signed by Ms. Parker's son, Richard, who was a partner in R/D Parker Realty and who had authority to execute the check in question. Mr. Parker was not present at the hearing, nor did he testify as to whether he had given Mr. Gurley authority to keep his half of the commission and not forward any of the commission to Parker Realty, the broker. Mr. Gurley at no time was an owner of the property in question, nor did he realize any profit from either sale. His sole compensation came from the commission he received from the sale of the property initially to Mr. De Silvestro. This does not fall within the permitted transactions referred to by Ms. Parker, whereby employees could make two purchases per year without paying commission. Respondent, Gurley, who has held a salesman's license since 1972 and been a broker since 1974, contends he has never, in all those years, done anything in the practice of the real estate profession which would warrant disciplinary action by the Real Estate Commission. He contends that both he and Mr. De Silvestro acted with the knowledge of the broker, R/D Parker Realty; they used office forms; used office witnesses; and the deposit monies placed on both contracts went into the office escrow account. Mr. Gurley contends that the entire transaction was open and aboveboard and that when he acted, he felt he was authorized to do this. Though he contends Ms. Parker's son, Richard, acknowledged that what Gurley was doing was appropriate, Ms. Parker indicates her son denied any knowledge of what Respondent and De Silvestro were doing. On balance, it is found that neither Gurley nor De Silvestro notified Parker Realty, in the form of Ms. Parker or Richard Parker, as to the details of the transaction. Respondent is a minister, has no criminal record, no bad debts and no difficulties with the law of any kind. He applied for a renewal of his license In April, 1982, but has had no notice of denial. The records of the State of Florida submitted pertaining to Respondent's licensure status, however, reflect his licensee as a broker was issued on January 21, 1983, and is effective until September 30, 1984. That would make his license current at the present time.
Recommendation In light of the foregoing, it is, therefore, RECOMMENDED: That Respondent be reprimanded. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of January, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. George R. Gurley 800 East State Road 540A, #106 Lakeland, Florida 33803 Mr. Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Evidence reveals that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. Said application revealed that Defendant, Frank Viruet, was to become the Active Firm Member Broker, and Vice president of the Company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; and that Lee Klien was to become president and Director of the company. The application also revealed that Carol Bauman is the wife of the Defendant Bernard Bauman (Progress Docket #2357); that Lee Klien is the sister of Carol Bauman; and that Defendant Jeffrey Bauman (Progress Docket #2858) is the son of Bernard Bauman. Subsequent to filing the above corporate application For registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that at each such change, new application For corporate registration was filed with the Commission. Further, the stated offices and Active Firm Member Broker remained the same. Thus, For all legal purposes, the above corporate entities are one and the same. As to Count One of the complaint, according to the certificate of the Commission's Chairman, dated December 3, 1976, (which was offered and received into evidence without objections), during the period November 1, 1975 through the date of said certificate, no registration was issued to or held by either of the three corporations above referred to. This was confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet the broker, who was to have become the Active Firm Member Broker For the above entities. Approximately December 2, 1975, evidence reveals that Land Re-Sale Service, Inc., entered a written lease For office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, For the period January 1 through December 31, 1976. (A copy of the lease was entered into evidence by stipulation). The unrebutted testimony by Plaintiff Reagan was that he observed during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty, Inc., Room 212 (2nd Floor). A similar display on the building directory appeared on the second floor. Plaintiff's witness, Peter King, a representative of and For Southern Bell Telephone Company, testified that on December 27, 1975, three phones were installed in said room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc., and that from January 1 through January 16, 1976, approximately 575 phone calls were made from such phones during evening hours to out-of-state numbers. Jeffrey Bauman and Bernard Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but did not recall nor introduce records as to how many calls were in fact made. Jeffrey Bauman testified that Frank Viruet had also made phone calls from the stated phones but did not state whether they were solicitations. On this point, Frank Viruet denied making solicitation calls although he admitted using the phone For other purposes. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 For each listing received. He further testified that upon being advised, by the investigator with the Commission, that the operation was in violation of the licensing law by reason that no registration had been issued to the applicant company, and that all who were engaged in real estate activities For said company were in violation of the licensing law, the premises were closed and all real estate activities ceased. This was confirmed by nominal Plaintiff Reagan. Frank Viruet denied having knowledge of real estate activities being conducted by the Baumans. He further denied knowledge that office space in Room 212 of the Nankin Building was occupied by Land Re- Sale Service, Inc. and used by the Bauman's. He admitted to signing the application For registration which was submitted to the Commission as the corporate Active Firm Member Broker to be. As to Count Two, evidence established as stated above, that defendants Jeffrey and Bernard Bauman had solicited real estate sales listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, the Baumans, admitted by their own testimony that their listings were never published or otherwise disseminated to brokers either intrastate or nationwide. Bernard Bauman testified that no money was ever returned to senders. There was no evidence received to show that Defendant Frank Viruet knew that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation; nor that Viruet was aware that solicitations were being made. As to Count Three, Plaintiff alleges that the acts and doings set out in Counts One and Two establish a course of conduct by defendants upon which revocation of their registration should issue.
