Findings Of Fact At all times referred to in these findings of fact, Carlson was a licensed real estate salesman having been issued License Number 0187184. The last license issued was as a salesman, c/o Pauls Real Estate and Investments, Inc., 441 East Shore Drive, Clearwater Beach, Florida 33515. From October 13, 1982, to June 28, 1983, Carlson was licensed as a real estate salesman in the employ of corporate real estate broker Alliance Real Estate, Inc. of which Nicholas G. Mastro was a qualifying broker and officer. During her employment, Carlson was employed to solicit and obtain landlords and tenants in connection with the rental property management brokerage business of Alliance Real Estate, Inc. Carlson worked out of Alliance's Clearwater Beach office, ten miles from the main office on Gulf-to-Bay Boulevard, Clearwater. Generally, Alliance's official policy was that the originals of property listings, property management agreements and rental agreements were to be maintained at the main office, with work copies filed at the Beach office. Correspondence and miscellaneous property management papers, such as invoices, frequently are maintained exclusively at the Beach office. Funds were to be deposited into, and checks were to be written out of, Alliance's operating account by Alliance's staff at the main office. However, due to the distance between the main office and the Beach office, it was inefficient and inconvenient for Carlson to follow the official policies and procedures. Instead, Carlson began using her own personal bank account as a conduit for funds flowing to and from Alliance (including brokerage fees to Alliance). She also ceased following the procedure for maintaining certain original papers at the main office and even began maintaining files at her home. Alliance knew or should have known that Carlson was using her personal bank account as a conduit for Alliance funds. Alliance's ledgers showed these transactions, and Alliance's bookkeeper wrote reimbursement checks to Carlson for some of them. Since Ronald Lohr, Alliance's qualifying broker with supervisory responsibility over the Beach office, did not testify, the evidence did not preclude the possibility that he had actual or constructive knowledge of this deviation from official policy. Regarding Carlson's maintenance of files (including original papers normally kept at the main office) at her house, Alliance did not have actual or constructive knowledge of this deviation from official policy. Rather, Alliance's minimal supervision of the Beach office gave Carlson the opportunity to deviate from that official policy without detection. Through the combined effect of these circumstances, Carlson was able to operate as a salesman for Alliance in connection with the following transactions while concealing the transactions from her employer and wrongfully retaining brokerage commissions which properly should have been paid over to Alliance. At the conclusion of these transactions (except one), Carlson "pitched" her file on it. In February, 1983, Carlson solicited and obtained $1,000.00 as rental payments from William Russ, as a tenant, for the rental of Unite 908, Clearwater Point Condominium, 830 S. Gulfview Blvd., Clearwater Beach, Florida owned by Bernhardt Elsen. In March, 1983, Carlson solicited and obtained $680 from Carl Dotterman, as a tenant, for the rental of Elsen's condominium. Notwithstanding that Carlson had received $1,680, Carlson advised Bernhardt Elsen that she had only received $1,600. Carlson disbursed $1,513.30 to Bernhardt Elsen, calculated as $1,600, minus $160 being a 10 percent management fee, plus $73.39 as reimbursement for payment of an electric bill. Carlson collected, received and disbursed the Russ and Dotterman rental money in her own name. She engaged in the Elsen rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In February and March, 1983, Carlson negotiated for her son Martin Carlson, as tenant, and Dr. Rolando Perez, as owner, for the rental of Unit 207, Commodore Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Dr. Rolando Perez. Rent was to be $800. Carlson, for her son, paid Dr. Rolando Perez $720 calculated as $800 minus $80 being a 10 percent management fee. Carlson collected, received and disbursed the Carlson rental money in her own name. She engaged in the Perez rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In April, 1983, Carlson solicited and obtained $500 as rental payment from a Mr. and Mrs. Scalise, as tenants, for the period April 9, 1983, to April 15, 1983, for the rental of Unit 701, Sailmaster Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Anthony and Jeanette Eman. On or about April 14, 1983, Carlson solicited and obtained a $100 rental deposit from Mr. and Mrs. Scalise for the rental of Eman's condominium for a period in 1984. On or about April 15, 1983, Carlson disbursed to Mr. and Mrs. Eman the $100 deposit and $200 of the $500 rental payment with $300 thereof being retained by Carlson as a management fee. Carlson collected, received and disbursed the Scalise rental money in her own name. She engaged in the Eman rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. In January and February, 1983, Carlson solicited and obtained $2,400 as rental payments from Ernest Pfau, as a tenant, for the rental of Unit 605, Shipmaster Building, Clearwater Point Condominiums, Clearwater Beach, Florida, owned by Joseph Seta. Carlson disbursed to Joseph Seta $2,160 calculated as $2,400 minus $240 being a 10 percent management fee. Carlson collected, received and disbursed the Pfau rental money in her own name. She engaged in the Eifert rental property management activities and received compensation for the performance of real estate brokerage services all without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. On or about June 7, 1983, Carlson solicited and obtained a $100 rental deposit from Lawrence Augostino, as a tenant, for the rental of Unit 706, 450 Gulf Blvd., South Building, Clearwater Beach, Florida, owned by Dr. Donald F. Eifert. Carlson was to hold the deposit until she was able to obtain a listing on the rental property. While waiting for a listing on the Eifert property, Alliance, through Mr. Mastro, became aware of one of Carlson's "secret clients," Mr. Elsen, and confronted Carlson about it. In response to Mastro's demand, she retrieved the entire Elsen file from her home. When Mastro learned about a second "secret client," Dr. Perez, a short time later, Mastro immediately terminated Carlson from her employment on June 15, 1983. Carlson did not advise Alliance of the Augostino deposit and was not able to get a good address for Augostino to return the deposit before she left the Clearwater area to go to Michigan for a month. Carlson collected and received the Augostino deposit in her own name. She engaged in the Eifert rental property management activities without the prior knowledge and consent of her employing broker, Alliance Real Estate, Inc., or any of its qualifying brokers. As previously alluded to, Carlson produced evidence of having used her personal checking account as a conduit for funds flowing between Alliance and its customers (including brokerage fees payable to Alliance) with the actual or constructive knowledge of Lohr and Alliance's bookkeeper. But Carlson was unable to produce any similar evidence (such as Alliance's ledgers or her cancelled checks) in response to the absence of any Alliance corporate records indicating that Carlson paid any of the brokerage fees generated in the foregoing transactions over to Alliance. Carlson's self-serving and vague testimony that she did not owe Alliance any money was insufficient in this respect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order suspending respondent's license for two (2) years for violating Section 475.25(1)(b), Florida Statutes (1983). RECOMMENDED this 3rd day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of July, 1984. COPIES FURNISHED: John Huskins, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32002 Bruce M. Harlan, Esquire 110 Turner Street Clearwater, Florida 33516 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent Anglickis is a Florida real estate broker holding license number 0001869. Respondent American Heritage Realty, Inc., is a corporate real estate broker holding license number 0169476. The address of both respondents is 102 East Leland Heights Boulevard, Lehigh Acres, Florida. (P-26.) Respondent Anglickis is president of American Heritage Builders, Inc., respondent American Heritage Realty, Inc., and Lee County Mortgage and Title, Inc. All three companies are located at the same address. (Testimony of Campbell; P-5, P-26.) On March 12, 1979, Louis G. Hofstetter and his wife, Dale I. Hofstetter, both residents of North Carolina, entered into a real estate contract with American Heritage Builders, Inc. Respondent Anglickis signed on behalf of American Hertiage Inc. Under the terms of the contract, the Hofstetters were to Purchase a lot and home to be constructed thereon by American Heritage Builders, Inc. The purchase price included the transfer of a lot owned by the Hofstetters and a cash down payment. (Testimony of Hofstetter; P-1, P-3, P-26.) The contract estimated closing costs to be approximately $2,000". It also contained conflicting conditions relative to the time within which any mortgage financing must be obtained. . . . In the event PURCHASER'S application for mortgage financing is not approved within sixty (60) days from date hereof, all monies receipted for, less cost of credit report, will be returned to the PURCHASER and this contract will be null and void. * * * FOR MORTGAGE TRANSACTIONS: This contract of Purchase and Sale shall be void unless Purchaser's application for Mortgage has been approved by a bank or financial institution and Purchaser has executed the Mortgage Acceptance Form, within four (3) [sic] months from date of this Contract of Purchase. 2/ (P-1, R-1.) On March 12, 1979, the Hofstetters signed a mortgage loan application and submitted it to Lee County Mortgage and Title, Inc. (P-26.) On May 5, 1979, 45 days after accepting the application, Lee County Mortgage and Title, Inc., submitted the Hofstetters' mortgage loan application to First Federal of DeSoto. (Testimony of Archer.) On June 15, 1979 (95 days after receiving the loan application), Lee County Mortgage and Title, Inc., wrote the Hofstetters indicating that the local lender needed additional information on their stock holdings, and enclosing a document titled "Good Faith Estimate of Settlement Charges". This document estimated that closing costs would be $2,754--$754 more than the estimate contained in the real estate contract. (P-5.) On June 22, 1979, the Hofstetters protested the increased closing cost, requested clarification, and provided the requested information on their stock holdings. (Testimony of Hofstetter; P-26.) On July 7, 1979, the Hofstetters notified Lee County Mortgage and Title, Inc., that the increased closing cost deviated from the contract, that they therefore considered the contract cancelled and wanted the deposit refunded. (Testimony of Hofstetter; P-8.) On June 29, 1979, Robert Campbell, vice-president of Lee County Mortgage and Title, Inc., wrote the Hofstetters and explained the meaning of each component of the closing cost. (P-7.) On July 17, 1979, respondent, as president of American Heritage Builders, Inc., wrote a letter to the Hofstetters expressing his position: * * * Let me try and put the contract in the proper perspective for you. It's our contention that you have reluctantly provided to us the information that would enable us to make a proper and expedient application to the lending institution and that much of this information has been confused, causing further delays. In accordance with the contract, you were to make this application as quickly and as expediently as Possible so that the contract would not expire. However, this is not the case. Thus, my immediate Position is that the contract should be expired and all of the deposits, including the cash and the lot which we gave you $6,995.00 trade for, would be forfeited as agreed upon liquidated damages. He ended by outlining other alternatives and repeating his asserted right to cancel the transaction and retain the Hofstetters' deposit as liquidated damages * * * First, the lending institution must make a quick determination based on the facts that they have that you are either eligible or not eligible for a mortgage loan as outlined in our contract. If they still do not have enough information, we have no other choice then but to ask you to pay the increase which we have experienced at this time (price list enclosed), and in paying that increase we would be willing to take another 90 days to try and secure a loan for you. If your mortgage loan is denied, your deposit less the costs of processing your mortgage application will be returned to you. Of course, the third choice is the choice I hope we do not have to take, and that is cancelling this transaction and retaining your monies as agreed upon liquidated damages. (P-9.) Mr. Hofstetter responded on July 22, 1979. He denied that he was responsible for any delay or confusion in the Processing of their loan application; asserted that 93 days had elapsed from the submission of their loan application and Mr. Campbell's letter of June 15, 1979, asking for additional financial information; and informed respondent Anglickis that the contract had already expired by virtue of the clause allowing 60 days to obtain mortgage financing. He then, again, asked that his deposit be returned. (P-10.) On July 30, 1979, respondent Anglickis, as president of American Heritage Builders, Inc., wrote to the Hofstetters indicating that the loan had been approved 3/ and he was prepared to build their home at the contract price. He then addressed Mr. Hofstetter's July 22, 1979, denial of any responsibility for delay in obtaining the mortgage loan: I have reviewed your letter of July 22, 1979 and I understand we certainly have a difference of opinion as to whose fault the delay has been caused by. However, I don't think it's time to look at whose fault the delay might be, since it all has worked out to your satisfaction. The mortgage has been approved and we are ready to build. I expect you will now sign the mortgage papers when receipted for so that we may begin construction immediately. (P-11.) On August 6, 1979, the Hofstetters restated to respondent Anglickis that they were not prepared to go ahead with construction, that the contract became null and void by operation of the 60-day mortgage financing clause, and that the deposit should be immediately returned. (P-12.) On August 31, 1979, respondent Anglickis notified the Hofstetters that, pursuant to the contract conditions, he was retaining their full deposit, including cash and the real estate lot for which they received a $6,995 credit toward the purchase price. The full down payment totaled $10,350. (P-1, P-13.) On September 8, 1979, the Hofstetters replied: We cannot understand why you continue to ignore the provisions of the second sentence of Paragraph Two on the reverse side of Contract No. 1997, dated 12 March 1979. You say you intend to invoke the Provisions of the third sentence of this para- graph, but this sentence is Predicated on the assumption that the mortgage would be approved within sixty (60) days. The mortgage was not approved until late July (your letter of 17 July 1979 indicated it was not yet approved, and your letter of 30 July 1979 stated that it had now been approved), more than 120 days past the date of the original contract. Our Position is as Previously stated on several occasions: on 12 May 1979 the contract became null and void, and on that date our deposit should have been refunded. Any action other than this is illegal, according to the terms of the contract. We are due return of our down payment, plus interest, from 12 May 1979. (P-24.) On October 3, 1979, First Federal of DeSoto, which had continued to process the Hofstetter loan application, issued a commitment approving the requested loan. On October 10, 1979, the Hofstetters rejected the mortgage loan. (P-26.) Subsequently, the Hofstetters wrote letters to the Florida Department of Legal Affairs and the Lehigh Chamber of Commerce complaining of respondent Anglickis' retention of their deposit; they, then, retained an attorney and filed a civil action against respondents in the circuit court of Lee County. That action was settled out-of-court. There is no evidence whatsoever to support respondent Anglickis' assertion to the Hofstetters that they were dilatory or responsible for confusion or delay in obtaining the necessary mortgage financing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against respondent American Heritage Realty, Inc., be dismissed; That respondent Richard A. Anglickis be administratively fined $1,000. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oaklnd Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Diane M. Klein, nee Diane Marie Ballantyne, has been licensed by petitioner as a real estate broker at all pertinent times, holding license No. 0314120. Petitioner's Exhibit No. 6. On September 22, 1983, Winfield F. Imel signed a contract for sale and purchase of Arrowhead County Club, which is in Broward County, Florida, on conditions including the following: New financing mortgage: this agreement is contingent upon the buyers being able to obtain a new first mortgage. Buyers agree to immediately apply for said mortgage and to pay mortgage loan costs in obtaining same. Broker to receive written mortgage commitment on or before 20 days after acceptance of contract or contract is null and void. Petitioner's Exhibit No. 1. In this transaction, Ms. Klein represented the owner of the property as a real estate broker. The total purchase price was $1,950,000.00. The seller accepted the offer and executed the contract on September 23, 1982. On September 27, 1982, Mr. Imel signed a check in favor of respondent Klein indicating "ESCROW" and "re golf-COURSE." Petitioner's Exhibit No. 2. He delivered the check to Ms. Klein as earnest money under the contract he had signed on September 22, 1982. Ms. Klein deposited the check to her escrow account, No. 0002502307 at Florida National Bank, on September 28, 1982. Petitioner's Exhibit No. 5. Mr. Imel tried to obtain money, to be secured by a new first mortgage, from more than one lender. He approached "a group in Atlanta, IVA," (T.8), Mr. Frank Porter in Phoenix, and Vicars and Associates in Maryland, as well as local banks, including First Fidelity Mortgage Corporation in Palm Beach. Dexter B. Wakefield of First Fidelity Mortgage Corporation advised Mr. Imel in November of 1982 that First Fidelity's efforts to "broker a loan on his behalf for Arrowhead Country Club" (T. 9) had not succeeded. Petitioner's Exhibit No. 4. Mr. Imel sought money from First Fidelity not only in order to purchase the property, but also for "refurbishing." Petitioned's Exhibit No. 4. Be never succeeded in obtaining financing for the acquisition and wrote respondent to that effect, requesting "a full and immediate refund of my deposit in the amount of $5,000.00," on December 7, 1982. Petitioner's Exhibit No. 3. Respondent expressly declined to refund the deposit and has never paid Mr. Imel any of the money. On October 19, 1982, respondent had written a check for $5,000.00 against her escrow account and in favor of "D.K. Operating Acc't." The check was paid October 20, 1982. Petitioner's Exhibit No. 5. The record does not reveal whether the seller ever asked for or received any money in connection with this transaction. The seller had "agree[d] to pay [respondent] as a fee, the sum of Ninety-Seven thousand and five hundred dollars ($97,500.00) or one-half of the deposits in case same is forfeited by the Buyer Petitioner's Exhibit No. 1.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for ninety (90) days. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 11th day of May, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Diane M. Klein Post Office Box 7193 Ft. Lauderdale, Florida Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 =================================================================
Findings Of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issue license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a cor- poration licensed as a real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,2.5] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January 1979 through August 1980. (T-19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34) Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T 31,32) On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd., seller, and Buck Creek Development Corporation, buyer. (Respondent's exhibit #8) Respondents did not have a co-buyer agreement with Rider and Opitz nor with Ms. Bell. (T-20,40,41) Charles Alario offered Phyllis Bell a referral fee to be paid to her broker of record. (T-41, Respondents' exhibit #6) This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18,20,21, Respondent's exhibits #1 and #9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's exhibits #4 and 5) A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's exhibit #6) Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island parcel, and against Knight Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52-54)
Findings Of Fact Respondent, Wilbur Lewis Hallock, at all times relevant thereto, was a licensed real estate broker-salesman having been issued license number 0035549 by Petitioner, Department of Professional Regulation, in 1971. He also has the designation of a Graduate of the Realtors Institute (GRI), having successfully completed its requirements. At the time the events herein occurred, Hallock was a salesman for Don Asher and Associates in Orlando, Florida. On or about August 8, 1980, Respondent, through reading the Orlando Sentinel Star, became aware of a mortgage foreclosure proceeding by Winter Park Federal Savings and Loan Association 1/ pending against James A. and Jeanie Lockwood, husband and wife, who owned a home located at 4813 and 4815 Basswood Lane, Orlando, Florida. 2/ Hallock had been told to vacate his apartment, and was in the process of finding a new home. He was "looking for a bargain" and believed he found one when he read of the Lockwoods' plight. The Lockwoods were separated at that time and only James Lockwood lived in the house on Basswood Lane. Hallock telephoned James Lockwood on Friday evening, August 8, 1980, and told him he was aware of the foreclosure proceeding and wished to meet with him to discuss a possible sale or way to avoid foreclosure proceedings. Lockwood, who was in the process of moving to Winter Haven and wished to immediately sell the property, was receptive and invited Respondent to meet with him that evening. Respondent and a lady friend (Mrs. Florence Harrison) then visited James that night. Hallock introduced himself, and showed two cards to prove his identity. Hallock made clear he did not represent his employer, Don Asher and Associates, but was simply representing himself. Although conflicting stories as to what happened during and after this first meeting were given by the various witnesses, the undersigned finds the following to be the more credible version of the sequence of events. Upon meeting Lockwood, Hallock proceeded to discuss the various alternatives available to Lockwood. These included selling the home to Hallock's brother, who lived in Miami, allowing Hallock himself to purchase the house, or simply letting the lending institution foreclose. Because the mortgage payments were in arrears and a foreclosure proceeding in progress, Lockwood offered to give the house to Hallock if he would bring the payments current. Hallock, who knew consideration for a real estate transaction was required, declined the offer and instead offered James "a minimum of $50 equity." No total purchase price was discussed since the balances on the first mortgage, and a second mortgage held by Freedom Federal Savings and Loan of Tampa, were unknown. Neither was the agreement reduced to writing. James also wished to avoid paying a commission on the sale of the house that might be due since another realtor, Area One West, Inc., held a listing. However, Hallock advised James that because Jeanie Lockwood had not signed the agreement, the listing realtor would have "no claim whatsoever." Hallock also told James that his wife needed to concur in their agreement. That same evening, Hallock telephoned Jeanie Lockwood, who resided in an apartment in Orlando. He told her he had just talked with her husband concerning a possible sale of their house, and wished to discuss the matter with her that evening. She agreed, and subsequently met Hallock and Mrs. Harrison later that evening. Also present was Jeanie's neighbor, Carol Gordon, who had been asked by Jeanie to sit in on the discussions. Hallock identified himself to the ladies, told them that he had become aware of the foreclosure proceeding by reading a newspaper, and had discussed a possible sale with the husband. He briefly described the same alternatives available to her as he had with James. When asked by Hallock whether she wished to keep the house or move into it, Jeanie stated she did not. No purchase price or equity payment was discussed that evening. However, Hallock requested Jeanie to call the two lending institutions on the following Monday morning to authorize him to ascertain the balances owed on the mortgages. He also advised her that the listing then held on the property by the other realtor was not valid because Jeanie had failed to sign the listing agreement. Hallock called James early the next morning (Saturday) and asked to meet with him. James was moving his possessions out of the home that day and told Hallock to come over right away. Upon arriving at the home, Hallock told James he had a deed prepared that conveyed the property to him and wished to have James sign it that day before he moved to Winter Haven. However, he indicated he would not record it or pay any consideration until the mortgage balances were ascertained, the chain of title checked, and final confirmation received from the Lockwoods. James agreed to meet Hallock at 10:00 a.m. that morning to sign the deed. Hallock then telephoned Jeanie and asked to meet her that morning. When they met, Hallock explained he wished her to sign the deed that day so he would not have to interrupt her work schedule during the following week. Hallock told her to meet James and himself at Wescott Realty at 10:00 a.m. to sign the papers. He also told her that "the least you will get is $100 for the house." At approximately 10:00 a.m. that morning, the Lockwoods and Hallock met at Wescott Realty in Orlando. There they executed a warranty deed conveying the property in question from the Lockwoods to Hallock (Petitioner's Exhibit 3). It was notarized by Barbara Boehmer, an employee of Wescott. Also present was Mary Black, another employee of Wescott. Prior to their signing the document, the Lockwoods were asked by Hallock if they were of legal age, were husband and wife, were under duress or threat to sign, or were subject to the influence of drugs or alcohol. Although the signing was done in a rather hasty fashion, there was no effort by Respondent to cover or conceal any portion of the document. The word "deed" was not mentioned at any time during the transaction, nor were the Lockwoods verbally advised at that time as to the nature of the document being signed. Neither was any money or other consideration exchanged. On Monday, August 11, 1980, Jeanie Lockwood called Margaret M. Norman at Winter Park Federal Savings and Loan to request the balance on the mortgage held by that institution. Mrs. Norman advised Jeanie to make the request in writing; Jeanie then prepared a letter requesting that the institution give Hallock "any information he requires regarding the foreclosure on our house at 4815 Basswood Lane." (Respondent's Exhibit 2). Hallock telephoned Jeanie on Monday evening and told her he would give her $65 equity instead of $50.00. She concurred with this amount. He also told her he was in the process of having the title checked and would not record the deed unless the title was clear. On Tuesday morning, Hallock telephoned Mrs. Norman to ascertain the balance on the mortgage held by Winter Park Federal Savings and Loan. Upon receiving preliminary information concerning the mortgage, Hallock called James in Winter Haven and advised him the wife had accepted the $65 equity offer on Monday night. The husband complained he wanted an amount closer to $100; Respondent said he would "split the difference" and upped the equity payoff to $75. The husband then gave his concurrence. At 11:43 a.m. on August 12, 1980, Hallock recorded the warranty deed signed by the Lockwoods in the Orange County Courthouse and paid $232 for documentary stamps affixed to the deed (Petitioner's Exhibit 3). He later requested and obtained from the Department of Revenue a partial refund of the stamp tax after he determined the stamp tax paid exceeded the amount actually required. After recording the deed he obtained a cashier's check in the amount of $75 and mailed it to James in Winter Haven. However, James never cashed the check and returned it to Hallock. On that same Tuesday, Jeanie called Area One West, Inc., the listing realtor, to let them know she had received foreclosure papers on the second mortgage. A salesperson told Jeanie that she had a prospective buyer for the house, and suggested they view the property that afternoon. Thereafter, two representatives of Area One West, the prospective buyer and Jeanie all met at 4815 Basswood Lane. Upon reaching the premises, they found the realtor's sign and multilock in the carport, the front door unlocked, and Hallock's car in the driveway. Inside was Hallock showing the house to a prospective buyer. Jeanie told Hallock she now had a buyer and would not sell the house for $65. Hallock told her he had bought the home, already recorded the deed she had previously signed on Saturday, and had mailed James a check for $75. Jeanie then accused Hallock of being "in cahoots" with James. On August 14, 1980, Respondent telephoned James Lockwood in Winter Haven to inquire about a lawnmower, edger and books that James had left in his house. James told Hallock to keep his books but stated he wished to keep the lawnmower and edger. During the next day or two, James came and took the lawnmower, drapes and oven racks from the house. Thereafter, Hallock called James and asked if he would swap the edger for the missing oven racks; James agreed. Hallock ultimately changed the locks on the house on Saturday, August 16, 1980. James Lockwood is a 29-year-old stockholder employed by Merrill Lynch in Winter Haven, Florida. Prior to his present employment, he worked for an Orlando automobile dealership. His wife is a secretary with the State of Florida. Although their formal education was not disclosed, James did attend college for an undisclosed period of time. Jeanie described her husband as being as honest and truthful "as the next person" but acknowledged he sometimes lied. The listing agreement with Area One West, Inc., was signed by James Lockwood and Carol Lockwood on July 3, 1980 (Petitioner's Exhibit 4). 3/ Carol is his second wife. Jeanie did not sign the agreement. The house was originally listed for $56,900 on the agreement but that figure was marked through and replaced with a figure of $49,900. Hallock purchased the house for approximately $39,600.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the complaint against Respondent Wilbur Lewis Hallock be DISMISSED. DONE AND ENTERED this 3rd day of June, 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 3rd day of June, 1981.
Findings Of Fact Kirk was a registered real estate broker licensed by the Florida Real Estate Commission at all times relative to the Administrative Complaint. Juneau Edwards negotiated a valid and binding contract for sale between Wilbur Davis as seller and Julius and Elizabeth Lau as buyers. The Laus paid $500 as a deposit under the contract on October 3, 1975 to Edwards. The contract, Exhibit 3, contains the following provisions: "Full purchase price $27,500, payable $27,500 in cash, of which the deposit shall apply as part and sale be held by said agent (Kirk Realty) in escrow pending closing of transaction, balance payable in the following manner: Cash at closing, contingent upon buyer se- curing first mortgage loan from Mid- State Federal Savings and Loan Association of Dunnellon, Florida. . ." The contract also contains a provision that the buyer forfeits his deposit if he fails to perform under the terms of the contract. The Laus submitted an application for a first mortgage in the amount of $21,000 on October 6, 1975, which was disapproved for that amount. Disapproval was communicated to the Laus by a letter from David L. Belcher dated October 15, 1975, Exhibit 7. The evidence reveals that the amount of the loan requested exceeded 80 percent of the appraised value of the Davis property by $34,000. Pursuant to the contingency provision of the contract, the contract was void when then loan request was disapproved. However, when the Laus met with Edwards and Kirk they advised them that the loan had not been approved in the amount requested, but did not demand the refund of their $500.00 deposit. Instead, when Kirk and Edwards suggested that Davis be advised and negotiations for a lower price for different terms be undertaken, the Laus assented to this. Arrangements were made by Kirk for such a meeting between Davis and the Laus; however, the Laus did not attend this meeting because they had become interested in a second house which they ultimately purchased. On October 23, 1975, the Laus applied for a mortgage to Mid-State to purchase another house using their initial application and changing the amount of the loan request to $17,500. This application was approved and the Laus closed on the second house. The Laus did not tell Kirk of their other negotiations on the second house and Kirk learned of the Lau's contract for the second house through Mid-State. After contracting to purchase the second house, the Laus contacted Kirk Realty requesting a refund of the $500 deposit paid on the Davis contract. Kirk visited the Laus at their new house and advised them that he considered them in default under the Davis contract. Kirk distributed the money to Davis and Kirk Realty on December 5, 1975 under the forfeiture provisions of the contract.
Recommendation The Hearing Officer, based on the foregoing Findings of Fact and Conclusions of Law, and considering the factors in mitigation mentioned above, would recommend that Kirk be ordered to pay Lau $500 and receive a letter of admonition. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 APPENDIX A The proposed findings regarding the contract and its provisions between the Laus and Davis presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 2 of the Recommended Order. The proposed findings regarding the negotiations before and after the disapproval of the loan application between the Laus and Juneau Edwards, a/k/a Zerban, presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 3 of the Recommended Order. The proposed findings regarding the submission of the loan application to Mid-State Federal Savings and Loan Association and its disapproval presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 3 of the Recommended Order. The testimony of Belcher in his deposition clearly established that it was disapproved for the amount sought. The proposed findings that the Lau-Davis contract was valid presented in paragraph 2 of the Proposed Recommendation Order is contained in paragraph 2 of the Recommended Order. The proposed finding that the Laus failed to make demand for their deposit presented in paragraph 3 of the Proposed Recommended Order is contrary to the testimony and evidence which indicated that the Laus delayed in making demand for return of their deposit as found in paragraph 3 of the Recommended Order and later requested their money back after contracting to purchase the second house as found in paragraph 4 of the Recommended Order. The proposed finding that the Laus breached the contract is a legal conclusion contrary to that reached by the Hearing Officer based upon the contingency provision of the contract which made the contract contingent upon approval of the Lau's loan application. When that application was disapproved, the contact became void. Therefore, the Laus could not have breached it. The Lau's representations to Kirk that Kirk should continue negotiations with Davis does not create another contract between Davis and the Laus; however, it can and has been considered in mitigation of the impression the Laus gave Kirk regarding their continued interest in the Davis property which lead Kirk to the erroneous conclusion the Laus had breached the contract. The proposed finding that there was no violation of Section 475.25(1)(c) presented in paragraph 4 of the Proposed Recommended Order Conclusions of Law is contrary to the evidence and testimony. The Proposed Recommended Order has been fully considered by the Hearing Officer this 19th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Daniel Hicks, Esquire Tucker, Hicks, Blanchard, Brannen, Dirlam and Stillwell, P.A. Post Office Box 24 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, an Agency of the State of Florida Petitioner, PROGRESS DOCKET NO. 3182 MARION COUNTY vs. CASE NO. 77-685 TYREE C. KING, t/a KIRK REALTY, Respondent. /
Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
