The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of March, 1982.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent Stephen S. Hautala was licensed as a registered real estate broker in Florida; Almar Realty, Inc., was licensed as a real estate brokerage corporation in Florida; and Arlene J. Guennel was licensed as a real estate salesman in Florida. At the time of the alleged misconduct, Robert J. Tracey owned and occupied a home located at 1123 SE 36th Terrace in Cape Coral, Florida, which he occupied as his private residence. He met Respondent, Arlene Guennel, at a construction site at which he was working and agreed to let her attempt to sell the house. He gave her a key so she could preview it and never received the key back. After this meeting, Mr. Tracey did not contact Ms. Guennel, nor did he hear from her for quite a while. From time to time he would come home and find his bed had been made and he assumed that Ms. Guennel had done it. She had on several occasions straightened up the house so that it would be presentable to show. Mr. Tracey did not execute a formal listing agreement with Ms. Guennel. One evening in early April, 1986, she came to the Tracey home with a sales contract bearing an offer of $115,000.00. Mr. Tracey did not accept that offer by signing his name to the contract which now bears his purported signature, "Bob" Tracey. The listing agreement purportedly entered into by Mr. Tracey with Ms. Guennel, who was representing Almar Realty, also bears the signature of the lister as "Bob" Tracey. Mr. Tracey strongly contends that he never signs his name that way and it is found that Mr. Tracey did not sign either document. Respondent, Guennel, admits to having signed Mr. Tracey's name to the sales contract and though she denies having signed the listing contract, it is found that she signed it, or procured someone else to sign it. Mr. Tracey contends that he did not agree to the terms of the contract presented to him by Ms. Guennel. He did, however, initial certain counterproposals which are contained on the document and admits to having initialed it in the lower right hand corner. Mr. Tracey denies having given Ms. Guennel any permission to sign documents or initial corrections to documents in his name, utilizing his signature or initials. However, it is found that on the evening that Respondent Guennel came to Tracey's house with the contract containing the offer to purchase the property, he did propose a counter offer. He also indicated that in the event that Ms. Guennel could not get to him in person with a proposal, it would be all right for her to secure verbal approval by phone and thereafter make the appropriate changes in the contract. At no time, however, was Mr. Guennel or Mr. Hautala authorized to commit Mr. Tracey to any change without at least his verbal approval and neither was authorized to affix his signature to any document. William C. Rhoad was referred by his former broker to the local Merrill, Lynch office and Ms. Ciavarella, the local representative, showed him the Tracey home which was listed in the multiple listing book. Mr. Rhoad had indicated his need for a large home in excess of 2200 square feet and chose the Tracey home after seeing several others on the basis of the square footage represented in the multiple listing book. Neither Mr. Rhoad nor his agent measured the property. He made an offer which was presented by his agent to Respondent Guennel at Ms. Guennel's home on or about April 7, 1986. Ms. Guennel called her back on or about April 9, 1986, to advise that the contract had been signed by the seller. The seller's signature, however, was in conjunction with a counter offer of $119,500.00 as opposed to the $115,000.00 offered plus a split of 50/50 on the cost of the title insurance. Mr. Rhoad countered that counteroffer with another offer of $119,000.00 and Ms. Guennel, after talking with Mr. Tracey about it, advised that Tracey had accepted the contract at $119,000.00 without the need to pay 50 percent of the title insurance costs. When the closing was held, Respondent Guennel was not present. As the parties were going over the closing statement, Mr. Tracey said he would not pay $363.00 for title insurance. When he asked why he should pay, Ms. Ciavarella, who was also present, advised him that it had been provided for in handwriting on the contract which he had allegedly initialed. Mr. Tracey, immediately denied having initialed that change and denied signing the contract. It became apparent then that Respondent, Guennel had signed the contract and at that point, Mr. Tracey's broker, the Almar representative, agreed to pay the title insurance cost and have it come out of their portion of the commission. Mr. Tracey had, however, initialed the title insurance change and was subsequently held responsible for it in court. It also appeared that the room size, as described on the multiple listing placed by Ms. Guennel, as well as the lot size, the year the house was built, it's elevation above sea level, and several other particulars were incorrect. Notwithstanding the fact that Mr. Rhoad looked at the house four or five time prior to deciding to buy it and had some doubt as to the size, he said nothing about this until shortly before closing. Because of the various discrepancies described above and Mr. Rhoad's feeling he was being cheated, Mr. Rhoad attempted to back out of the deal. He was contacted, however, by his own agent and asked if he would reconsider going through with the purchase if concessions were made. He agreed and the listing agent, Mr. Tracey, and his agent reduced their commissions by a total of $3,500.00, all of which was passed on to Mr. Rhoad. This reduction in price was prorated $2,500 to Almar Realty, $500.00 to Mr. Tracey, and $500.00 to Merrill, Lynch Realty. The errors which appeared in the multiple listing book were the result of the input accomplished by Ms. Guennel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent Arlene J. Guennel's license be suspended for one year and that she pay a fine of $500.00; that the license of Almar Realty, Inc. be suspended for one year; and that the charges against Respondent Stephen S. Hautala be dismissed. RECOMMENDED this 12th day of February, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of February, 1988. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire DPR, Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Neale Montgomery, Esquire Post Office Drawer 1507 Ft. Myers, Florida 33902 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
The Issue The issues in the case are whether Respondent's real estate broker's license had been revoked when he applied for a mortgage broker's license and whether Respondent falsely answered certain questions on his application for a mortgage broker's license.
Findings Of Fact Respondent is currently licensed as a mortgage broker in the State of Florida. He holds license number HA 056265422-5P. He had been licensed continuously since August 5, 1986. Respondent previously has been licensed as a real estate salesman in the State of Florida. By Administrative Complaint filed March 1, 1985, the Department of Professional Regulation, Division of Real Estate, alleged, among other things, that Respondent was guilty of fraud, misrepresentation, concealment, and breach of trust, among other things, in connection with an improper disbursement from an escrow account. Following a hearing on January 17, 1986, a Recommended Order entered April 18, 1986, found that Respondent was, as to the above-described allegations, guilty "at least of culpable negligence and breach of trust" and recommended that Respondent's license be suspended for one year. After a hearing on June 17, 1986, the Division of Real Estate entered a Final Order June 30, 1986, effective 30 days thereafter, adopting the findings of fact and conclusions of law of the Recommended Order, but revoking rather than suspending Respondent's license. By Application for Registration as a Mortgage Broker signed by Respondent on March 22, 1986, Respondent applied for a mortgage broker's license (March Application). The application was filed on March 25, 1986. Question 19 of the March Application asks: Has any judgement or decree of a court or other judicial, administrative or quasi-judicial tribunal been entered against you, or is any such case pending in this or any other state, province, district, territory, possession or nation, in which you were charged in the petition, complaint, declaration, answer, counterclaim or other pleading with any fraudulent or dishonest dealing? (If your answer is in the affirmative, attach complete signed notarized statement of the charges and facts, together with the name and location of the court in which the proceedings were had or are pending.) Respondent answered this question, "no." By Application for Registration as a Mortgage Broker signed by Respondent on July 1, 1986, Respondent applied for a mortgage solicitor's license (July Application). The application was filed on July 9, 1986, and approved by Petitioner on July 31, 1986. Question 16 on the July Application asks whether the applicant is currently licensed in any state as a real estate broker or salesman. Respondent answered this question, "no." Question 17 on the July Application asks: "Has your license of any kind ever been denied, suspended or revoked?" The question then asks for a complete signed statement of the charges and facts in full detail. Respondent answered Question 17, "no." On July 28, 1986, Respondent sent a notarized letter to Petitioner concerning the July Application. In the letter, he elaborated upon the circumstances surrounding the answer to an unrelated question, but did not elaborate upon the above-described answers Respondent did not answer accurately Question 19 on the March Application. Over a year earlier, Respondent had been charged with fraudulent dealing. Respondent had no basis for omitting this item from the application because, even though he had not received the recommended order, the case obviously was still pending at the time of submitting the March Application. Respondent's incorrect answer was an intentional attempt to conceal from Petitioner the license-revocation proceeding. Although Respondent's answer to Question 16 on the July Application may have been accurate because he had relinquished his license, his answer to Question 17 was inaccurate. Respondent testified that he understood that the Final Order, which had just been issued, had not yet taken effect, so that his license had not yet been revoked. However, without further elaboration, the answer to Question 17 was incomplete and misleading, regardless of Respondent's understanding of the technical status of his license. Respondent knew that his answer was incomplete and would mislead Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance, Division of Finance, enter a Final Order revoking the mortgage broker's license of Respondent. DONE and ENTERED this 26th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4380 Treatment Accorded Petitioner's Proposed Findings 1-7 Adopted or adopted in substance. 8 Rejected as irrelevant. 9-29 Adopted or adopted in substance. 30-32 Rejected as subordinate and recitation of testimony. 33-34 Rejected as legal argument. 35-36 Adopted. 37-38 and 40 Rejected as legal argument. 39 and 41-42 Adopted or adopted in substance. Rejected as legal argument. Rejected as irrelevant. 45-50 Rejected as recitation of testimony. Treatment Accorded Respondent's Proposed Findings 1-7 Adopted or adopted in substance. 8 Rejected as irrelevant. 9-13 Adopted. 14 Rejected as against the greater weight of the evidence. 15-21 Adopted or adopted in substance. 22-23 Rejected as against the greater weight of the evidence. 24-29 Adopted or adopted in substance. 30-31 Rejected as recitation of testimony. Adopted in substance. Rejected as against the greater weight of the evidence. 34-38 Rejected as irrelevant. 39 Rejected as against the greater weight of the evidence. COPIES FURNISHED: Michael J. James 258 East Altamonte Drive Altamonte Springs, FL 32701 Elise M. Greenbaum Assistant General Counsel Office of the Comptroller 400 West Robinson Street, Suite 501 Orlando, FL 32801 Hon. Gerald Lewis Comptroller The Capitol Tallahassee, FL 32399-0350 Charles L. Stutts General Counsel The Capitol, Plaza Level Tallahassee, FL 32399-0350
Findings Of Fact At all times pertinent to the issues involved in this hearing, Respondent, Stephen P. McCrady, was licensed by the State of Florida as a registered real estate broker. Prior to the month of August 1983, Abraham L. Starr and John W. Dowler had listed their real property located at 1425 East Lake Drive, in Ft. Lauderdale, for sale with Sophist Realty, a Ft. Lauderdale real estate brokerage firm in which the two principal brokers were John J. Makos, III and W. Thomas Pospeshil. The asking price for the residential property was approximately $925,000.00. Prior to the time in issue here, no offers to purchase the property had been made as long as it was listed with Sophist Realty. In late July or early August 1983, Respondent was approached by LaVern McDonald and a woman identified as Georgia Rhea, his fiancee, who indicated they were interested in buying residential property in the Ft. Lauderdale area. Respondent showed these individuals several pieces of property including that in issue here. During the course of the relationship with Respondent, McDonald had advised him that he was a wealthy man who was expecting considerable sums of money from his mother's estate in Germany. Respondent believed this story considering it credible. After Respondent had taken the prospects to the Starr property three times, McDonald finally indicated he was interested in making an offer to purchase it. Thereafter, Respondent drew up a rough contract containing the basic terms for an original offer of approximately $775,000.00, typing the draft of the contract himself in his office on the evening of August 8, 1983. When he asked McDonald how much he was willing to put down as a binder, McDonald indicated $20,000.00 and Respondent entered that amount on the sales contract as the deposit. When he asked McDonald for a check to cover this sum, McDonald advised him that the money had to come through a bank in Atlanta and that he would have it there in less than 24 hours. At that point, Respondent called Makes and told him that he had an individual who wanted to make an offer on the property but that the deposit money was not in hand yet. As a result, he did not take the contract to Mr. Makos then or, for that matter, on the next morning because the money had still not arrived. In the interim, Mr. Makos' secretary called Mr. Starr on the evening of August 8, and advised him that an offer would be presented at 1 p.m. the next day. Mr. Starr and his partner were somewhat concerned as to why the offer was not presented immediately when the contract was signed by the prospective purchaser. When they checked with Makes office on the morning of August 9, they were told by Makos that he was waiting for a $20,000.00 check, which was to be the deposit, to be forwarded from Atlanta. Mr. Makos confirms most of this indicating that prior to August 8, after being advised of the pending contract, he had several conversations with Respondent about the money which was expected but not yet received. He indicates, however, that after several notifications that the money was not in and that the contract would not be presented until it was, on August 8, Respondent called and requested an appointment with the sellers to present the offer contained in he proposed contract. Makos cannot be sure if Respondent made a positive representation at that time that he had the money in hand. When the contract was presented the next morning, however, it showed in paragraph 2, "Method of Payment," the words, "Deposit herewith," and the figure $20,000.00. The contract also called for an "additional" deposit of $30,000.00 to be paid upon acceptance of the contract by both parties. Both the original contract form and the re-typed copy executed somewhat later indicate a place for the escrow agent to show where the deposit has been received. On neither copy of the contract here is that particular clause filled in. Neither Mr. Starr, his partner, his broker nor his lawyer noticed this omission at the time the contract was signed or shortly afterwards. After the contract was signed by both parties, Mr. Makes partner, Mr. Pospeshil, in placing into motion those steps necessary to bring about the closing, first noticed it on or about August 10. He attempted to contact Respondent several times but was unable to reach him. Messages he left were unreturned until August 14, when he was finally able to reach McCrady to ask him for an escrow letter to cover not only the $20,000.00 but the $30,000.00 as well. At this point Respondent advised that no deposit money had been received and that both Makos and the seller knew this, a contention which Makos denies. Respondent also disputes Pospeshil's statement that he failed to return messages indicating he was either at home or available through his pager the entire time and got no calls on this matter until August 14. Nonetheless, Respondent advised Mr. Pospeshil that he would get the deposit money that evening and call back when he had it. He did not call back and Pospeshil called Respondent's counsel to advise him of the situation. When the deposit money was not delivered even the next day, Pospeshil called the sellers and told them that there was no deposit. When advised that Respondent had indicated that they knew the money had not been in hand at the time the contract was signed, both denied this. Considering the evidence, it is obvious than neither did know. The property was subsequently sold by Starr and Dowler for approximately $625,000.00. Respondent urges that Makos concealed his knowledge that at the time the contract was signed the deposit money was not in hand because the listing on the property was about to expire and Makos wanted to present a contract so that he could get a renewal of the listing. There is no evidence to support this theory and it is rejected. Respondent presented a series of contracts for the purchase and sale of real estate executed in other transactions in the Ft. Lauderdale area. Of these, however, the most recent is approximately three years before the instant situation and the oldest goes back to 1969. They were presented for the purpose of establishing the practice in the area of filling in the receipt portion of the contract form. This was supported by the testimony of Mr. LeGault, who had no participation in the instant case. He has presented contracts without the deposit being received but only upon full disclosure to the seller and then only when the seller requests that the contract be presented without the deposit. In his opinion, when the receipt portion of a contract is left blank, like here, it is more a letter of intent to open negotiations rather than a firm offer. The attorney, Mr. Parker, testifying for Respondent also related that the failure to show either a deposit received or a promissory note for the amount constitutes a failure of consideration and results in an invalid contract. Both Respondent and Makos agree that the receipt portion on a sales contract is normally filled in. However, Makos was quite adamant as to the fact that when it is not, he always asks the presenting broker for an escrow letter establishing that receipt. Whether the contract here is valid or not is immaterial to the issue in this case which is whether or not Respondent made a false representation when he presented the contract to the broker for the seller which indicated that a substantial down payment had been tendered. On the basis of the evidence outlined above, the inescapable finding is that Respondent, by either word or deed, communicated to Mr. Makos when he brought the offer, that the money had been received and was in his trust account as reflected in the upper portion of the contract form. Under the circumstances of this case where, among other things, nobody even noticed that the lower portion of the contract was not filled in, it is clear that Respondent intended to impart that idea. It must also be noted that in September 1983, Respondent, without either admitting or denying the allegations against him, signed a stipulation with Petitioner which disposed of other allegations in a different Administrative Complaint resulting in his being reprimanded, paying a $500.00 administrative fine, and agreeing not to violate the statutes and rules governing the practice of real estate in Florida in the future.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore: RECOMMENDED that Respondent, STEPHEN P. McCRADY'S license as a registered real estate broker in Florida be suspended for one year; that he pay an administrative fine of $1,000.00; that he be reprimanded; and that upon the completion of the period of suspension, he be placed on probation for two years. RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1985. COPIES FURNISHED: Arthur R. Shell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ronald R. Rogowski, Esquire 208 Southeast Sixth Street Ft. Lauderdale, Florida 33301 Harold Huff, Executive Director Department of Professional Regulation P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents allegedly violated a rule and various provisions within Chapter 475, Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Edward D. Armbruster and Colleen Michele Armbruster, were licensed real estate brokers having been issued license numbers 0002159 and 0362890, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Respondents served as qualifying brokers and officers of Respondent, Armbruster Realty, Inc., a corporation registered as a real estate broker and located at 1031 West Nelson Avenue, DeFuniak Springs, Florida. The corporation holds license number 0211855, also issued by the Division. On July 10, 1996, Gerald and Joyce Singleton, who had just relocated to California, entered into a contract with James B. and Joyce Patten to sell their single-family residence located on Madison Street in the City of Freeport, Florida, for a price of $78,000.00. The contract called for the Pattens to pay $1,000.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that "[c]losing shall be within 30 days (more or less) after acceptance of this contract," and that "[i]n the event that buyer defaults and deposit is forfeited, it is agreed said deposit shall be divided equally between seller and broker." The transaction was handled by Geraldine Dillon (Dillon), a salesperson in Respondents' office, who is now retired. Because the Pattens had recently moved to Walton County from Washington State, and they were temporarily living with a relative in a mobile home, the time for closing was of the essence. Accordingly, the Pattens inserted into the contract a provision requiring that a closing be held within "30 days (more or less)." This meant that a closing should be held on or about August 10, 1996, give or take a few days. The parties acknowledge that property boundary problems were somewhat common in certain areas of Freeport, including the area where the subject property was located. To satisfy the bank and title company, a surveyor was engaged to prepare a survey of the property. However, the parties agree that the surveyor noted problems with the boundaries of the lot. When a second surveyor would not undertake the survey because of similar boundary problems, Joyce Patten, who was the principal negotiator for the couple, notified Dillon that they did not wish to close because of potential title problems and wanted a refund of their deposit. Notwithstanding this concern, Dillon advised Joyce Patten that a third surveyor would be hired, at the seller's expense, and he could "certify" the property. Although Joyce Patten expressed concern that the bank might not accept a third survey after two earlier ones had failed, and she did not want to pay for another survey, she did not instruct Dillon to stop the process. Accordingly, Dillon engaged the services of Tommy Jenkins, a local surveyor, to perform another survey. After a certified survey was obtained by Jenkins on August 12, 1996, which Respondents represent without contradiction satisfied the lender and title company, a closing was scheduled within the next few days. This closing date generally conformed to the requirement that a closing be held by August 10, 1996, "more or less." The seller, who by now had relocated to California, flew to Florida for the closing, and the title company prepared a closing statement and package. Just before the closing, however, Respondents learned through a representative of the title company that the Pattens were "cancelling the closing," apparently in violation of the contract. Shortly after the aborted closing, Joyce Patten requested that Dillon return their deposit. By this time, the Pattens had already entered into a second contract to buy another home in the same area and closed on that property before the end of August. Respondents were never informed of this fact by the Pattens. On August 21, 1996, Colleen Armbruster prepared a rather lengthy letter to the Pattens (with a copy to the sellers) in which she acknowledged that they had orally requested from Dillon that their escrow deposit be returned. The letter has been received in evidence as Petitioner's Exhibit 4. Armbruster stated that she was "perplexed" that they were demanding a refund of their earnest money deposit, given the fact that the seller had "met the terms and conditions of the sale." Armbruster outlined the three reasons in the contract which would allow the Pattens to withdraw without forfeiting their deposit, but noted that none were applicable here. Accordingly, she advised them that the seller would be consulted as to his wishes regarding the deposit, and that the Pattens should contact her if they had any questions. Through oversight, however, she did not include a notice to the Pattens that they must respond to her letter within a stated period of time reaffirming their demand for the trust funds, or the deposit thereafter would be disbursed pursuant to the contract. By failing to include this specific language, and sending the letter by regular rather than certified mail, return receipt requested, Respondents committed a technical, albeit minor, violation of an agency rule. Even so, the Pattens acknowledged receiving the letter, and there is no reason to believe that they did not understand its import, especially the requirement that they contact the broker if they disagreed with the proposed disbursement of the money. It can be reasonably inferred that the Pattens did not respond because they "figured [they weren't] going to be able to get [their] money back" due to their failure to perform. On September 13, 1996, the seller's attorney advised the Pattens by letter that the seller considered the deposit forfeited pursuant to paragraph 15(a) of the contract, which pertains to the "Default" provisions. The Pattens never responded to either letter, and they also failed to respond to telephone calls made by Respondents or their agents regarding this matter. In view of the Pattens' lack of response or reaffirmance of their demand, and the fact that they had already closed on another property, Respondents logically and fairly assumed that the Pattens were in agreement with the disbursement procedures outlined in Coleen Armbruster's letter of August 21. Accordingly, on September 17, 1996, Edward Armbruster, who had not been involved in this transaction to date, in good faith signed two disbursement checks giving $697.50 to the seller and retaining the balance for his firm. This division was consistent with the terms of the contract. In making this disbursement, there was no intent on the part of Respondents to trick, deceive, breach their trust, or in any way unlawfully deprive the Pattens of their deposit. Respondents did not notify the Florida Real Estate Commission (Commission) that they had received conflicting demands for a deposit, nor institute any other procedures regarding the deposit, since they no longer had any good faith doubt as to whom was entitled to their trust funds. This was because the Pattens had failed to respond to letters and telephone calls regarding the sellers' claim to the deposit. There is no evidence that Respondents have ever been the subject of prior disciplinary action during their lengthy tenure as licensees. At the same time, it is noted that Respondents acted in good faith throughout the process and genuinely believed that there was no dispute. It should also be recognized that, for at least part of the time, the Pattens were working two contracts simultaneously without advising the realtors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Respondents guilty of a technical violation of Rule 61J2-10.032(1), Florida Administrative Code, and Section 475.25(1)(e), Florida Statutes, and that they be given a reprimand. All other charges should be dismissed. DONE AND ENTERED this 28th day of July, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1998. COPIES FURNISHED: Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Christine M. Ryall, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Edward D. Armbruster Colleen M. Armbruster Post Office Box 635 DeFuniak Springs, Florida 32433 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent's real estate license should be disciplined because the Respondent failed to account and deliver funds in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Joyce A. Wolford is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0313643 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Blue Ribbon Realty, 1400 N. Semoran Boulevard, Orlando, Florida 32807. As To Counts I and II Diane Ortiz was employed by Respondent Joyce Wolford to perform various duties, including operating the computer and taking messages. During her employment with Respondent, Diane Ortiz completed a contract for sale and purchase of certain real property which was signed by Jane Evers as buyer. In conjunction with the Evers contract, Ortiz did receive an earnest money deposit in the form of a cashier's check for the sum of $1000 and made payable to Blue Ribbon Realty. The earnest money deposit check given by Evers was turned over to Respondent by Ortiz. The endorsement on the Evers deposit check was Blue Ribbon Realty. The sale was contingent on Evers' assumption of the existing mortgage. The mortgagee did not approve Evers, and the transaction did not close. Evers contacted Ortiz and Respondent on several occasions and demanded return of her $1,000 deposit. Evers met personally with Respondent and demanded return of the $1,000 deposit. Evers sent a written demand for the return of the deposit by certified mail to Respondent on August 9, 1989. Despite Evers repeated demands for return of the $1000 deposit, Respondent has not returned any money to Evers. Jane Evers filed a lawsuit against Respondent Joyce Wolford in the County Court for Orange County, Florida, for the sum of $1,000 and court costs. A Final Judgment in the civil lawsuit was rendered for Jane Evers against Joyce Wolford for $1,000 principal plus $73 in court costs on March 15, 1990. Respondent has not satisfied the Final Judgment awarded to Evers or any portion thereof. As To Counts III and IV Anthony Pellegrino did enter a contract to purchase certain real property known as Lakefront Motel near Clermont, Florida. Respondent Joyce Wolford did negotiate the contract. Pellegrino did give Respondent a $5,000 earnest money deposit in the form of a cashier's check to secure the contract for purchase of Lakefront Motel. The cashier's check given as a deposit by Pellegrino was endorsed to Blue Ribbon Realty account #0880510063. The Lakefront transaction did not close, and Pellegrino demanded that Respondent return the $5,000 earnest money deposit on several occasions. Respondent has not returned the $5,000 deposit or any portion thereof to Pellegrino. The $5,000 earnest money deposit for the Lakefront contract was transferred to a mortgage company for a transaction involving a condominium that Pellegrino sought to purchase. Said condominium transaction did not close. In neither case did Respondent request the Florida Real Estate Commission to issue an escrow disbursement order. On July 2, 1990, the Florida Real Estate Commission entered a Final Order in the case of Department of Professional Regulation v. Joyce Wolford, finding Respondent guilty of failure to account and deliver a commission to a salesman and imposing a reprimand and an administrative fine of $1000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of having violated Subsections 475.25(1)(b) and (d), Florida Statutes (1989), as charged in Counts I, II, III and IV of the Administrative Complaint. It is further recommended that Respondent's real estate license be suspended for two years, imposing an administrative fine in the amount of $1,000 and, upon completion of the suspension period, placing Respondent on probation for a period of two years with such conditions as the Commission may find just and reasonable. DONE AND ENTERED this 8th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990. APPENDIX 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 of fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,9,10,11,12,13,14,15,16,1,7,18,19,20,21,22,24 (in part), 25 Rejected as cumulative or irrelevant: 7,8,23,24 (in part) Respondent's proposed findings of fact: Accepted in substance: Paragraph 1 Rejected as against the greater weight of the evidence: Paragraph 2,3 COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Raymond Bodiford, Esquire 47 East Robinson Street Orlando, FL 32801 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
Findings Of Fact At times pertinent hereto, Respondents were the holders of Florida real estate licenses. During all times material hereto, Respondent, Robert F. Nagel was licensed and operating as a real estate broker. Additionally, Respondent Nagel was the qualifying broker for Bluff's Realty, Inc. During times material, Respondents had an open listing agreement with Angelo Traina to sell his property at 401 Ocean Bluffs Boulevard, 305, in Jupiter, Florida. On or about December 7, 1986, Respondents prepared a purchase-sales contract signed by Carl and Lila Holback, as purchasers and Angelo Traina, as seller, for the purchase of the above referred property for the price of $98,450.00. The sales contract called for a $1,000.00 deposit to be held in escrow by Respondents. An additional $8,000.00 was to be deposited in escrow with the Respondents upon acceptance by the Seller. The contract signed by the Holbacks and Traina's contained a failure of performance provision. The failure of performance provision was contained in paragraph S of the contract and provided essentially that if the buyer failed to perform as required per the terms of the contract, the deposit could be retained by the seller as liquidated damages, or seller, at seller's option, could proceed at law or in equity to enforce the seller's legal rights under the contract. On the following day, December 8, 1986, the Holbacks informed the Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks requested that the $1,000.00 deposit instead be transferred from the Traina/Holback transaction to a new contract to purchase a different condominium unit. This was done on December 8, 1986, as directed by the Holbacks without the knowledge and consent of Angelo Traina. The Holbacks considered that they had been pressured by Mr. Traina into executing the purchase agreement and that after reflection on the "duress" exerted by Mr. Traina, the Holbacks considered that they had a 72 hour period in which they could withdraw from the transaction. They therefore advised Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks closed on a different property on January 12, 1987. Subsequent to December 8, 1986, but prior to January 13, 1987, Respondents offered to pay Mr. Traina $500.00 in return for a release from any potential liability under the contract. This offer was rejected by Mr. Traina. Thereafter, on or about January 13, 1987, Mr. Traina retained counsel who demanded a payment of $10,000.00 from Respondents for alleged damages for breach of a fiduciary duty. The Respondents refused to pay $10,000.00 to or on behalf of Angelo Traina based on the listing agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondents for Two Thousand Dollars (2,000.00) payable within thirty (30) days of entry of Petitioner's Final Order. RECOMMENDED this 25th day of August, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of August, 1988. COPIES FURNISHED: John L. Bryan, Jr., Esquire Scott, Royce, Harris, Bryan & Hyland, P.A. 450 Royal Palm Way Post Office Box 2664 Palm Beach, Florida 33480 Steven W. Johnson, Esquire Department of Professional Regulation- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Laurence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the Respondent, Alvin I. Siegel, should be suspended or otherwise disciplined for failure to properly disburse funds or to retain said funds in an escrow account.
Findings Of Fact Respondent Alvin I. Siegel is a registered real estate broker with License #0080637, trading under the registered trade name of Cambridge Realty in South Miami, Florida. An administrative complaint dated February 7, 1979, was filed by the Petitioner Commission, alleged that the Respondent has been guilty of failure to account for or deliver monies which had come into his hands and which were not his own property. Respondent Siegel requested an administrative hearing. On or about February 16, 1973, Sylvia M. Ramirez executed a purchase and sale contract and receipt for deposit for a house located in Dade County, Florida. The house was owned by Deanna P. Cooper. Ms. Ramirez had deposited $1,325.00 as earnest money deposit in the escrow account of broker Respondent Siegel. The contract provided that if the purchaser could not obtain a mortgage, the deposit would be refunded: that if the purchaser breached the contract, the deposit would be forfeited and divided equally by the seller and the broker; and that if the seller defaulted, the brokerage commission would be paid only upon a successful suit for specific performance by the purchaser. Respondent Siegel was notified of the date of closing the same day of the closing, July 20, 1973, but did not attend because of prior commitments. Later that day, the seller, Ms. Cooper, presented a closing statement to the Respondent stating that the transaction had closed and that she wanted the excess of the deposit over the commission owed to broker Siegel. He disbursed to her $235.00, which was the excess of the deposit over and above the commission. Respondent Siegel learned later that the checks issued at the closing were cancelled. Demands were made upon Respondent Siegel by both the seller, Ms. Cooper, and the purchaser, Ms. Ramirez, for the deposit money. The seller, Ms. Cooper, demanded one-half of the deposit as a forfeiture, and the purchaser, Ms. Ramirez, demanded that the money should be refunded to her. No suit for specific performance was instituted. Respondent Siegel refused to pay the seller, Ms. Cooper, the difference between the amount he had disbursed at the time she submitted the closing statement to him and one-half the deposit (i.e. $427.50). A lawsuit was filed by Sylvia Ramirez on December 4, 1973, demanding return of the deposit. The would-be seller, Ms. Cooper, was joined as a party Respondent, so that the rights of all parties could finally be determined. Respondent Siegel was advised by his attorney not to disburse monies to any of the parties, and he followed his attorney's advice. The lawsuit ended in dismissal in January of 1977, and no demand has been made upon Respondent Siegel since that date by either Ms. Cooper or Ms. Ramirez. Respondent Siegel has agreed to rely on the advise of the Petitioner Commission, and has stated that he is ready to disburse the necessary funds but is in doubt as to his duty. Both parties submitted memoranda of law and recommendations. These instruments were considered in the writing of this Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that this complaint be dismissed without prejudice. DONE AND ORDERED this 29th day of June 1979 in Tallahassee, Florida. COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings ROOM 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Lawrence C. Rice, Esquire 6075 Sunset Drive, Suite 203 Miami, Florida 33143 Mr. Alvin I. Siegel c/o Cambridge Realty 6313 Sunset Drive South Miami, Florida 33143
Findings Of Fact Respondent, Benny Isaiah, holds real estate broker's license number 0311124 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Greater Realty of Orlando, Ltd., Inc., is a real estate broker corporation and holds license number 0223392 also issued by petitioner. When the events herein occurred, its offices were located at 66408 International Drive, Orlando, Florida. At all times relevant hereto, Isaiah operated as the qualifying broker for Greater Realty. On or about November 2, 1982, Isaiah's wife, Dalia, a real estate salesman in respondent's fir, obtained an offer from Arthur Zimand to purchase a residence located at 9227 Bay Point Drive, Orlando, Florida, for $190,000. The residence was owned by Tran Van Don, a former Vietnamese army officer. In the contract for sale and purchase, Zimand established a closing date of February 1, 1983. He also gave respondent's firm a $2500 earnest money deposit to be held in escrow by Greater Realty which was placed in the appropriate escrow account as required by law. The contract provided that "(i)f the offer is not executed by both of the parties on (a date specified therein), the . . . deposit(s) shall be, at the option of the Buyer, returned to him and this offer shall thereafter be null and void." The above offer was presented to the seller and rejected. Thereafter, Don prepared a counter-offer on November 9, 1982, which increased the sales price to $205,000 and changed the closing date to November 30, 1982. After reviewing the counter-offer, Zimand agreed to all changes except the closing date of November 30, 1982. He could not agree to that date since he was unable to obtain sufficient funds to close the transaction until December 10, 1982. Accordingly, Zimand crossed out the closing date suggested by the seller, wrote in December 10, 1982, in its place, and initialed the change on the contract. The later closing date was unacceptable to the seller and he did not accept Zimand's counter-offer. Therefore, no contract was executed by the parties. Respondents were so notified by the seller's attorney by letter sent on November 23, 1982. The letter advised them that the seller would not accept the closing date of December 10, and that accordingly no contract between the two parties existed. On November 24, 1982, Zimand wrote respondent's wife a letter in which he withdrew his offer and requested a prompt refund of his $2500 deposit. On December 3 and 11, 1982, respectively, Zimand and Don executed a "release of deposit receipt" wherein both parties instructed respondents to disburse the deposit held in escrow to Zimand. By signing the release form, the seller acknowledged that he had no interest in the deposit monies. The document was mailed to respondents on January 11, 1983. This was followed by a letter to Isaiah from Zimand's attorney on January 25, 1983, again requesting a refund of the deposit within ten days. Despite these requests, Isaiah did not refund the deposit. On or about December 8, 1982, Isaiah withdrew the $2500 from his escrow account. The disposition of those funds is not known. Zimand later instituted a civil action against Isaiah seeking to recover his deposit. He also filed a complaint with petitioner. On May 9, 1984, or just before the matter went to trial, Isaiah returned the deposit to Zimand. This was some seventeen months after Zimand first requested a refund of his deposit. Isaiah contends there was a valid contract between Zimand and Don, and that they used a "technicality" (a dispute over closing dates) to get out of closing the transaction. Because of this, he believes he was originally entitled to keep the $2500 as a sales commission. He also contended that his wife is the person who should be involved in this proceeding rather than him since she negotiated the contract and is more familiar with the details of the contract. Finally, he asserts the dispute has no clear-cut answer, and falls within a "gray" area. As such, he was justified in his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of Counts I, II and III of the administrative complaint, that their licenses be suspended for six months, and each pay a $500 administrative fine within forty-five days after a final order is entered in this cause. DONE AND ENTERED this 8th day of November 1984 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November 1984.
The Issue The issues in this case are whether Respondents violated Subsection 475.25(1)(k), Florida Statutes (1999), by failing to maintain an escrow deposit in a trust account until properly authorized; whether Respondents violated Subsection 475.25(1)(d)1, Florida Statutes, by failing to account for or deliver funds; whether Respondents violated Subsection 475.25(1)(b), Florida Statutes, by committing a breach of trust or culpable negligence in a business transaction; and, if so, whether the proposed penalty is reasonable.
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Simons is licensed in the state as a real estate broker/officer of Respondent, Home Hunters USA, Inc. (Home Hunters), pursuant to license number BK-0159866. Home Hunters is a corporation registered as a Florida real estate broker pursuant to license number CQ-0146369. On March 21, 1996, Respondents entered into a property management contract (amended contract) with Max and Mary Newman (Newmans). The amended contract authorized Respondents to lease and manage real property owned by the Newmans and located at 1555 Whiskey Creek Drive, Ft. Myers, Florida 33919 (the property). The original contract that Respondents proposed to the Newmans was dated March 11, 1996. The original contract contained a clause that would have obligated the Newmans to pay a sales commission to Respondents in the event Respondents sold the property to a tenant or certain other purchasers. The Newmans deleted that language from the original contract, initialed the deletion, dated the deletion "3/21/96," signed the amended contract on March 21, 1996, and returned the amended contract to Respondents. The deleted language in the amended contract signed by the Newmans provided: Owner agrees to pay Agent a sales commission for the sale of said property to the tenant, or any other the tenant relates or refers. Agent will perform any services normally performed to consummate the sale to the tenant in a professional and diligent manner. Owner shall notify Agent at earliest possible time so that Agent may perform services (prequalify, arrange financing, closing, repairs, etc.). It is the owners [sic] responsibility to pay said fee to Agent upon closing of sale. Petitioner's Exhibit 5 (P-5) at 19 (the second unnumbered page of the exhibit). On or about February 1, 1999, Respondents brokered a lease of the property from the Newmans to Ms. Lilly Gilson (Gilson). Mr. Newman signed the lease agreement on February 14, 1999, and Gilson signed it on February 23, 1999. The lease agreement, in relevant part, obligated the Newmans to pay Respondents a "fee" in the event the "tenant should enter into a lease purchase, lease option, or purchase through their tenancy." The lease agreement states that the fee is for Respondents "serving the sale as a broker" but does not specify the amount of the fee, does not express the fee as a percentage of the purchase price, and does not otherwise specify how the fee is to be determined. Neither of the Respondents is a signatory to the lease agreement. At the time Gilson entered into the lease agreement, Gilson paid a deposit of $650 to Respondents as a security deposit in accordance with the lease agreement. Respondents placed this deposit into a trust account. At some point prior to December 1999, the Newmans entered into a purchase and sale contract to sell the property to Mr. Gary Newman (Buyer). The Buyer is unrelated to the Newmans, but is a relative of Gilson. The Newmans closed on the sale to the Buyer on December 28, 1999. The parties to the sale used other brokers in the transaction over Respondents' objections, and neither of the Respondents served the sale as a broker. The closing statement shows that the Buyer was obligated to pay the $635 security deposit to the Newmans. Subsequent to the closing, Respondents transferred the security deposit from their trust account to their operating account. Simons believed he was entitled to a commission on the sale from the Newmans to Buyer. Respondents had actual knowledge that the Newmans claimed entitlement to the security deposit and disputed Respondents' entitlement to the security deposit. Simons was aware as early as December 11, 1999, that the Newmans did not knowingly consent to pay Respondents a commission on the sale transaction. Respondents failed to notify the Florida Real Estate Commission (Commission) of the dispute concerning entitlement to the security deposit. Respondents did not institute the settlement procedures prescribed in Subsection 475.25(1)(d)1, Florida Statutes (1999).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondents violated Subsections 475.25(1)(b), (d), and (k), Florida Statutes (1999), by committing the acts alleged in the Administrative Complaint; imposing a fine of $1,000 against each licensee; and suspending Respondents' licenses concurrently for 30 days. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Christopher J. DeCosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801-N Orlando, Florida 32801 Larry A. Simons Home Hunters USA, Inc. 1415 Colonial Boulevard, Suite 3 Fort Myers, Florida 33907 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802-N Orlando, Florida 32801-1772
