Findings Of Fact On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months. RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February,1982 COPIES FURNISHED: Theodore J. Silver Esquire 9445 Bird Road Miami, Florida 33165 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue Whether Respondent, a licensed real estate salesman, is guilty, as charged, of fraud, misrepresentation, culpable negligence or breach of trust in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact I. At all times material to the charges, Respondent was a licensed Florida real estate salesman associated with Woodlake Realty, Inc., in Melbourne, Florida. He obtained his real estate salesman's license in 1982. On March 14, 1985, became a licensed real estate broker and now operates his own business under the name of Peter Frontiero Realty. His office is located in his residence at 3247 West New Haven Avenue, Melbourne, Florida. II. On or about April 7, 1983, while employed as a real estate salesman at Apollo Realty, Inc., Mary E. Sousa obtained a listing on a tract of land owned by John and Janet Biansco. In connection with the listing, an Exclusive Right of Sale Contract was executed. This contract contained the following legal description of the tract to be sold: Parcel of land lying in the County of Brevard in the southwest 1/4 of Sec 11, TW 28 South Range 36E more particularly described as follows: S 2/3 of the following tract: commence at SE corner of W 1/2 of Sec 11 TW 28 South Range 36E, thence along south line of said Sec 11, 589-54-14 West for 30 feet., thence north 1- 17-00E for [sic] 43 feet to the point of beginning thence south 89-54-14 west along the north R/W line Melbourne Tillman Drainage district canal #63 for 297.43 feet, thence north 1-15-49 east for 353 feet, thence north 89-54-14 east for 297.55 feet, to the west R/W line of Arizona Street; thence south 1 17-00 West along R/W line for 353.00 feet, to the point of beginning. (P-4, Admissions No. 5, 6) As so described, this tract of land measures 235.34' x 297.47' and contains approximately 1.61 acres. (Admission No. 7) Mary E. Sousa and her broker, Peter Sergis, however, incorrectly determined that the legal description described a tract of land measuring 297' x 353' feet, containing 2.4 acres. (They determined this by examining the legal description attached to the Listing Contract and relying on Mr. Biansco's representation that the tract contained 2.4 acres.) Mary E. Sousa then had the property listed in the Melbourne Multiple Listing Service (MLS) on or about April 26, 1983. The MLS listing reflected the incorrect measurements and size of the tract, as submitted by Ms. Sousa. (P-3, Admission No. 8) III. During May, 1983, Karen Dunn-Frehsee and Paul Winkler (her fiance), contacted Respondents, a real estate salesman associated with Woodlake Realty, Inc., about purchasing a home. After Respondent showed them a house they were interested in, Ms. Dunn-Frehsee and Mr. Winkler decided that what they really wanted was to buy land on which they could build a residence. They told Respondent that they would need a minimum of two acres since they had two horses: local zoning requirements required at least one acre of land per horse. (Admission No. 10, Testimony of Dunn-Frehsee) Respondent checked MLS and found the listing (containing the incorrect measurements and size) of the Biansco property. He showed the land to Ms. Dunn- Frehsee and Mr. Winkler, who liked it and decided to make an offer. (At that time, Respondent was unaware that the MLS listing erroneously described the tract to be 297' x 353', containing 2.4 acres, when in fact it was 297.47' x 235.34', containing approximately 1.61 acres.) On or about May 5, 1983, Respondent prepared a "Contract for Sale and Purchase" containing the offer of Ms. Dunn-Frehsee. After she signed it, it was presented to the Bianscos, who subsequently accepted it. (Admission No. 12, P- 1) The Contract for Sale and Purchase contained, on the attached addendum--a correct legal description of the tracts as the description was taken from the listing agreement, not the erroneous MLS listing. Prior to closing, Respondent contacted Ms. Dunn-Frehsee several times to advise her regarding efforts being made by Lawyers Title Insurance Company to locate the prior owner of the property and secure a quitclaim deed covering a 30-foot strip of land bordering Arizona Street on the east side of the property. He was still unaware of the discrepancy between dimensions of the property contained on the MLS listing and the Contract of Sale. He did not tell Ms. Dunn-Frehsee that he had personally measured the property, or that he had confirmed the accuracy of the listing information. He was concerned only with the problem of obtaining access to the property through the 30-foot strip bordering Arizona Street. Although he told Ms. Dunn-Frehsee that he thought she was getting 2.7 or 3.0 acres by virtue of the additional strip of land which was to be quitclaimed to her at no additional cost, this belief was based on his reasonable assumption that the original tract contained 2.4 acres, as represented by the listing agents (Mary Sousa and Peter Sergis of Apollo Realty) and reflected in the Multiple Listing Book. Respondent also contacted Mr. Winkler, but similarly, did not represent to him that he (Respondent) had personally measured the property or confirmed the MLS information. (Testimony of Respondent) Prior to the closing, Respondent discussed with Ms. Dunn-Frehsee the need to order a survey of the property. She then ordered a survey, which was completed a week and a half before closing. After picking it up, Respondent telephoned Ms. Dunn-Frehsee. There is conflicting testimony about the conversation which ensued. Respondent testifies that he telephoned her and asked if she would like him to deliver the survey to her house or mail it to her, or if she would like to pick it up at his office. (TR-30) Ms. Dunn- Frehsee, on the other hand, testified that Respondent telephoned her stating that he had looked the survey over and there was no reason for her to drive out to his office to pick it up, that he would bring it to the closing. (TR-48) Neither version is more plausible or believable than the other. Both Respondent and Ms. Dunn-Frehsee have a discernible bias: Respondent faces charges which could result in the revocation of his professional license; Ms. Dunn-Frehsee has sued Respondent for damages resulting from her purchase of a tract of land which was smaller than what she was led to believe. Since the burden of proof lies with the Departments, the conflicting testimony is resolved in Respondent's favor as it has not been shown with any reliable degree of certainty that Respondent told Ms. Dunn-Frehsee that he had looked the survey over and that there was no need for her to examine it before closing. Both witnesses agree, however, and it is affirmatively found that Ms. Dunn-Frehsee agreed that Respondent should bring the survey with him to the closing, which was imminent. The surveys prepared by Hugh Smith, a registered land surveyors correctly showed the property to be approximately 235.33' x 297.43', but did not indicate the size by acreage. (Admission No. 20, P-2) At closings on or about June 23, 1983, Respondent showed the survey to Ms. Dunn-Frehsee. Ms. Dunn- Frehsee questioned the measurements as not being the same as she recalled being on the MLS listing. Neither Ms. Sousa nor Respondent, both of whom were in attendance, had a copy of the MLS listing so that the measurements on the two documents were not compared. (Admission No. 22-23) Ms. Dunn-Frehsee chose to close the transaction anyway after her questions regarding the property were apparently resolved to her satisfaction by Kathleen Van Mier, the agent for Lawyers Title Insurance Company which was handling the closing. Ms. Dunn-Frehsee signed a contingency statement indicating that all contract contingencies had been satisfied and that she wished to proceed with the closing. (TR-4O-41; 77-78) Respondent was misinformed regarding the dimensions and size of the property by the listing agents, Mary Sousa and Peter Sergis of Apollo Realty, who had provided inaccurate information to the Multiple Listing Service. Respondent reasonably relied upon the listing information and the representations of the listing agents concerning the size of the property. In his discussions with Ms. Dunn-Frehsee and Mr. Winkler, he drew reasonable inferences from such (incorrect) representations. He did not intentionally mislead anyone. It has not been shown that, under the circumstances, he failed to exercise due care or that degree of care required of a licensed real estate salesman. Nor has it been shown that he violated any professional standard of care adhered to by real estate salesmen and established by qualified expert testimony at hearing.
Recommendation Based on the foregoing it is RECOMMENDED: That the administrative complaint, and all charges against Respondent be DISMISSED for failure of proof. DONE and ORDERED this 11th day of October, 1985, 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 11th day of October, 1985.
Findings Of Fact At all times material to this case, Respondent Bruce D. Robertson ("Respondent") was a licensed real estate broker, license #0343680, operating as a president and qualifying broker for IDC Properties ("IDC") At all times material to this case, IDC was a corporation registered as a real estate broker, license #0234614, located at 17980 San Carlos Boulevard, Fort Myers Beach, Florida. By agreement dated January 16, 1990, the Respondent agreed to pay to salesperson Randy Thibault a commission of $10,362.50 upon the closing of the sale of property at "Old Pelican Bay, Inc.," to Paula E. Brown, hereinafter referred to as the "Brown transaction". On July 5, 1990, the Brown transaction closed. The Respondent received the commission funds related to the sale of the property. The Respondent subsequently issued a check in the amount of $10,362.50 payable to Mr. Thibault. When Mr. Thibault attempted to negotiate the check, he was informed that the Respondent had issued a stop payment order on the check. Mr. Thibault thereafter filed a civil complaint against the Respondent in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida Case No. 90-5851-CA. The matter was heard in a bench trial. On October 3, 1991, Mr. Thibault obtained a Final Judgement in the amount of $11, 817.42 against IDC for the sum owed plus interest. On October 28, 1991, Mr. Thibault obtained a Final Judgement in the amount of $14,551.31 against IDC for the sum owed plus interest, attorney's fees and costs. On November 4, 1991, the Respondent filed a Notice of Appeal in the matter in the Second District Court of Appeal but subsequently abandoned the appeal. At hearing, the Respondent asserted that Mr. Thibault received his commission share at the closing. The Respondent presented no credible documentary evidence to support the claim. The Respondent also asserted that Mr. Thibault misled the Respondent as to Mr. Thibault's role in the sale of other unrelated property and that the Respondent intends to take legal action against him. The Respondent presented no credible documentary evidence to support the claim. The Respondent admitted that the Final Judgement obtained by Mr. Thibault remains unsatisfied and stated that stated that he will not pay the judgement pending resolution of the unrelated matter alleged above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a Final Order determining Bruce D. Robertson and IDC Properties, Inc., guilty of the violations set forth herein and revoking the licenses identified herein. DONE and ENTERED this 19th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6308 The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. The Respondent did not submit a proposed recommended order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Bruce D. Robertson IDC Properties, Inc. 17980 San Carlos Boulevard Fort Myers, Florida 33931
The Issue Whether the Respondents committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate, pursuant to the laws of the State of Florida. At all times pertinent to this proceeding, Respondent, Lynton Oliver Thomas, was a licensed real estate broker, having been issued license number 0504596 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Thomas was as a broker-salesperson at Pagliari Realty, Inc., 323 Northeast 167 Street, North Miami Beach, Florida 33162. At all times pertinent to this proceeding, Respondent, L T Express Realty Corp., was a corporation registered as a Florida real estate broker, having been issued license number 0273473 in accordance with Chapter 475, Florida Statutes. At all times pertinent to this proceeding, Respondent Thomas was licensed and operating as qualifying broker and officer of Respondent L T Express Realty Corp. The office for this corporate entity was located at 2124 Northeast 123 Street, North Miami Beach, Florida. There was no evidence that Respondent Thomas operated his corporate entity from any other office. On May 7, 1995, Respondent Thomas, a licensed real estate broker, d/b/a L T Express Realty Corp., negotiated a contract for the sale of a house between Bruce and Ann McCormick (as sellers) and Marie S. Saintel and Carita Luc (as buyers). The buyers gave Respondent Thomas an earnest money deposit in the amount of $5,528.00. The transaction failed to close. The sellers, through their agent, attempted to make a demand upon Respondent Thomas for delivery of the earnest money deposit. The sellers' agent was unable to serve the demand on the Respondents because the Respondents had closed their offices and could not be located. Respondents had, or should have had, a good faith doubt as to the proper way to disburse the escrowed funds. Respondent Thomas, without authorization from the sellers, returned $3,000.00 of the original $5,528.00 deposit to the buyers. The balance of the earnest money deposit, in the amount of $2,528.00, has not been recovered from the Respondents. Rule 61J2-10.032(1), Florida Administrative Code, provides the procedure real estate brokers are required to follow when competing demands are made for funds that have been received in escrow or when a broker has a good faith doubt as to how escrowed funds should be disbursed. At no time did Respondents attempt to invoke those procedures. Kenneth G. Rehm, Petitioner's investigator, visited Respondent L T Express Realty Corp. and discovered that Respondent Thomas had abandoned his registered office. Respondent Thomas failed to notify Petitioner that he closed his real estate office at 2124 Northeast 123 Street, North Miami Beach, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that finds Respondents guilty of the violations alleged in Counts I-VIII of the Administrative Complaint. As a penalty for these violations, the Final Order should revoke all licenses issued by Petitioner to Respondents. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Mr. Lynton Oliver Thomas L T Express Realty Corp. 10810 Northeast Tenth Place Miami, Florida 33161 CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997 Henry M. Solares, Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto Alvin D. Hestekind was licensed as a real estate salesman in Florida and was employed by a licensed real estate broker, Phillip W. Cunnagin, in his Palm Harbor office. In September, 1982, Peter Maranda, a friend of Respondent, was visiting in Florida and was looking for property to purchase. Respondent's office had a listing on property at 40 North Louisiana Court. Respondent heard the owner would take less than the asking price and suggested Mr. Maranda submit an offer $4,000 under the asking price. Respondent typed up the offer, Maranda gave him $100 deposit for which Respondent wrote a receipt; and Respondent forthwith presented the offer, which was immediately rejected. At this time Respondent tore up the contract but did not refund the deposit to Maranda or place it in escrow with Respondent's broker. A few days later Respondent drove Maranda to the airport and Maranda returned to Minnesota. Respondent testified that Maranda stayed with him while he was in New Port Richey and never asked for the return of the deposit. Respondent told Petitioner's investigator that he retained the $100 deposit for the week's room and board he provided Maranda. After waiting a few weeks for the return of his deposit, Maranda sent a memo (Exhibit 1) to the Cunnagin real estate office demanding return of his $100 deposit. When Cunnigan questioned Respondent about the transaction, Respondent told him that Respondent had given the deposit back to Maranda and had torn up the offer and thrown it in the wastebasket. Cunnagin wrote on December 20, 1982 (Exhibit 2), to tell Maranda Respondent had been fired from his real estate office, that Respondent said he returned the deposit to Maranda, and that, if he had not returned the deposit he could be in danger of losing his real estate license. Maranda responded by letter dated December 30, 1982 (Exhibit 3), again stating that Respondent had not returned the deposit and all he wanted was his $100 "no more, no less." Respondent acknowledged receiving the $100 deposit and writing a receipt from his personal receipt book; and further testified that he himself typed up the contract at his home, that there was nobody at the office to whom the deposit could be given, and that, when the offer was summarily rejected, he tore up the contract. He further testified Maranda never asked him for return of the deposit, that he understood Maranda was still interested in buying property in Florida after he departed, and that he was holding the money to use as a deposit for other property Maranda would be interested in buying. He testified that if Maranda wanted his $100 back all he had to do was ask him and he would return it. Respondent has been licensed since 1979 but has been actively associated with a real estate office for only six months. His license is currently inactive.
Findings Of Fact Respondent filed application for registration as a real estate salesman on June 24, 1974 and was issued a license pursuant to this application on October 25, 1974. At the time of the filing of the application and subsequent thereto, Respondent was employed by Florida Savings and Loan Services, Inc. and its predecessor company, Florida Informanagement Services, Inc. in the capacity of a real estate appraiser and head of the appraisal department for said company. On July 26, 1975 Respondent performed appraisal services on behalf of Central Development, Inc. to ascertain the fair market rental appraisal of 5 Pizza Huts. For this service his company, then Florida Informanagement Services, Inc. billed Central Development, Inc. $3,000. Respondent performed other appraisals during the period in question which were not specifically delineated at the hearing.
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following facts were found: At all times relevant hereto, respondent was licensed as a real estate salesman in the State of Florida having been issued license No. 0204657 which license was inactive and scheduled to expire on March 31, 1983. Respondent's license was renewed on April 1, 1983. On or about May 13, 1983, on Information filed by the office of the State Attorney of the 12th Judicial Circuit in the State of Florida, respondent was charged with the commission of prostitution, lewdness or assignation; contrary to Section 796.07, Florida Statutes. Thereafter, on December 19, 1983, respondent made her appearance in the County Court of Sarasota County, Florida, before the Honorable Robert Stahlschmidt, County Court Judge, and entered a plea of no1o contendere to the charge of prostitution. On the same day, Judge Stahlschmidt, withheld adjudication; sentenced respondent to sixty (60) days in the county jail which was suspended; fined respondent $340, including court costs; placed respondent on supervised probation for a period of one (1) year under the supervision of the Salvation Army Correction Division upon the condition that she serve 50 hours of community services and not be involved in any acts of prostitution.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the respondent be found guilty of violation of Section 475.25(1)(f), Florida Statutes, 1983. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of REPRIMAND to the respondent. Respectively submitted and entered this 17th day of May, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 17th day of May, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Gerald C. Surfus, Esquire 150 East Avenue South Sarasota, Florida 33577 Sharla Speakman Post Office Box 4202 Sarasota, Florida 33578 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802
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 The Respondent Ben D. Harrell, is registered with the Real Estate Commission as a real estate salesman. Copies of the Administrative Complaint filed by the Commission were forwarded to the Respondent at the address he most recently provided the Commission. In addition, a copy of the complaint was hand served upon the Respondent. A copy of the Notice scheduling the final hearing was also forwarded to the Respondent at his last listed address. A Grand Jury for the United States District Court, Middle District of Florida, Jacksonville District, returned an indictment against the Respondent, charging him with knowingly making materially false statements in a Satisfaction of Mortgage submitted to the Federal Land Bank in violation of Title 18 United States Code, Section 1014. The Respondent was convicted of the charges and on May 13, 1977, he was adjudicated guilty and sentenced to serve two years in federal penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of five years. The crime of which the Respondent was convicted involves dishonest dealing in connection with a real estate transaction, and is a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July, 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Ben David Harrell 900 S.W. 15th Terrace Fort Lauderdale, Florida 33312 ================================================================= AGENCY MEMORANDUM ================================================================= November 8, 1978 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney RE: PD 3278 FREC vs. Ben David Harrell DOAH Case No. 78-835 Enclosed* is a copy of a Final Order suspending the above named Defendant's registration for a period of two years. Please mark your records accordingly. Mark A. Grimes MAG:lam * NOTE: The Agency Final Order is not available at the Division and therefore not a part of this ACCESS document.
The Issue The issues in this case are whether the Respondent, Peter C. Fischbach, should be disciplined on the charges alleged in the Administrative Complaint, FDBPR Case No. 97-83729. Specifically, the charges allege that, "under the guise of an alleged real estate 'consulting fee,'" Fischbach converted $10,000 of a prospective buyer's escrow money, contrary to their agreement that Fischbach only would be paid commission on the closing of a purchase, which did not occur. The three-count Administrative Complaint charges that these allegations establish violations of: Count I, Section 475.25(1)(b), Florida Statutes (1997), for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction fraud, misrepresentation; Count II, Section 475.25(1)(d)1, Florida Statutes (1997), for failure to account or deliver funds; and Count III, Section 475.25(1)(k), Florida Statutes (1997), for failure to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement was properly authorized.
Findings Of Fact The Respondent, Peter C. Fischbach, is a licensed real estate broker in Florida. However, he has not been very active in actual real estate brokering; most of his involvement in the real estate business has been investing in and renting real estate on his own account. In 1994, Fischbach met Peter Graf, a German national who vacationed in Florida with his wife, Kaethe. The Grafs were interested in purchasing a campground on Alligator Point in Franklin County, Florida. One of Fischbach's tenants was an acquaintance of the Grafs, and the Grafs were impressed with Fischbach's property. When the Grafs became acquainted with Fischbach, they also were impressed with Fischbach's knowledge of real estate investing. In early 1995, the Grafs asked Fischbach to help him evaluate the Alligator Point property and put together an offer to purchase. Fischbach agreed; however, he attempted to explain that he did not do much real estate brokering and would prefer to be paid a fee for his services in an amount agreed to by the parties after Fischbach was finished with his work so that both would be in a better position to evaluate the fairness of his remuneration. Fischbach proposed that once they agreed to the amount of Fischbach's fee, Fischbach would return to the Grafs any sales commission paid to Fischbach on the transaction. The Grafs readily agreed to Fischbach's proposal. Fischbach made several trips to Franklin County, discussed strategy with the Grafs, negotiated with the prospective seller, and telephoned and corresponded with the Grafs in Germany. At the request of the Grafs' attorney, Fischbach assumed the responsibility of preparing a letter of intent to memorialize the agreement between seller and buyer. The attorney planned to prepare all legal documents necessary to implement the letter of intent. Fischbach first drafted an incomplete and undated Purchase and Sales Agreement for a purchase price of $1,250,000. (Petitioner's Exhibit 1). This rough draft included a provision for a 6% sales commission payable to Fischbach "at the closing." The evidence suggested that this draft was not signed by the Grafs or presented to the seller. On or about March 10, 1995, Fischbach completed a revised letter of intent. (Petitioner's Exhibit 2). The revised letter of intent included a provision for a 4 percent sales commission payable to Fischbach "at the closing." It also provided for a $100,000 deposit payable $25,000 initially and $75,000 by September 1, 1995, until which time the Grafs would be entitled to investigate and inspect the property. Closing was proposed for January 1, 1996. The parties were to execute the Purchase and Sales Agreement to be prepared by the Grafs' attorney as soon as possible and within 30 days. This letter of intent apparently was signed by the Grafs and presented to the seller, but the seller declined and asked for more money. On or about March 21, 1995, Fischbach again revised the letter of intent. (Respondent's Exhibit 5). This revision was for a purchase price of $1,350,000. It omitted any provision for a sales commission for Fischbach. As before, it provided for a $100,000 deposit payable $25,000 initially and $75,000 by September 1, 1995. But this revision only gave the Grafs until May 30, 1995, to investigate and inspect the property, and required the parties to execute the Purchase and Sales Agreement to be prepared by the Grafs' attorney on or before May 31, 1995. As before, closing was proposed for January 1, 1996. This second revised letter of intent apparently was signed by the Grafs and the seller, and the Grafs paid the initial deposit of $25,000 to Fischbach to be held in escrow. The day after Fischbach prepared the second revised letter of intent for signature by the parties, he met with the Grafs to discuss his fee. In Fischbach's mind, although he intended to continue to be available to answer questions and assist the Grafs through closing, his primary work was done, and he and the Grafs were in a position to come to an agreement on what Fischbach should be paid for his work. The Grafs were accompanied by Martin Lehner, a German friend and financial advisor to the Grafs, who Fischbach thought would be able to translate for them as necessary to assure that all parties fully understood the discussion. Fischbach opened the discussion by telling the Grafs that 6% was a normal real estate commission. However, it was Fischbach's opinion that 6% of the $1,350,000 purchase price in the letter of intent was too much for what Fischbach had done for the Grafs. Fischbach suggested that they instead consider a fee in the amount of 2% of the purchase price, or $27,000. The Grafs agreed. The parties then agreed that the fee would be payable $10,000 in September 1995, $10,000 in September 1996, and $7,000 in September 1997. The agreement was reduced to writing in the form of a note stating: "Peter's commission (2%), 3/22/95, $10,000 Sept 95, $10,000 Sept 96, $7,000 Sept 97." (Respondent's Exhibit 5). Peter Graf signed the note in the presence of his friend and financial advisor, signifying the agreement of him and his wife. Fischbach intended to communicate to the Grafs that he was entitled to his $27,000 fee regardless whether the transaction closed. However, Fischbach's use of the term "2% commission" both in the discussion about his fee and in the note intended to memorialize the agreement may have contributed to a misunderstanding as to what would happen if the transaction did not close. In order to facilitate the eventual transfer of funds from the Grafs to the seller at closing, and to enable Fischbach to attend other matters on the Grafs' behalf while they were in Germany, Fischbach had the Grafs execute a power of attorney, in favor of Fischbach, on or about May 31, 1995. During the summer of 1995, Fischbach participated in continued negotiations designed to achieve tax benefits for both seller and buyer. The Grafs also consulted immigration attorneys to acquire the visa necessary for him to purchase and operate the campground. By letter dated July 13, 1995, Fischbach apprised the Grafs of the status and reminded them both that a second deposit installment of $75,000 was due in escrow by September 1, 1995, and that the first $10,000 of Fischbach's fee was also due in September 1995. The Grafs received the letter but never questioned what it said about Fischbach's fee. On or about July 17, 1995, the Grafs' attorney completed a proposed Contract for the Sale and Purchase of Real Estate and Agreement for the Sale and Purchase of Business Assets. However, before it was executed the Grafs insisted on the addition of a provision that would suspend purchase money mortgage payments for one year in the event of a catastrophic hurricane. By letter dated September 15, 1995, Fischbach notified the Grafs that the seller refused to include the hurricane catastrophe provision in the Purchase and Sales Agreement and that the seller was giving the Grafs until October 2, 1995, to sign the proposed Contract for the Sale and Purchase of Real Estate and Agreement for the Sale and Purchase of Business Assets. Fischbach also advised the Grafs: "If we are done for now, I would like to close up your escrow account, pay myself the first $10,000 payment as agreed, and return the remaining money to Martin [Lehner] for him to invest for you." The Grafs received the letter but never questioned what it said about Fischbach's fee. When Fischbach did not hear from the Grafs by the seller's deadline, Fischbach assumed the deal was off and wrote to the Grafs on October 3, 1995: "I now need to close your $100,000 plus interest escrow account. I also would like to pay myself the first $10,000 real estate consulting payment that was due in September. Deborah and I are getting married and we could use the money." In fact, Fischbach did not get married, and he did not need the money; the second quoted sentence was Fischbach's way of trying to ask for the overdue payment in a light-hearted manner. The Grafs received Fischbach's October 3, 1995, letter and again did not question what it said about Fischbach's fee. However, by this time it was occurring to the Grafs that they were going to be out $10,000 and not have anything to show for it. Notwithstanding the agreement regarding Fischbach's fee, the Grafs now thought $10,000 was too much to pay Fischbach in light of the failure of the deal to close. They decided to take it up with Fischbach when they returned to Florida from Germany. The Grafs never communicated to Fischbach at any time that they had any questions whatsoever about Fischbach's fee, or Fischbach's intention to deduct it from the escrow money. On October 18, 1995, Fischbach paid himself $10,000 and refunded the balance of the Grafs' deposit plus interest. Peter Graf testified at one point that he and his wife were back in the United States when the escrow account was closed, but he also testified that he did not return until November 1995. It is found both that the Grafs had not yet returned and that the Grafs still had not contacted Fischbach to object to his fee or to his intention to deduct $10,000 from escrow when Fischbach closed the escrow account. Peter Graf testified that he contacted Fischbach shortly after the Grafs returned to Florida to complain about Fischbach's fee and the deduction of $10,000 from the escrow refund. Fischbach testified that he heard nothing from the Grafs until approximately the middle of February 1996. Due to irreconcilable direct conflict in the testimony, it was not proven that the conversation occurred earlier than the end of January or early February 1996. Whenever their first conversation on the subject occurred, Graf told Fischbach there should not have been any fee since there was no closing, and Fischbach's response was that the Grafs had agreed to the fee. Fischbach thought that he was able to remind the Grafs of their fee agreement, again explain it to them, and thereby resolve their complaint. Fischbach wrote to the Grafs' attorney on February 26, 1996, in response to a telephone call from the attorney, in which the fairness of Fischbach's fee was questioned. In the letter Fischbach again explained in detail the agreement for the fee under which the Grafs actually still owed Fischbach another $17,000. Fischbach wrote that he saw no reason why he should have to give the Grafs any money back. Fischbach's letter also confirmed that the Grafs had approached Fischbach the preceding week to complain about the fee, but that Fischbach thought the matter had been discussed, explained and settled. The Grafs' attorney declined to take their case against Fischbach. He told the Grafs that as far as he was concerned, the dispute was "between you two." Later, the Grafs consulted a Louisiana attorney and requested that the attorney do "whatever was necessary." According to Peter Graf, the Louisiana attorney lodged a complaint with the Florida Real Estate Commission. Despite the evidence that the Grafs agreed to a $27,000 "consulting fee" for services rendered, they maintained that the fee should not be paid because there was no closing. Yet, the Grafs concede that Fischbach is entitled to something for his work, and they offered him $2,500 to $3,000. Fischbach, on his part, still maintains that he is owed another $17,000 but had not tried to collect it, he says, due to "embarrassment" about the dispute. He testified that it never occurred to him to return the $10,000 to escrow and have the Florida Real Estate Commission resolve the dispute and issue a disbursement order because he was not familiar with the procedure, not being very active in the brokerage of real estate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order dismissing the charges against the Respondent, Peter C. Fischbach. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 23rd day of March, 1999. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Suite N-308A 400 West Robinson Street Orlando, Florida 32801 Peter C. Fischbach 405 Central Avenue St. Petersburg, Florida 33701 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation Northood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
