The Issue Whether the Respondent should be disciplined upon a charge that he operated as a salesman for any person not registered as his broker in violation of Section 475.42(2)(1)(b), Florida Statutes, and whether Respondent should be disciplined based upon a charge that he collected money in connection with any real estate brokerage transaction without the express consent of his employer and not in the name of his employer in violation of Section 475.42(1)(d), Florida Statutes.
Findings Of Fact The Petitioner is the state agency charged with regulating and disciplining real estate salespersons. The Respondent is and was at all times material to this complaint a licensed real estate salesperson in the State of Florida having been issued license no. 0593108. The Respondent's current license was issued as a voluntary inactive with an address of 1421 Daytona Avenue, Holly Hill, Florida 32117. In mid-1994, the Respondent was employed by Donal E. Harrigan, d/b/a Donal E. Harrigan Company (hereinafter Harrigan). The Respondent was licensed as a real estate salesperson with Harrigan, and was engaged in the selling of timeshares. While employed with Harrigan, the Respondent and his wife talked with Fadel Elbadramany, the broker and owner of AAA Realty. Initially the Respondent and his wife talked with Elbadramany about the purchase of commercial real estate; however, Elbadramany solicited both of them as real estate salespersons with his company. The Respondent's then wife was eventually employed by Elbadramany as a salesperson. The Respondent discussed employment with Elbadramany; however, Elbadramany would not discuss the nature and scope of his business until the Respondent had signed an employment agreement containing a non-competition clause and DBPR Form 400.5. The Respondent was interested in selling commercial property, but did not want to cease selling timeshares. He discussed this with Elbadramany who advised him that he could do both. Pursuant to this discussion, the Respondent filled out a DBPR Form 400.5 checking at the top of said form under Section A, "Multiple Licenses." Nothing was checked on the form indicating a change of employment or broker. The Respondent signed the form in blank and left it with Elbadramany. Fadel Elbadramany was called to testify. Elbadramany testified that he employed the Respondent, that the Respondent obtained list of prospects from his office, that the Respondent never sold any real estate for him, and that he had observed the Respondent engaging in the sale of real estate which was not listed with his brokerage. Brenda Groves, the ex-wife of the Respondent, was called to testify. Brenda Groves was employed by AAA Realty and Elbadramany. During her employment, a conflict arose which resulted in litigation between Brenda Groves and Elbadramany over the anti-competitive clause contained in the employment contract. Brenda Grove testified that Elbadramany threatened to get her and to get her husband. Ms. Grove testified regarding the employment of her ex-husband. The Respondent was not employed by AAA Realty. Ms. Groves testimony is considered very credible. There was a conflict in the testimony between Elbadramany and the Respondent concerning who filled out and completed the DBPR Form 400.5. The most credible evidence is that it was completed by Elbadramany and filed with the Department of Professional Regulation, Division of Real Estate. The form as filled out, requests only multiple licensure. The request for multiple licensure is consistent with the Respondent's intent to continue to sell timeshares for Harrigan and commercial property for Elbadramany. However, prior to commencing employment with Elbadramany, but after filling out the form, the Respondent determined that he did not want to be employed by Elbadramany. Meanwhile, unbeknownst to the Respondent, the Division of Real Estate received the DBPR Form 400.5 and, because the Respondent is not a broker, did not issue him a multiple license. Instead, the Division of Real Estate shifted the Respondent's registration as real estate salesperson from Harrigan to AAA Realty. Although the Respondent's registration had been changed from AAA to Harrigan, the Respondent continued to be employed by Harrigan and to work actively in Harrigan's business selling timeshares. The testimony of the Respondent and that of Elbadramany was that he did not do any work for AAA Realty. There is no evidence in this proceeding that the Respondent received a copy of the licensing change or was made aware of this change prior to March 10, 1995. On March 10, 1995, the Respondent was interviewed by an investigator of the Department of Business and Professional Regulation. At this time the Respondent became aware that his registration was with AAA Realty. As a result of this interview, the Respondent contacted the Department and discussed with them how to correct the status of his registration. In order to accomplish that in accordance with the instruction he received, the Respondent filed out a DBPR Form 400.5 registering with Harrigan by whom he had been continuously employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Division of Real Estate enter its final order dismissing the administrative complaint against the Respondent Gary Allen Groves. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 15th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Gary Allen Groves 1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Kenneth M. Olson, Jr., is guilty of the allegations alleged in the Administrative Complaint?
Findings Of Fact Kenneth M. Olson, Jr., is a registered real estate broker holding Certificate No. 0065634 issued by the Florida Real Estate Commission. Gary Ater, Pasquale DeLucia, John Ricker, Helen Pendleton, and Fred Snook were all real estate salesmen employed in the Fourth Street Office of Olson & Associates. On or about March 31, 1975, the aforesaid salesmen, to include the office manager, Fred Snook, left the employment of Kenneth M. Olson, Jr., without notice and became salesmen for Citrus Realty. Upon their leaving, only one full time real estate salesman was left in the Fourth Street Office. Kenneth M. Olson learned that the aforesaid real estate salesmen had left his employ when members of the public and other real estate salesmen and brokers called his other office advising that the phones at the Fourth Street Office were not being answered. Blodwen Clayton, a registered real estate salesman with Olson and who as a secretary-receptionist had organized the records and supplies for the Fourth Street Office, was sent to said office to determine what problems existed there. She determined that the aforementioned sales people were gone and the office closed and locked. Also office records, supplies, a cross listing directory which had just been purchased, and an electric typewriter were missing. Subsequent audit of the account of the Fourth Street Office indicated that certain payments had been made to Fred Snook which were inappropriate to include reimbursement for flowers sent clients and a party held in the month of February. A telephone bill for that office indicating a call from Havana, Cuba, had been billed to the telephone of the Fourth Street Office at a time when Fred Snook was manager and responsible for the office. As a result of the personnel loss, Olson chose to close the Fourth Street Office and dispose of the property. The events alleged in Counts 2 through 9 discussed in paragraphs 4 through 11, following, relate to events which occurred between Olson and the aforesaid sales personnel after they left Olson's employ. No evidence was presented by the Florida Real Estate Commission to substantiate its allegations contained in Count 1. The Petitioner argued that the admission by the Respondent in his Answer that the Commission paid to Joseph Boiros was paid by a check drawn on the Olson & Associates Real Estate operating account is sufficient to sustain the alleged violation that Olson did not hold Boiros' commission in a trust account and promptly account and pay the commission to Boiros. Gary Ater was a registered salesman employed by Olson who by virtue of negotiating and obtaining a contract for the sale of property between William and Eleanor Zeisler and Arthur and Simone Clinton earned a commission when this sale closed on or about April 10, 1975. Pursuant to the employment contract between Ater and Olson, the commission was due and payable twenty-four hours after closing period. On May 1, 1975, Gary Ater demanded payment by registered mail from Kenneth M. Olson, Jr. Ater received payment of the commission in December, 1975, after having obtained a judgment in Small Claims Court which was satisfied by Olson prior to being recorded. Pasquale DeLucia, a registered salesman employed by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Sherwood and Annie Clrk and Wayne and Theresa Costin on or about February 7, 1975. Upon the closing of said sale on or about March 31, 1975, DeLucia earned a commission due and payable within twenty-four hours under the employment contract between DeLucia and Olson. On or about May 1, 1975, DeLucia demanded payment from Olson by registered mail of said commission. DeLucia subsequently sued Olson in Small Claims Court and obtained a judgment which was satisfied by Olson prior to the judgment being recorded. On or about March 11, 1975, DeLucia negotiated and obtained a deposit receipt contract for the sale of property between Norman and Sally Hassan and Elsworth and Dora Crispin. Said transaction closed on or about June 30, 1975, whereupon DeLucia earned a commission. On or about June 23, 1975, DeLucia demanded payment of the commission. DeLucia subsequently sued Olson for the amount of commission due and received judgment in Small Claims Court which Olson paid prior to the recording of the judgment. Fred Snook was a registered real estate salesman and manager of Olson's office referred to as the "Fourth Street Office." In his capacity as a salesman, Snook obtained a listing for the sale of real property upon which David H. Gibson, a registered real estate salesman employed by Olson, negotiated a contract for sale and purchase between Hinsdale W. Woman's Clinic Profit Sharing Fund and Norman and Celia Savoy on or about July 16, 1973. This transaction closed on or about August 31, 1973, whereupon a real estate commission in the amount of $6,000.00 was paid at closing with an additional $12,000.00 in real estate commission being paid in monthly installments to Olson. From the $12,000.00, Snook was to be paid $45.00 per month until his commission was paid in full. Said payments were made until March, 1975, at which time Snook received no further payments. John J. Ricker, employed by Olson as a registered real estate salesman, obtained a listing on real property owned by Arthur and Simone Clinton. This property was subsequently sold by Gary A. Ater, who is also employed by Olson as a registered real estate salesman. By virtue of having obtained a listing, John J. Ricker was entitled to a commission upon closing of the transaction, which occurred on or about April 10, 1975. Said commission was not paid Ricker until September, 1975, when the amount of the commission was paid as settlement of of an action pending between Ricker and Olson. Helen D. Pendleton, who is employed as a registered real estate salesman by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Byron Salvin and John and Iva Blake. Said transaction closed on or about May 20, 1975, whereupon Pendleton earned a commission under her employment contract with Olson. Pendleton subsequently requested payment from Olson but was not paid. She thereafter instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not been satisfied. Helen Pendleton also negotiated a real estate purchase agreement between Albert and Bonnie Older and Otto and Eleanor Rodeck. Said transaction closed on or about May 12, 1975, at which time the commission was earned by Pendleton pursuant to her employment agreement with Olson. Pendleton subsequently made demand for said commission. When she did not receive her commission, she instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not bee satisfied. Further, Pendleton negotiated a deposit receipt contract for the purchase and sale of real property between Diane Hammond and Marjorie McCauly on or about March 8, 1975. This transaction closed on or about May 23, 1975, whereupon Pendleton earned a commission, which she did not receive after having made demand for payment on Olson. She sued and obtained judgment for this commission, said judgment not yet having been satisfied as of the date of hearing. On or about February 25, 1975, Helen D. Pendleton entered into an apprenticeship with Kenneth M. Olson, Jr. As a condition precedent to undertaking to be Pendleton's apprenticing broker, Olson required that Pendleton and he execute a noncompetition agreement. The Florida Real Estate Commission presented no evidence with regard to the allegations of Count 11. The Petitioner argued that the Respondent, Olson, had admitted the allegations contained in paragraphs 1, 2, 3, and 4 of Count 11 in his Answer, and that based upon those admissions Olson had violated the provisions of Rule 21V-14.06, Florida Administrative Code, and therefore was in violation of Section 475.25(1)(d), F.S. Donald A. Ehmig was employed as a registered real estate salesman by Olson. In that capacity Ehmig negotiated real estate transactions between Flannagan and Myers, Mendenhall Tsolaks and Caraway and Dickmen. These transactions were closed on January 22, January 15, and April 1, 1975, whereupon Ehmig earned a commission on each transaction pursuant to his employment agreement with Olson. Evidence was received that indicates that Olson, as co- signer of a note with Ehmig, had paid $1,172.36 of a deficiency judgment on December 5, 1974. See Exhibit 29, check to St. Pete Sports Car Center in the amount of $1,172.36 on the account of Olson & Associates. Ehmig candidly admitted that it was his intent that Olson, as co-signer, incur the financial loss upon his (Ehmig's) default of the note. The amount of monies owed Ehmig by Olson and the amount of monies owed Olson by Ehmig were approximately the same. No evidence was presented that Kenneth M. Olson, Jr., knew or had any reason to know that Allain Rimar had tendered an earnest money deposit in the amount of $500.00 on the purchase of certain real property negotiated through his saleswoman, Susan Lee Stuart. Stuart's testimony was that Jack Fulmer was the broker involved in the transaction and that to her knowledge, Olson had no knowledge of the earnest money deposit. Fulmer, who was originally charged in the Complaint, has died since issuance of the Complaint, and the charges against Fulmer and Susan Lee Stuart were dropped by the Florida Real Estate Commission.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer would recommend that the Florida Real Estate Commission order Kenneth M. Olson, Jr., be directed to pay the judgment(s) obtained by Helen Pendleton, or face suspension for 30 days, and further that Olson receive a letter of official reprimand. DONE AND ORDERED this 16th day of March, 1977, in Tallahassee, Florida. Stephen F. Dean Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Seymour A. Gordon, Esquire 153 Central Avenue Post Office Box 265 St. Petersburg, Florida 33731 =================================================================
Findings Of Fact Respondent David Henry Charnack was connected with Property Resale Service, Inc., as a registered real estate salesman, from April 17, 1974, to March 7, 1975.
Findings Of Fact Evidence reveals that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. Said application revealed that Defendant, Frank Viruet, was to become the Active Firm Member Broker, and Vice president of the Company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; and that Lee Klien was to become president and Director of the company. The application also revealed that Carol Bauman is the wife of the Defendant Bernard Bauman (Progress Docket #2357); that Lee Klien is the sister of Carol Bauman; and that Defendant Jeffrey Bauman (Progress Docket #2858) is the son of Bernard Bauman. Subsequent to filing the above corporate application For registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that at each such change, new application For corporate registration was filed with the Commission. Further, the stated offices and Active Firm Member Broker remained the same. Thus, For all legal purposes, the above corporate entities are one and the same. As to Count One of the complaint, according to the certificate of the Commission's Chairman, dated December 3, 1976, (which was offered and received into evidence without objections), during the period November 1, 1975 through the date of said certificate, no registration was issued to or held by either of the three corporations above referred to. This was confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet the broker, who was to have become the Active Firm Member Broker For the above entities. Approximately December 2, 1975, evidence reveals that Land Re-Sale Service, Inc., entered a written lease For office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, For the period January 1 through December 31, 1976. (A copy of the lease was entered into evidence by stipulation). The unrebutted testimony by Plaintiff Reagan was that he observed during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty, Inc., Room 212 (2nd Floor). A similar display on the building directory appeared on the second floor. Plaintiff's witness, Peter King, a representative of and For Southern Bell Telephone Company, testified that on December 27, 1975, three phones were installed in said room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc., and that from January 1 through January 16, 1976, approximately 575 phone calls were made from such phones during evening hours to out-of-state numbers. Jeffrey Bauman and Bernard Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but did not recall nor introduce records as to how many calls were in fact made. Jeffrey Bauman testified that Frank Viruet had also made phone calls from the stated phones but did not state whether they were solicitations. On this point, Frank Viruet denied making solicitation calls although he admitted using the phone For other purposes. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 For each listing received. He further testified that upon being advised, by the investigator with the Commission, that the operation was in violation of the licensing law by reason that no registration had been issued to the applicant company, and that all who were engaged in real estate activities For said company were in violation of the licensing law, the premises were closed and all real estate activities ceased. This was confirmed by nominal Plaintiff Reagan. Frank Viruet denied having knowledge of real estate activities being conducted by the Baumans. He further denied knowledge that office space in Room 212 of the Nankin Building was occupied by Land Re- Sale Service, Inc. and used by the Bauman's. He admitted to signing the application For registration which was submitted to the Commission as the corporate Active Firm Member Broker to be. As to Count Two, evidence established as stated above, that defendants Jeffrey and Bernard Bauman had solicited real estate sales listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, the Baumans, admitted by their own testimony that their listings were never published or otherwise disseminated to brokers either intrastate or nationwide. Bernard Bauman testified that no money was ever returned to senders. There was no evidence received to show that Defendant Frank Viruet knew that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation; nor that Viruet was aware that solicitations were being made. As to Count Three, Plaintiff alleges that the acts and doings set out in Counts One and Two establish a course of conduct by defendants upon which revocation of their registration should issue.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Pasquale A. Verona (Verona), is a licensed real estate broker having been issued license number 0389728 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). He is the qualifying broker and an officer of respondent, P. A. Verona and Associates, Inc., which holds broker's license number 0251674. The real estate firm is located at 3828 Seago Lane, Fort Myers, Florida. In May 1988 Donna Jean and Barry C. Minnich were shopping for a residential lot in Carillon Woods, a subdivision in Fort Myers, Florida. After seeing a lot advertised by Verona s firm, Donna Jean telephoned Verona's office and made an appointment to inspect the lot on May 13, 1988. After inspecting the lot, Donna Jean decided to purchase the same and, on the same date, she and Verona orally agreed upon a purchase price of $49,000 with a closing date of May 25, 1988. Verona desired to close on that date since he had a previously planned trip to California with his family beginning on May 26, 1988. The oral agreement was reduced to a written contract and executed by the parties on May 13, 1988. At Verona's request, and at the same time the contract was executed, an addendum was prepared by the Minnichs' attorney which provided, in part, that a $54,000 sales price would be used but that at closing Verona would refund $5,000 to the Minnichs. This refund was to be taken out of Verona's real estate commission and rebated to the buyers. Thus, the net sales price was still $49,000 as originally agreed to by the parties. As earnest money, the Minnichs gave Verona $5,000 which was deposited into Verona' s trust account. The Minnichs immediately made application for a loan with John E. Smith, a vice-president of a local C & S bank. On May 18, 1988 they placed an order for a title commitment with Southwest Title, Inc., a Fort Myers title company designated by the parties to prepare the title insurance and handle the closing. The title company was placed on notice that the contract called for a May 25 closing date. According to Mary Jane Kalpin, a Southwest Title, Inc. employee who worked on this transaction, there were unsatisfied water and sewer assessments on the lot owed by Verona to the City of Fort Myers. However, she said this was not unusual and happened quite frequently in subdivisions such as Carillon Woods. As it turned out, however, the city employee who oversaw these assessments was on vacation the week prior to the May 25 closing date, and Kalpin could not obtain payoff figures from any other city employee. In addition, Kalpin needed Verona to furnish her with a certificate of good standing on the property. 1/ He did not do so by May 25. Therefore, she was unable to prepare a closing package by the contract closing date. On May 23, 1988, C & S issued a loan commitment to the Minnichs. In the meantime, Kalpin had completed her title search and on May 23 she spoke with Verona who advised her the deal must close by May 25. When she responded she could not get payoff figures from the City by that date, Verona told her it was a "dead deal". On or about May 24, Donna Jean spoke with Verona and, after being told of the problems encountered by the title company, reiterated her desire to buy the lot. She requested that Verona extend the time for closing so that the missing items could be obtained. Although Verona denies that he gave such an extension, and nothing was reduced to writing, it is found that Verona orally agreed to an extension of time prior to leaving for California. This is supported by the fact that, after returning from California, Verona's wife delivered a certificate of good standing to the title company on June 9, and the title company representative was under the impression a closing would be held at 1:00 p.m. the same date. However, at Verona's insistence, the closing did not take place. On June 15, Verona sent the Minnichs a letter with a check in the amount of $5,000 which represented the deposit on the property. In his letter, Verona stated that he "realize(d) that the delay in the closing on Lot #6, Carillon Woods is not being caused by anything you have done" and that those things occurred whenever "we place a transaction in the hands of another". He added that he had received another offer in the amount of $58,000 from another party and if the Minnichs were willing to pay a "net figure of $56,000", he would give them the opportunity to purchase the lot. The Minnichs chose not to cash the check but instead advised Verona they intended to seek legal advice on their rights under the original contract. Donna Jean deposited the check around June 22 but learned the next day that Verona had stopped payment on the check. On June 24, 1988 Verona again wrote the Minnichs and advised them to reconsider their threat to take legal action since he had "never lost a real estate dispute". He also advised them that, pursuant to the contract, he was claiming the $5,000 as liquidated damages due to their failure to close by May Finally, he pointed out that the original contract "was terminated on June 15 by letter". On an undisclosed date, but prior to September 1988, Donna Jean spoke with Verona by telephone and requested a refund of her deposit. Her request was denied. The Minnichs then filed a complaint with the Division. On September 2, 1988 Verona advised the Division there was a dispute concerning the deposit and requested the issuance of a disbursement order. On January 11, 1989, the Division, through its counsel, wrote Verona and advised him that, because of disputed facts a disbursement order could not be issued, and he must immediately seek arbitration or file an interpleader action in circuit court. Choosing to utilize arbitration, Verona contacted the Miami office of the American Arbitration Association (AAA) on February 15, 1989 and requested a "package" from which an agreement to arbitrate could be prepared. After receiving a package of documents, Verona sent an agreement with a letter to the Minnichs on February 24, 1989. They did not respond to his offer to arbitrate. On March 6 he sent a follow-up letter again requesting the Minnichs to arbitrate. On March 9 Verona learned that AAA would not arbitrate the dispute. As of that date, Verona was aware of the fact that his only remaining alternative was to file an interpleader action in circuit court. On March 23, 1989 the Division, through its counsel, sent a second letter to Verona advising him that he had apparently ignored the earlier letter and that he must immediately take action to resolve the dispute. On May 5, 1989 Verona sent his attorney, George Knott, a check in the amount of $5,000 with a request that Knott "handle the interplea (sic) action as to the disposition of $5,000 previously held in my real estate firm's escrow account". The suit was eventually filed by Knott in circuit court on September 8, 1989. The suit requested that Verona be awarded the $5,000 deposit plus "damages" and attorney's fees. When asked at hearing why the suit had not been filed earlier, Verona responded that, once the matter was turned over to his attorney, he had no control over the actions of his attorney. He also acknowledged that he has never instructed his attorney to attempt to resolve the matter as quickly as possible. As of the date of hearing (June 20, 1990), the matter was still pending in circuit court. There is no evidence that Verona did not maintain the $5,000 deposit in his firm's escrow account until the money was turned over to his attorney on May 5, 1990. There is also no evidence that respondents have ever been disciplined by the Division.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsection 475.25(1)(d) and (e), Florida Statutes (1987) and Rule 21V-10.032, Florida Administrative Code (1987), and that their brokers' licenses be suspended for six months and thereafter be placed on one year's probation. DONE and ENTERED this 24th day of July, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record contained herein, I make the following findings of fact. The Department is the agency responsible for licensing, regulating, and disciplining real estate broker-salespersons in the State of Florida. Respondent's Florida real estate broker-salesperson license number 0389600 was originally issued on December 19, 1983. His real estate license was active in Florida between June 1, 1992 and July 1, 1993. During this period, Respondent was registered as a broker-salesman for Klein and Heuchan, Inc., located in Clearwater, Florida. Respondent's real estate license expired on or about July 1, 1993, and was activated on March 14, 1995. Between March 14, 1995 and July 31, 1995, Respondent was a broker-salesperson with Viewpoint Realty in Belleair Bluffs, Florida. During the dates at issue in this proceeding, Respondent's real estate license was invalid. In the summer of 1993, Respondent was employed as a mortgage loan consultant by Savings of America, St. Petersburg, Florida. In this position, Respondent worked directly with real estate brokers to provide financing for the sale of real estate transactions in the Tampa Bay area. On or about July 1, 1993, Respondent took steps to place his broker-salesperson license with Ahmanson Investments, the real estate division of Savings of America. On June 29, 1993, Respondent completed a Department form entitled "Request for License or Change of Status" (Request). The Request indicated that the broker employer for whom Respondent would be employed was Ahmanson Investments. After completing the "Applicant Section" of the form, Respondent submitted the Request to his supervisor, who then forwarded it to Mary Adair, the broker of record for Ahmanson Investments. The "Broker/Employer Section" of the request was completed and executed by Mary Adair. The completed Request was forwarded to the Regional Office of Savings of America to be distributed to the proper authorities. Respondent was told by Savings of American/Ahmanson Investments that the Department had been notified that Respondent's broker-salesperson license had been transferred to Ahmanson Investments. Based on representations of his employer, Savings of America, Respondent believed that the Request had been properly filed with the Department and that his real estate license was in effect. Respondent learned after August 1994, that the Request was never sent to the Department by Savings of America. As a result of Respondent's improper reliance on Savings of America to file the Request, Respondent did not file the Request with the Department. By statute, Respondent was required to notify the Department within ten (10) days of any address change or change in employer. By failing to properly notify the Department, Respondent's license ceased to be in effect when he placed it with and was employed by Ahmanson Investments in July 1993. Respondent operated as a real-estate broker-salesperson while employed with Ahmanson Investments although his Florida real estate license ceased to be in effect during the time he was so employed. In August 1994, Respondent contacted Juanel Topper of Topper Realty, Inc., about purchasing a house that was listed by Topper Realty, Inc. Respondent indicated to Ms. Topper that he was interested in purchasing the house as a personal residence for himself and his wife. On or about August 14, 1994, Ms. Topper showed the property to Respondent and his wife. Respondent visited the property three or four times after his initial contact with Ms. Topper and asked Ms. Topper several questions regarding the property. During one of his discussions with Ms. Topper concerning the property, Respondent gave Ms. Topper a business card bearing the name "Stewart S. Angel Realty, Realty CRS CRB-Developer". The card listed a toll free telephone number, a Florida telephone number, and a St. Petersburg, Florida address. Printed on the top left hand corner of the card was "Michigan- Florida". The business card given to Ms. Topper had a line drawn through the word "Florida" that was printed in the top left corner. The Respondent is a licensed real estate broker in Michigan and testified that Stewart A. Angel Realty is a Michigan company. However, the Stewart A. Angel Realty card lists only a Florida address. Although there is a toll free telephone number printed on the card, the only other telephone number on the card is a Florida number. The information on the card makes it appear that Stewart A. Angel Realty is a Florida business. In August 1994, Ms. Topper telephoned Respondent to answer several questions he had concerning the property. Ms. Topper called one of the telephone numbers shown on the "Stewart S. Angel Realty" business card that Respondent had given to her. The answering machine for that number stated that the name of the business called was "Angel Realty". Ms. Topper confirmed with the Department that Angel Realty was not registered in Florida. When Respondent initially inquired about the property, he did not reveal to Ms. Topper that he was an agent. However, on a previous occasion, Respondent had given Ms. Topper a business card which indicated that he was a conventional loan consultant for Savings of America. The business card had the following designations listed immediately after Respondent's name: "GRI, CRS, and CRB". On or about August 24, 1994, Respondent advised Ms. Topper that as an active real estate broker, he wanted to participate in the commission paid if in fact he purchased the property. Ms. Topper confronted Respondent about not revealing to her initially that he was a broker and would want to share in any commission earned as a result of the sale of the property. Respondent believed that Ms. Topper was aware that he considered himself to be a licensed real estate broker-salesperson. Respondent's belief was based on previous business dealings between himself and Ms. Topper as well as the fact that she had received Respondent's Savings of America business card. Respondent did not purchase the property which was the subject of discussions between Respondent and Ms. Topper. No agreement was ever executed by the Respondent and Ms. Topper regarding the sale/purchase of the property. Neither was any money ever exchanged between the parties regarding the sale or purchase of the property. Respondent has been a licensed real estate broker-salesperson for almost twelve years and has not had any other complaints filed against him prior to the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Respondent has violated Sections 475.42(1)(a), 475.23, and 475.25 (1)(c) and (e), Florida Statutes; issuing a written reprimand; and imposing a $1,000.00 to be paid in accordance with this Recommended Order. RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 2nd day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3608 To comply with the requirements of Section 120.59 (2), Florida Statutes. The following rulings are made on the Petitioner's proposed findings of fact: Paragraph 1. Accepted and incorporated. Paragraph 2. First sentence rejected as not supported by competent and substantial evidence. Second sentence accepted. Paragraphs 3-9. Accepted and incorporated. Paragraph 10. First sentence rejected as not supported by competent and substantial evidence. The evidence showed that in initial discussion with Ms. Topper, Respondent did not reveal that he was agent. Second sentence accepted. Paragraph 11. Accepted. COPIES FURNISHED: Daniel Villazon, Esquire Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street #N-308 Post Office Box 1900 Orlando, Florida 32802-2465 Stewart S. Angel, Jr. Post Office Box 41465 St. Petersburg, Florida 33743-2465 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times relevant hereto, Petitioner was licensed as a real estate broker by the Florida Real Estate Commission. In May 1988, he was working as a broker-salesman with G.V. Stewart, Inc., a corporate real estate broker whose active broker is G.V. Stewart. On April 20, 1989, Respondent submitted a Contract for Sale and Purchase to the University of South Florida Credit Union who was attempting to sell a house at 2412 Elm Street in Tampa, Florida, which the seller had acquired in a mortgage foreclosure proceeding. This offer reflected a purchase price of $25,000 with a deposit of $100 (Exhibit 2). The president of the seller rejected the offer by striking out the $25,000 and $100 figures and made a counter offer to sell the property for $29,000 with a $2000 deposit (Exhibit 2). On May 9, 1989, Respondent submitted a new contract for sale and purchase for this same property which offer reflected an offering price of $27,000 with a deposit of $2000 held in escrow by G.V. Stewart (Exhibit 3). This offer, as did Exhibit 2, bore what purported to be the signature of William P. Murphy as buyer and G. Stewart as escrow agent. In fact, neither Murphy nor Stewart signed either Exhibit 2 or Exhibit 3, and neither was aware the offers had been made at the time they were submitted to the seller. This offer was accepted by the seller. This property was an open listing with no brokerage firm having an exclusive agreement with the owner to sell the property. Stewart's firm had been notified by the seller that the property was for sale. Respondent had worked with Stewart for upwards of ten years and had frequently signed Stewart's name on contracts, which practice was condoned by Stewart. Respondent had sold several parcels of property to Murphy, an attorney in Tampa, on contracts signed by him in the name of Murphy, which signatures were subsequently ratified by Murphy. Respondent considers Murphy to be a Class A customer for whom he obtained a deposit only after the offer was accepted by the seller and Murphy confirmed a desire to purchase. Respondent has followed this procedure in selling property to Murphy for a considerable period of time and saw nothing wrong with this practice. At present, Respondent is the active broker at his own real estate firm.
Recommendation It is RECOMMENDED that William H. McCoy's license as a real estate broker be suspended for one year. However, if before the expiration of the year's suspension Respondent can prove, to the satisfaction of the Real Estate Commission, that he fully understands the duty owed by a broker to the seller and the elements of a valid contract, the remaining portion of the suspension be set aside. ENTERED this 29th day of November, 1989, in Tallahassee, Florida. K. N. AYERS 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 29th day of November, 1989. COPIES FURNISHED: John Alexander, Esquire Kenneth E. Easley 400 West Robinson Street General Counsel Orlando, Florida 32802 Department of Professional Regulation William H. McCoy 1940 North Monroe Street 4002 South Pocahontas Avenue Suite 60 Suite 106 Tallahassee, Florida 32399-0792 Tampa Florida 33610 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
