Findings Of Fact In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure. Question number 62 reads as follows: The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF: NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE. Possible answers to question number 62 were as follows: I only. II only. I and III only. I, II and III. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the Petitioner as previously determined. DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows: Rejected as unnecessary. Included in findings 5, and 7. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced. 7. Rejected as argument. Respondent's Proposed Findings The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows: 1.-5. Rejected as conclusions of law. 6. Included in findings 8, 9, and 10. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Phillip I. Salerno 11812 Timbers Way Boca Raton, Florida 33428 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues are as follows: (a) whether Respondent acted as a real estate agent/sales associate without being the holder of a valid and current real estate license in violation of Section 475.42(1)(a), Florida Statutes, and therefore, in violation of Section 455.228, Florida Statutes; and, if so, (b) what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to Chapters 455 and 475, Florida Statutes. As such, Petitioner is authorized to prosecute cases against persons who operate as real estate agents/sales associates without a real estate license. At all times material, Respondent was not a licensed Florida real estate agent/sales associate or broker. From January 2005 to June 2007, Respondent worked as a secretary/administrative assistant to Gail Gee, licensed Florida real estate agent and broker affiliated with Tradewinds of Mandalay, Inc., trading as Tradewinds Realty, a brokerage corporation located in or near Crystal River, Florida. Respondent was not the only secretary in the office. In 2005, Ms. Gee had three real estate sales offices. The offices were located in Beverly Hills, Ozello, and Crystal River, Florida. Respondent began working at Ms. Gee's main office in Ozello, Florida. Ms. Gee was at that office seven days a week in 2005. Ms. Gee paid Respondent hourly wages. Respondent's duties included the following pursuant to Ms. Gee's instructions: (a) answering the phone and taking messages; (b) faxing documents and e-mail listings; (c) placing advertisements; (d) drafting contracts; and (e) researching public property records. Ms. Gee took Respondent to a convention so they could participate in a class where the need for an agent to have a policy and procedure manual was discussed. Ms. Gee bought a computer disc of the proposed manual and subsequently used it to create one of her own. Ms. Gee had all of her associate agents and employees sign the manual. The manual advised the employees, including Respondent, what they could and could not do. Sometime before February 2005, Bruce Sculthorpe of Ann Arbor, Michigan, found some property in Citrus County, Florida, listed for sale on the internet. One property was located at 9844 North Burr Oak Terrace, in the Crystal Manor area of Crystal River, Florida. The other property consisted of two lots, Lots 206 and 207, in Waterman Subdivision, in Citrus County, Florida. Mr. Sculthorpe then contacted Ms. Gee to make further inquiries about the properties. On or about February 7, 2005, Bruce and Julie Sculthorpe brought the property located at 9844 North Burr Oak Terrace from Mary Lynn Netzel, for $25,063.50. As a result of this transaction, Ms. Gee received a commission in the amount of $2,500. The Sculthorpes bought the property without seeing it. On or about February 8, 2005, the Sculthorpes listed their property located at 9844 North Burr Oak Terrace, Crystal River, Florida, with Ms. Gee. The exclusive listing agreement indicates that the sale price for the property was $75,000 and that the Sculthorpes agreed to pay Ms. Gee a 10 percent commission. Later in February 2005, Mr. Sculthorpe learned that Respondent worked for Ms. Gee. Neither Ms. Gee nor Respondent ever represented to the Sculthorpes that Respondent was a licensed real estate agent. In March or April of 2005, Julie Sculthorpe came to Florida to see the property located at 9844 North Burr Oak Terrace for the first and only time. Ms. Sculthorpe made the trip with two female friends. Ms. Sculthorpe was over an hour late to her appointment with Ms. Gee who had another appointment pending. Ms. Gee understood that Ms. Sculthorpe just wanted to see her property and was not interested in purchasing property or doing any business. Ms. Gee introduced Ms. Sculthorpe to Respondent as her secretary/assistant. Ms. Gee asked Respondent to use Ms. Gee's van to take Ms. Sculthorpe and her friends to see the Sculthorpes' property and the surrounding properties because they were unfamiliar with the area. Respondent did not "show" Ms. Sculthorpe other properties with the intent to interest the Sculthorpes in future purchases. The trip consisted of going to 9844 North Burr Oak Terrace and back without stopping anywhere else to look at property. During the trip to 9844 North Burr Oak Terrace, Ms. Sculthorpe was not impressed with the surrounding property. She indicated that she and her husband would not be interested in property that looked like "Sanford and Son," with "trailers and license plates in their decorative stuff all over the front of their yards and stuff." Respondent did not advise Ms. Sculthorpe to lower the price on the property located at 9844 North Burr Oak Terrace in order to sell it quickly. Ms. Gee eventually made that suggestion to the Sculthorpes. The record is silent regarding the circumstances of the Sculthorpes’ purchase of property in the Waterman subdivision. On or about June 28, 2005, the Sculthorpes listed their properties, Lots 206 and 207, in the Waterman Subdivision, Crystal River, Florida, with Ms. Gee. The listing price for each lot was $175,000. The Sculthorpes agreed to pay Ms. Gee a commission in the amount of 8 percent on each lot. On or about August 1, 2005, Gustavo Roperto and Nathalie Roperto of West Palm Beach, Florida, bought property located at 9844 North Burr Oak Terrace, Crystal River, Florida, from the Sculthorpes for the contract sales price of $70,000. As a result of this transaction, Tradewinds Realty and Exit Realty, of Naples, Florida, each received $2,800 in commission. The Sculthorpes made about $40,000 in profit in about six-months time. Ms. Gee negotiated the sale price of the property located at 9844 North Burr Oak Terrace. Respondent's only involvement in the sale was in facilitating communication between the Sculthorpes and Ms. Gee. Respondent did not locate the buyers, Mr. and Mrs. Roperto, or make any decision or make any statement about the property to the Sculthorpes, other than as instructed by Ms. Gee. On September 3, 2005, Julie Sculthorpe's son died. Mr. Sculthrope had subsequent conversations with Respondent regarding the need to find a home for the deceased son's dogs. Later, Mr. Sculthorpe talked to Respondent about other personal matters, like finding a Christmas gift for his wife, Julie Sculthorpe. On or about September 21, 2005, the Sculthorpes signed a contract to purchase property located at 1106 South Ozello Trail in Citrus County, Florida, from Willard Radcliffs of Brooksville, Florida. The property is also described as Lots 9 and 10, St. Martians Esturary Retreats, Unit 1, in Citrus County, Florida. The Sculthorpes agreed to pay Mr. Radcliffs $285,000.00 for the property. The sales contract indicated that Tradewinds Realty would receive commissions as the selling and listing real estate agent. The sale of the property located at 1106 South Ozello Trail closed on October 27, 2005, giving the Sculthorpes title to the property. Tradewinds Realty received a commission in the amount of $17,000 for the sale of the property. On or about October 7, 2005, the St. Lucie Development Corporation, located in Vero Beach, Florida, bought property described as Lot 206, Waterman Subdivision in Crystal River, Florida, from the Sculthorpes for the contract sales price of $160,000. As a result of this transaction, Tradewinds Realty and Kevin S. Hawkins each received commissions in the amount of $6,400. On or about October 7, 2005, Orion Property and Sales, Inc., located in Ft. Pierce, Florida, bought property described as Lot 207, Waterman Subdivision in Crystal River, Florida, from the Sculthorpes for the contract sales price of $160,000. As a result of this transaction, Tradewinds Realty and Kevin S. Hawkins each received commissions in the amount of $6,400. Lots 206 and 207, located in the Waterman Subdivision in Crystal River, Florida, are sometimes referred to in the record as the Hunt Point Lots. There is no persuasive evidence that Respondent had any involvement in the sale of the Hunt Point property to St. Lucie Development Corporation and to Orion Property and Sales, Inc., other than as instructed by Ms. Gee. On or about November 15, 2005, the Sculthorpes listed the property located at 1106 Ozello Trail (Lots 9 and 10 in St. Martians Estuary Retreats) for sale with Ms. Gee. The Sculthorpes signed on exclusive listing agreement to sell Lot 9 for $249,000. They signed another exclusive listing agreement to sell Lot 10 for $249,000. In both agreements, the Sculthorpes agreed to pay Ms. Gee a commission in the amount of 8 percent. Ms. Gee subsequently advertised Lot 9 in St. Martians Estuary Retreats as for sale for $214,000. At the time of the hearing, the Sculthorpes still owned the property located at 1106 Ozello Trail (Lots 9 and 10 in St. Martins Esturary Retreats). When the Sculthorpes purchased the property at 1106 Ozello Trail, there was a stilt house on one lot and a screened enclosure with a fireplace on the other lot. The Sculthorpes paid to have both structures removed before listing the lots for sale. Respondent was not involved in finding someone to remove the structures for Bruce and Julie Sculthorpe. Respondent began working part-time for another real estate broker/developer, John Holdsworth, sometime toward the end of 2005. Mr. Holdsworth owned a restaurant across the street from Ms. Gee's office. Mr. Holdsworth hired Respondent to manage the restaurant because of her prior experience owning and operating a pizzeria. Ms. Gee and Mr. Holdsworth paid Respondent by the hour for time spent in each respective business. Ms. Gee hired another secretary around December 2005, to do the work Respondent no longer had time to do. During his business relationship with Ms. Gee, Mr. Sculthorpe would call her, repeatedly asking, "What's next?" He also called Respondent repeatedly, wanting information about his properties or just to discuss his personal life. Mr. Sculthorpe used e-mail and Instant Messaging so much that, on one occasion, Ms. Gee instructed Respondent to turn off the computer so she could get other work done. Ms. Gee and Respondent were not the only people in the office answering Mr. Sculthorpe's calls. Other secretaries in the office answered some of the calls. On some occasions, the office staff would look at each other and ask who wanted to take the call. On other occasions, Respondent placed Mr. Sculthorpe's call on speakerphone. Mr. Sculthorpe "would talk and talk and talk and talk" while Respondent continued to do her work. At some point in time, Mr. Sculthorpe advised Respondent that he did not like paying commissions to Ms. Gee. Respondent then recommended that Mr. Sculthorpe take the same real estate licensure course that she was taking. Respondent gave Mr. Sculthorpe the web site for the real estate school. At some point in time, Mr. Sculthorpe's sister-in-law, Linda Wilkinson went to Crystal River. Ms. Wilkinson was a real estate agent in another state. Ms. Gee showed Ms. Wilkinson some property located in an area known as Bimini Bay. Respondent never met with or talked to Ms. Wilkinson. During the hearing, Mr. Sculthorpe testified that Respondent encouraged him to buy another piece of property. According to Mr. Sculthorpe, Respondent asked him to refer her to another buyer after he refused to buy the property. Mr. Sculthorpe's testimony in this regard is not persuasive. Toward the end of the Sculthorpes' relationship with Ms. Gee, Respondent was still working only part-time with Ms. Gee. After Mr. Holdsworth closed the restaurant, Respondent continued to work for Ms. Gee. In June 2006, Ms. Gee moved Respondent from the Ozello office to a new office that became Ms. Gee's primary office. In June 2007, Respondent quit working for Ms. Gee because she could no longer afford to pay Respondent a salary. At $33 per hour for an investigator's time, Petitioner spent $412.50 investigating this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is Recommended: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010. COPIES FURNISHED: Jennifer Leigh Blakeman, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Cara S. Cacioppo 5756 West Costa Mesa Lane Beverly Hills, Florida 34465 Heather A. Rutecki, Esquire Rutecki & Associates, P.A. Bank of America Tower 100 Southeast Second Street, Suite 2950 Miami, Florida 33131 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Eduardo A. Cardounel (Cardounel), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0013037. Cardounel was the owner and sole qualifying broker for Respondent, Alexena Realty, Inc., a Florida corporation, registered as a real estate broker, license No. 0000851. In 1981 the Hamptons Development Corporation of Dade had under construction a condominium development in North Miami Beach, Florida, to be known as the Hamptons. In August 1981 Cardounel introduced Harold and Amparo Carvajal and Ulpiano and Maria Barona to the Hamptons project, and represented that he was the broker for the development and that these condominiums could be a good investment for them. Respondents concede they acted as agents for the Carvajals and Baronas at all times material to these proceedings. The Carvajals and Baronas each decided to purchase two units at the Hamptons. To guarantee the reservation of the units they had selected, they were required to place a small deposit and by December 31, 1981, have on deposit with the Hamptons a total of 10 percent of the purchase price of each unit. Dr. Carvajal left $4,000 with Cardounel, and Mr. Barona left $7,500, for the reservations deposits. The Carvajals and Baronas are residents of Columbia, South America. American dollars are not readily available, and the transfer of funds out of that country is not an easy task. Accordingly, the Carvajals and Baronas had to make arrangements to ensure that any funds which might be required to effect their purchases were available in the United States as those sums became due. The manner in which monies were delivered to Cardounel was, therefore, quite natural and necessary under the circumstances. On December 31, 1981, in Columbia, South America, Cardounel personally delivered four purchase and sale agreements for the Hamptons units to the Carvajals and Baronas for execution. The Carvajals executed agreements to purchase Units 905 and 1503, for $197,000 and $216,000, respectively. The Baronas executed agreements to purchase Units 605 and 1405 for $194,000 and $201,000, respectively. These agreements provided that the purchase price be paid as follows: Ten percent upon execution of the agreement, An additional 5 percent when the slab was poured on the floor on which the unit lies, An additional 5 percent when the slab was poured on the main roof, and The balance at time of closing. Prior to execution of the agreements, the Carvajals and Baronas had made arrangements to have those monies available in the United States. On November 9, 1981, Dr. Carvajal delivered an additional $37,300 to Cardounel for his initial 10 percent deposit. These monies, together with the $4,000 already on deposit, totaled the 10 percent deposit due for Units 905 and 1503. In September 1981 Mr. Barona delivered an additional $30,000 to Cardounel toward the initial 10 percent deposit that would be due on his units. Mr. Barona instructed Cardounel to place these funds in a "terminal deposit," a certificate of deposit, earning interest until the monies were due. 1/ On December 31, 1981, upon execution of the agreements, Mr. Barona delivered an additional $2,000 to Cardounel, which sum, together with the prior sums, totaled the 10 percent deposits due on his units. The record is unclear as to when the 10 percent deposit monies the Carvajals and Baronas had entrusted to Cardounel were paid to the Hamptons. They were paid, however. Initially the parties anticipated that the first additional 5 percent deposit would be due the latter part of 1982, and the second additional deposit in June 1983. Accordingly, in April 1982, Dr. Carvajal delivered $50,000 to Cardounel with instructions that the monies be invested in an interest-bearing account pending payment of the additional 5 percent deposits, and with the correspondent understanding that these monies would be available to pay the deposits as they came due. Mr. Barona transferred $30,000 to Cardounel, $10,000 in September 1982 and $20,000 in October 1982, to be applied toward the 5 percent additional deposits as they became due. Mr. Barona, consistent with his prior instructions, directed that these monies be held in a certificate of deposit, earning interest until the additional 5 percent deposits became due. By letters dated February 24, 1983, and March 2, 1983, to Dr. Carvajal and Mr. Barona, respectively, Cardounel advised them that the 5 percent deposits had not been paid in December 1982 because the Hamptons was late in construction and it had refused to pay interest on any deposits. In his letter to Mr. Barona, Cardounel advised him that the 5 percent deposit on Unit 605 would be due the end of March and on Unit 1405 the middle of April. In his letter to Dr. Carvajal, Cardounel advised him that the 5 percent deposit on Unit 905 would be due approximately April 1, and on Unit 1503 approximately the middle of April. Subsequent to Cardounel's letters, the Hamptons inquired directly of Mr. Barona concerning his failure to make the additional deposits. By letter of March 20, 1983, Mr. Barona replied that the monies for these deposits had been delivered to Cardounel and authorized the Hamptons to secure the monies from Cardounel. Mr. Barona also instructed Cardounel to immediately deliver the deposits to the Hamptons. At the end of March 1983, Dr. Carvajal and Mr. Barona, having been informed by friends that there might be a "problem" with the purchase of the Hamptons units, traveled to South Florida to confer with Cardounel regarding the status of their agreements and their deposit monies. Their initial meeting occurred on Sunday, at which time Cardounel informed them that he could not get them the monies because the bank was closed. They arranged to meet at his office the next day. On the following day, Dr. Carvajal and Mr. Barona met with Cardounel, but no monies were tendered. Instead, Cardounel exhibited to Dr. Carvajal two original promissory notes purportedly executed by a corporation known as Marfred International Investment, Inc. The first promissory note, dated April 17, 1982, in the amount of $50,000, was for a term of six months, and was represented by Cardounel to be an investment of the $50,000 Dr. Carvajal had entrusted to him. This note was purportedly secured by real property of a value of $120,000. The second promissory note exhibited to Dr. Carvajal, and payable to his order, was an unsecured note dated January 18, 1983, for a term of six months, in the sum of $36,000. This note, purportedly a reinvestment of the proceeds of the first note, did correctly reflect the balance that was due Carvajal, since $14,000 had, with his consent, been previously used for other purposes. This was, however, the first Dr. Carvajal had seen or heard of the January 1983 note. At the sane meeting, Cardounel exhibited four original unsecured promissory notes to Mr. Barona. These notes were not models of draftsmanship. They variously described the payor as Florida Investors Const. Co., Inc., and Florida Investors Const. Co., Inc., and one even named Florida Investors Const. Co., Inc., as payer but was executed by Florida Investors Const. Co., Inc. The notes exhibited to Mr. Barona were as follows: A note dated January 27, 1983, for a term of six months, in the sum of $20,500, A note dated February 2, 1983, for a term of six months, in the sum of $10,250, A note dated October 1, 1983, for a term of 90 days, in the sum of $10,000, and A note dated October 16, 1983, for a term of 9 days, in the sum of $20,000 2/ Prior to this meeting, Mr. Barona had no knowledge of the promissory notes, nor that his monies had not been invested as he had instructed. Dr. Carvajal and Mr. Barona voiced objection to the fact that Cardounel had "invested" their money in the fashion he had, since the monies would not be available as they became due under their agreements with the Hamptons. Further, Cardounel had violated Mr. Barona's instructions to place the sums in a certificate of deposit. In "satisfaction" of the notes, Cardounel issued four postdated checks, payable to Young, Stern and Tannenbaum-- escrow agents for the Hamptons- -and drawn on the personal account of "Eduardo Cardounel or Ena Cardounel." Check No. 4082, in the sum of $20,650, and check No. 4083, in the sum of $19,750, each dated April 7, 1983, represented the amount of monies needed to make the first 5 percent deposits on the Carvajal and Barona units. Check No. 4087, dated July 18, 1983, in the sum of $18,050, and check No. 4088, dated August 2, 1983, in the sum of $12,845, were to be applied to the respective accounts of Carvajal and Barona towards their second 5 percent deposits. Dr. Carvajal and Mr. Barona tendered their respective checks to Young, Stern and Tannenbaum. Each of the checks was deposited on the due dates and each was dishonored and returned for insufficient funds. To date, despite demand, Cardounel has failed to deliver the monies due Dr. Carvajal or Mr. Barona. The events which transpired after Cardounel's receipt of the Carvajals' and Baronas' additional monies are suspect. Cardounel concedes that commencing in 1982 through 1984 his real e state business had not produced any income for him. He had been compelled to sublease space in his offices just to keep his office open, and even then was losing money. Notwithstanding this downturn in the real estate market, Cardounel "invested" the monies entrusted to him with two small development companies with whom he was intimately connected. The monies which Dr. Carvajal entrusted to Cardounel, in April 1982, were purportedly lent to Marfred International Investment, Inc. (Marfred), as evidenced by a secured promissory note dated April 17, 1982, and a renewal unsecured promissory note dated January 18, 1983. Marfred is a Panamanian corporation authorized to do business in Florida. According to Cardounel, Marfred was a real estate developer to whom he had sold property. Cardounel admitted he was the registered agent for Marfred, but denied he was ever an officer of that company. Further, Cardounel could not recall the names of the corporate officers. The records in the office of the Secretary of State, State of Florida, confirm that Cardounel was the registered agent for Marfred, that he filed every Annual Report for Marfred, and that he was a vice president of Marfred in 1983 and 1984. While the first promissory note executed by Marfred, April 17, 1982, purported to be secured by real property of a value of $120,000, the property was described only by lot and block number with no city, county, or state designated. No mortgage on the real property was executed or recorded in connection with this promissory note. Cardounel concedes that absent a mortgage, the promissory note was unsecured, and further testified that he had no idea as to the real value or actual location of the property in question. Cardounel had no explanation as to why the second promissory note, January 18, 1983, was unsecured. The $30,000 which Mr. Barona entrusted to Cardounel, between September and October 1982, was purportedly evidenced by unsecured promissory notes executed by Florida Investros Const. Co., Inc., Florida Investors Const. Co., Inc., or named as payer, Florida Investros Const. Co., Inc., but executed by Florida Investors Constr. Co., Inc. These notes were unconditionally guaranteed by Cardounel. Cardounel was the registered agent for Florida Investros Const. Co., Inc. Coincidentally, Cardounel testified that contemporaneously with his meeting with Dr. Carvajal and Mr. Barona in March 1983, he learned that both Marfred and Florida Investros Const. Co., Inc., were in trouble and there was serious doubt that they could repay the monies. Notwithstanding this "fact," Cardounel tendered to Dr. Carvajal and Mr. Barona his four postdated checks in "satisfaction" of the promissory notes. It is worthy of note that the six promissory notes Cardounel exhibited to Dr. Carvajal and Mr. Barona were all originals, which Cardounel had retained in his possession. Additionally, Cardounel, upon tender of his checks in "satisfaction" of the promissory notes, at no time requested or obtained an assignment of those notes but, rather, had them marked "paid."
The Issue The ultimate issue for determination at the formal hearing was whether Respondent committed the offenses set forth in the Administrative Complaint and if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent is a licensed real estate salesman in the State of Florida. Respondent's license number is 0199374. Respondent was licensed as a salesman in limbo with a home address of 1850 Palm City Road, CC 102, Stuart, Florida 34994-7205. From late 1987 until early 1990, Respondent was employed as a real estate salesperson for Soukup Realty, Inc. ("Soukup"). While so employed, Respondent procured a contract for sale and purchase of Lot 4, Lake Harbor Estates, Martin County, Florida. The buyer was Mr. Sanford Drayer ("Drayer"), and the seller was Mr. Leif Grazi ("Grazi"). The original contract was dated May 1, 1988. Respondent mailed a copy of the signed original contract to Soukup together with a deposit check from Drayer dated May 1, 1988, in the amount of $500. The $500 deposit check was payable to Soukup. The original contract provided that Soukup was to receive a commission of $10,000. Pursuant to a separate agreement between Respondent and Soukup, Soukup was to receive $1,000 of the commission and Respondent was to be paid $9,000. After agreeing to the provisions in the original contract regarding payment of a real estate commission and the separate agreement with Respondent, Soukup deposited the check in its escrow account on or about May 4, 1988. Further discussions between Drayer and Grazi led to the execution of an amended contract for the same property, dated May 18, 1988. The amended contract superseded the original contract and is the contract upon which the parties closed their transaction on or about June 16, 1988. Upon Respondent's instruction, Grazi wrote in the space at the bottom of page 4 of the amended contract the name "Soukup Realty, Inc." The addition indicated that Soukup was to receive the real estate commission of $10,000 provided for in both the original and amended contracts. The amended contract changed the time and manner in which the $10,000 commission was to be paid to Soukup. The original contract provided that Grazi was to pay the entire commission at the time of closing. The amended contract provided for, "$5,000 to be paid at closing and $400 per month from the proceeds of the mortgage note, until paid in full." Prior to the closing, Soukup approved the terms of the amended contract based upon the following two conditions. First, Soukup and Respondent would share the $10,000 commission using the same percentage split which they had used previously in sharing commissions from other transactions, i.e., 90 percent ($9,000) to Respondent and 10 percent ($1,000) to Soukup. Second, Soukup would collect all of its 10 percent share ($1,000) "up front,"-i.e., from the $5,000 commission payment to be made by Grazi at closing. At closing, Grazi gave Respondent a check in the amount of $5,000 payable to Soukup as partial payment of the commission in accordance with the amended contract. Respondent placed the check in an envelope and wrote a note on the outside of the envelope which read, "Susan, please note you have $500 in escrow therefore please write me a check for $4,500. Is there a chance you might have it here tomorrow morning. If so call me and I will pick it up. Ron." Later on the day of the closing, Soukup found the envelope with the check inside on the door of her house. 3/ Soukup deposited the $5,000 check. On June 20, 1988, Soukup wrote a check for $4,500 to Respondent and delivered the check to Respondent. Not yet having seen the closing statement, however, Soukup did not disburse the $500 deposit out of its escrow account to the operating account. Some time later, Soukup received a copy of the closing statement and, even though it did not specifically refer to the $500 deposit, Soukup disbursed the $500 to Soukup in reliance upon Respondent's statement in his note on the envelope. Soukup had never received any other instructions or requests concerning the $500 from Drayer, Grazi, the closing agent, or anyone else. On June 20, 1988, Respondent requested Soukup's permission to collect Soukup's remaining unpaid real estate commission directly from Grazi, i.e., in his own name instead of in the name of Soukup. Soukup refused Respondent's request. Respondent had never made such a request before, and such a procedure would have been contrary to Soukup's custom and practice. Soukup also believed that such a request was contrary to Florida law governing real estate transactions. Soukup stated that any real estate commission payments which Respondent collected would have to be delivered to Soukup and an equal amount paid to Respondent from Soukup. Soukup made a contemporaneous note of the conversation and placed the note in the file folder. Soukup closed its file. Since Soukup had received payment in full of its 10 percent share of the commission, Soukup expected to have nothing further to do with the transaction except to receive commission payment checks collected by the Respondent and to exchange those checks for Soukup checks in equal amounts to Respondent. Soukup received no further real estate commission payments from Respondent or Grazi. Without the knowledge or consent of Soukup, Respondent collected the remaining unpaid real estate commissions directly from Grazi. Respondent collected two checks totalling $5,000. The checks were dated September 21, 1988, and December 16, 1988, and were in the respective amounts of $1,000 and $4,000. The check for $1,000 was made payable to Respondent. At Respondent's request, Grazi wrote "Ron Warren/Soukup Realty" on the line for the name of the payee of the $4,000 check. Both checks were paid by Grazi's bank. Both checks were endorsed by Respondent alone. Respondent never presented or disclosed the checks to Soukup. Two years after the closing, Soukup reviewed all files relative to Respondent (as a result of civil litigation filed by Respondent against Soukup). Soukup's records for the Drayer/Grazi transaction reflected that Soukup had received only $5,500 of the total $10,000 real estate commission. On June 13, 1990, Soukup wrote a letter to Grazi inquiring about the matter. Correspondence between Soukup and Grazi ensued. In a letter dated July 3, 1990, from Grazi to Soukup the checks for $1,000 and $4,000 were disclosed. The disclosure caused Soukup to believe that $500 had been paid in excess of the $10,000 real estate commission amount provided for in the amended contract. The $500, together with the other payments of $5,000, $1,000, and $4,000, totalled $10,500. Drayer did not receive credit in the Drayer/Grazi transaction for the $500 deposit he had paid in connection with the original contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Sections 475.25(1)(b)(k), Florida Statutes, and fined $3,000.00 to be paid within 30 days of the date of the final order. In order to enhance Respondent's regard for the entitlement of others to funds in business transactions and in order to facilitate due care in future transactions, it is recommended that Respondent be placed on probation for a period not to exceed one year from the date of the final order in this proceeding. The conditions of probation may include any of those prescribed in Florida Administrative Code Rule 21V-24.001(2)(a) except those that would require the Respondent to submit to reexamination and to be placed on a lesser license status. In the event that Respondent fails to timely pay any fines imposed or to complete the terms of any probation imposed, it is recommended that Respondent's license be suspended for two years. DONE and ENTERED this 26th day of May 1992, in Tallahassee, Florida. DANIEL MANRY 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 26th day of May 1992.
Findings Of Fact At all times material to this case, Respondent Bruce D. Robertson ("Respondent") was a licensed real estate broker, license #0343680, operating as a president and qualifying broker for IDC Properties ("IDC") At all times material to this case, IDC was a corporation registered as a real estate broker, license #0234614, located at 17980 San Carlos Boulevard, Fort Myers Beach, Florida. By agreement dated January 16, 1990, the Respondent agreed to pay to salesperson Randy Thibault a commission of $10,362.50 upon the closing of the sale of property at "Old Pelican Bay, Inc.," to Paula E. Brown, hereinafter referred to as the "Brown transaction". On July 5, 1990, the Brown transaction closed. The Respondent received the commission funds related to the sale of the property. The Respondent subsequently issued a check in the amount of $10,362.50 payable to Mr. Thibault. When Mr. Thibault attempted to negotiate the check, he was informed that the Respondent had issued a stop payment order on the check. Mr. Thibault thereafter filed a civil complaint against the Respondent in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida Case No. 90-5851-CA. The matter was heard in a bench trial. On October 3, 1991, Mr. Thibault obtained a Final Judgement in the amount of $11, 817.42 against IDC for the sum owed plus interest. On October 28, 1991, Mr. Thibault obtained a Final Judgement in the amount of $14,551.31 against IDC for the sum owed plus interest, attorney's fees and costs. On November 4, 1991, the Respondent filed a Notice of Appeal in the matter in the Second District Court of Appeal but subsequently abandoned the appeal. At hearing, the Respondent asserted that Mr. Thibault received his commission share at the closing. The Respondent presented no credible documentary evidence to support the claim. The Respondent also asserted that Mr. Thibault misled the Respondent as to Mr. Thibault's role in the sale of other unrelated property and that the Respondent intends to take legal action against him. The Respondent presented no credible documentary evidence to support the claim. The Respondent admitted that the Final Judgement obtained by Mr. Thibault remains unsatisfied and stated that stated that he will not pay the judgement pending resolution of the unrelated matter alleged above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a Final Order determining Bruce D. Robertson and IDC Properties, Inc., guilty of the violations set forth herein and revoking the licenses identified herein. DONE and ENTERED this 19th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6308 The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. The Respondent did not submit a proposed recommended order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Bruce D. Robertson IDC Properties, Inc. 17980 San Carlos Boulevard Fort Myers, Florida 33931
