Findings Of Fact At all times relevant hereto John Young was registered as a real estate salesman by the Florida Real Estate Commission. On October 2, 1985 Respondent and William Kelly, D.O. entered into a contract to jointly purchase a condominium from Concord Developers Inc. (Exhibit 1). The contract provided for a down payment of $2,000 with an additional earnest money deposit of $3690 to be paid on or before November 4, 1985. Respondent and Kelly each gave the seller a check for $1000 at the signing of the contract and this $2000 was deposited in escrow with the escrow agent. Kelly met Respondent through Respondent's wife who worked in Kelly's office. At the time Kelly was looking for income tax shelters and this purchase appeared to qualify for that purpose. On November 9, 1985, Kelly made out a check payable to John Young in the amount of $1845 which represented Kelly's half of the additional $3690 earnest money deposit. This check was either cashed by Young or deposited in Young's bank account (Exhibit 2). The additional earnest money deposit was not made to the seller, as required by the contract, Exhibit 1. Young notified Bayside Federal Savings and Loan Association, who was to finance the sale, that the loan application was withdrawn, the transaction was cancelled, and two checks in the amount of $1000 each were returned to the seller by the escrow agent (Exhibit 6). The customary practice of the seller in such a situation was to return the down payment to the buyer by check drawn on the seller's account. While no witness could recall this specific transaction, the usual practice would be to return the deposit to the buyer. In this case, the deposit would normally have been returned to Young. Young acknowledged that he received the return of his $1000 deposit but not the $1000 that represented Kelley's portion of the down payment. When Kelley gave Young the check for $1845 he inquired if it was necessary for him (Kelley) to attend the closing and Young advised him it was not. When Kelley subsequently learned that the transaction did not close, he demanded the return of his money. To date he has received none of the monies he deposited to purchase this property. Evidence was presented that in December 1985, Young closed on a condominium he and his wife had contracted to purchase in this same development, and subsequently moved into this unit. While this indicates Young had the opportunity to convert Kelley's contribution to the purchase of the condominium by Young and his wife, no credible evidence was presented that he did so. The evidence that was presented regarding this transaction was that Young was able to move into that unit with a total cash outlay of less than $500. Young accounted for the $1845 check from Kelley as payment of a bet between him and Kelley on one football game. In rebuttal Kelley testified that not only did he not bet with Young on any matter, but also he has never gambled on a football game in his life. Young's testimony that a $1845 bet was made on a football game is so unbelievable that it taints all of his testimony.
Recommendation That the Real Estate license of John Young be revoked. Entered this 2nd day of June, 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 2nd day of June, 1989. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Post Office Box 1900 Orlando, Florida 32801 Robert H. Dillinger, Esquire 5511 Central Avenue St. Petersburg, Florida 33701 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0729
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent was at all times material to this proceeding a licensed real estate broker in the state of Florida having been issued license number 0035275. The last license issued was as a broker, d/b/a Silver Springs Real Estate, Corp., 4121 East Silver Springs Boulevard, Ocala, Florida 32671. On or about August 3, 1984, the Respondent obtained Teri L. Lochman (Lochman) as a tenant of certain residential property belonging to Gail and Valerie Cox (Cox) that was involved in a sale to A. Pillot. In connection with this sale, a lease had been prepared between A. Pillot as Lessor and A. Alongi as Lessee. Lochman signed this lease as Lessee, and in connection with this lease, paid Respondent $1,600.00 representing $700.00 for the first month's rent, $700.00 for the last month's rent and $200.00 security deposit. These funds were paid by Lochman to Respondent in two separate checks in the amount of $500.00 and $1,100.00 dated August 5, 1984 and August 13, 1984, respectively. The Pillot/Cox escrow account, which had previously been established in Respondent's escrow ledger, was credited with these funds and the funds deposited in Respondent's real estate brokerage trust bank account, No. 805 0006583, in the Sun Bank of Ocala (Trust Account), on August 9, 1984 and August 17, 1984, respectively. Upon attempting to move into the home she had rented, Lochman discovered that Cox was still in possession because the sale had not gone through. At this point, August 17, 1984, Lochman and Cox signed an agreement which would allow Lochman to reside in the home rent free for two weeks while Cox was out of town in return for acting as a security guard. Sometime after the August 17, 1987 agreement was executed by Lochman and Cox, Lochman and Cox signed a handwritten month to month lease of the premises requiring Lochman to pay Cox $700.00 for the first month's rent, $700.00 for the last month's rent and a $200.00 damage deposit. This payment was conditioned upon Lochman receiving her refund from the Respondent. There was no credible evidence that Respondent agreed to release Cox from any previous agreement with Respondent wherein Respondent acted as agent for Cox in obtaining Lochman as a tenant or the handling of Cox's property, i.e. mowing grass or preparing house for rent. Additionally, there was no credible evidence that Respondent agreed to Lochman dealing directly with Cox. Respondent was at all times relevant to this proceeding acting as agent for Cox, and therefore, demanded from Cox her commission for obtaining Lochman as a tenant and reimbursement for other services rendered before returning Lochman's rental deposit. There is no credible evidence that the Respondent agreed to return Lochman's rental deposit without first obtaining her commission or reimbursement for other services rendered from Cox. There is no credible evidence to show that Cox paid Respondent her commission or reimbursed Respondent for other services rendered or that Cox made a demand on Respondent to pay the Lochman rental deposit to Lochman. There is credible evidence that Lochman made a demand on Respondent for the return of her rental deposit and that Respondent refused to return Lochman's rental deposit because there was a dispute between Respondent and Cox concerning Respondent's commission and reimbursement for other services rendered. Lochman did not pay Cox the rent for the month of September, 1984, therefore, she contends that Respondent only owes her $900.00 of the rental deposit. Upon Respondent's refusal to pay her the balance of the rental deposit, Lochman obtained a default judgment for $900.00 in civil court, however, and although the record is not clear, the default judgment may have been set aside. (See transcript, page 15, lines 9-13). The evidence is clear that check no. 257 drawn on the Trust Account in the amount of $1,465.00, paid on April 18, 1985, included $1,278.00 from the Pillot/Cox escrow account and depleted the funds in the Pillot/Cox escrow account. However, there was no evidence presented to show that the Lochman rental deposit was paid to Respondent. Likewise, there was no evidence presented to show that Cox did not receive the Lochman rental deposit. There was no evidence presented to show the payee on Check No. 257, or any other check, drawn on the Trust Account. There was no evidence presented to show that Respondent commingled trust funds and personal funds in the Trust Account in regard to deposits and withdrawals. There was insufficient credible evidence to show that Lochman was entitled to delivery of $900.00 or any funds from the Trust Account. There was no evidence that Respondent notified the Real Estate Commission (Commission) of the conflicting demands on the Lochman rental deposit or followed any of the procedures set forth in the statutes to resolve such a conflict.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Commission enter a Final Order finding the Respondent guilty of failing to notify the Commission of the conflicting demands on the trust funds and failing to follow the procedures set forth for resolving such conflict in violation of Section 475.25(1)(d), Florida Statutes and that Respondent's real estate broker's license be suspended for a period of six (6) months, stay the suspension, place the Respondent on probation for a period of six (6) months under the condition that the issue of conflicting demands on the trust funds be resolved within sixty (60) days and under any other conditions the Commission feels appropriate, and assess an administrative fine of $300.00 to be paid within sixty (60) days of the date of the Final Order. It is further RECOMMENDED that the Final Order DISMISS Counts I, III, IV and V of the Administrative Complaint filed herein. Respectfully submitted and entered this 1st day of May, 1987, 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 1st day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2387 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Finding of Fact 1. 3. Adopted in Findings of Fact 8 and 9. 4.5 Rejected as not supported by substantial competent evidence in the record. Additionally, Petitioner has treated certain facts in this case as background in unnumbered paragraphs which I have numbered 6-10. Adopted in Finding of Fact 2 as clarified. Adopted in Finding of Fact 4 except for the phrase that Respondent agreed to the return of the rental deposit which is rejected as not being supported by substantial competent evidence in the record. I did not find Lochman's testimony credible in this regard. Adopted in Findings of Fact 8 and 9 as clarified. Adopted in Finding of Fact 10 as clarified. This paragraph is a statement of Lochman's testimony and not presented as a fact, therefore, is rejected. Rulings on Proposed Findings of Fact Submitted by the Respondent For the reasons set forth in the Background portions of this Recommended Order, there has been no rulings of Respondent's Proposed Findings of Fact. COPIES FURNISHED: Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jeffrey J. Fitos, Esquire Valley Forge Military Academy Wayne, Pennsylvania 19087
Findings Of Fact Respondent is and at all material times has been a licensed real estate broker in the State of Florida. He holds license number 0404010. On or about October 14, 1985, Respondent, as seller, entered into a purchase and sale contract with William and Lois Ehmke, as buyers, with respect to Respondent's condominium known as Unit 502 of Blind Pass Lagoon Condominiums located at 9825 Harrell Avenue, Treasure Island, Florida. The Ehmke contract called for a purchase price of $85,000, which included $15,000 as an earnest money deposit. The contract form provided a paragraph for the closing date, but this was left blank. The only special clause in the contract provided that: The Buyer(s) shall pay $550.00 monthly beginning the date said unit is occupied by buyer and until buyers home in Deluth, Minn. is sold. At the time of closing upon Condo Unit 502, Phase 3, the buyers' shall reimburse the Seller the difference between $550.00 and actual costs to carry the unit per month. ($755.00 plus 90.00 maintenance, or $300.pr [i.e., $300 per month]. The Ehmkes duly paid Respondent the $15,000 deposit and moved into the condominium, which they occupied continuously from October, 1985, through December, 1986. The Ehmkes paid Respondent $550 per month for each month of their occupancy. When making the deal, the Ehmkes were aware that the average time that a house remained unsold on the market in Deluth was 210 days. They knew that the market was very slow because of a sluggish local economy. They expected their house to be sold in about 210 days. After 210 days passed and the house had not sold after the Ehmkes' good faith efforts to sell it, the Ehmkes asked Respondent to refund their $15,000 deposit. Respondent refused. Negotiations resulted in Respondent returning to the Ehmkes $10,000 of the deposit in July, 1987. Respondent did not stand in a confidential or fiduciary relationship with the Ehmkes. William Ehmke had owned and operated a restaurant in Deluth and, after meeting Respondent, initiated discussions with Respondent concerning Mr. Ehmke's desire to purchase property in Florida. Respondent showed the Ehmkes other properties and informed them from the start that Respondent and his daughter owned the condominium unit in question. The mortgage payments, insurance, taxes, and maintenance fees on the condominium unit were about $850 per month in October, 1985. During the period that the Ehmkes occupied the condominium unit, the maintenance fees went up by $30 per month and there was a $1200 special assessment. All of these expenses were borne by Respondent. However, Mr. Ehmke was aware that every month he was losing $300 of his deposit toward these expenses. The fair rental value of the condominium unit from December 1 through April 30 each year is $1400 to $1600 per month. By the time that the Ehmkes vacated the unit, Respondent had paid at least $3000 in monthly expenses over the rent received and the $1200 the special assessment. He had also lost at least $3000 in premium seasonal rentals. Mr. Ehmke has since received his real estate salesman's license. He admits that the $5000 retained by Respondent does not cover Respondent's out-of- pocket expenses. He also admits that he has no complaints about the transaction in retrospect. Frank Myles owns all of the stock of Myles, Inc., which owned Unit 202 of Blind Pass Lagoon Condominiums in Treasure Island. Having been neighbors with Respondent for two years and also involved part-time in real estate sales, Mr. Myles mentioned to Respondent that he was trying to sell his unit. After their conversation, Respondent delivered to Mr. Myles a contract for the purchase and sale of his unit. The contract was executed by all parties on July 29, 1986. The buyers were Ralph and Margaret Magno, who had recently purchased another unit in the same complex through Respondent as the broker. The purchase price was $94,000 to be paid cash at closing, as Mr. Myles had said he desired. The contract contained no contingencies, such as for financing, which was also consistent with Mr. Myles' previous instructions to Respondent. The contract called for a closing on or before August 25, 1986, and provided that time was of the essence. The Magnos paid an earnest money deposit of $8000 to Pat Jano and Associates, "reg. real estate broker." The form language of the contract provided that Respondent was to "hold said earnest money or deposit and act as escrow agent until closing of deal ..." The contract elsewhere provided that if the purchaser failed to perform any of his obligations, then he "shall forfeit said earnest money or deposit; and the same shall be retained by the Seller as liquidated damages, and the escrow agent is hereby authorized by the purchaser to pay over to the Seller the earnest money or deposit." In the event of a default by the purchaser, the earnest money would be divided equally between Respondent and the seller. On or about August 13 or 14, 1986, the Magnos discovered that the financing terms that they had arranged with a third-party lender could no longer be obtained. Respondent promptly notified Mr. Myles of the problem. Mr. Myles and Respondent tried unsuccessfully to resolve the problem with the lender, which ultimately declined to make the loan. When first informed of the buyers' financing problems, Mr. Myles told Respondent that the two of them should push the sellers through to closing. (Tr. 82.) Immediately after this conversation with Respondent, Mr. Myles stepped aside so that his lawyer could handle what had become a "shaky" deal. (Tr. 84.) On August 16, 1986, Respondent refunded all of the earnest money to the Magnos by delivering to Mr. Magno a check drawn on Respondent's escrow account in the amount of $8000 and payable to Mr. Magno. Respondent returned the deposit without the prior knowledge of Mr. Myles or consent of Myles, Inc. (Tr. 73 and 8.) Mr. Myles' lawyer sent a letter dated August 20, 1986, to Respondent informing him that Myles, Inc. intended to proceed to closing and would not consent to the release of the earnest money deposit to the Magnos. Mr. Myles appeared at the closing at the time and place specified in the contract. The Magnos did not appear. Myles, Inc. never received its share of the forfeited deposit. Myles, Inc., through Mr. Myles, stated in a letter dated May 13, 1987, that it was "no longer" pursuing any legal action against Respondent and that no suits were filed and no further action would be taken. During a lengthy meeting with Petitioner's investigator, Respondent never suggested that he had had Myles' permission to return the Magnos' deposit. Rather, he said only that he had returned the deposit out of "loyalty" to the Magnos. At the hearing, Respondent testified that he told Mr. Myles that Respondent was going to return the deposit to the Magnos and Mr. Myles' only reaction was that "those are the breaks." (Tr. 129.) This apparent inconsistency between the testimony of Mr. Myles and Respondent, both of whom were credible witnesses, is reconciled by the finding that Mr. Myles never consented to the release of the earnest money, but Respondent misunderstood their conversation in this regard. Since October 16, 1986, Respondent's principal place of business has been 7345 Bay Street, St. Petersburg, Florida. Respondent failed to maintain a sign at this location from October 16, 1986, through January 8, 1987. He was having a sign prepared by a third party during that time.
Recommendation Based on the foregoing, it is recommended that a final order be entered dismissing Counts I, II and IV of the Administrative Complaint and finding Respondent guilty of the allegations set forth in Counts III and V of the Administrative Complaint. It is recommended that the Final Order impose an administrative fine of $1000 with respect to Count III and a reprimand with respect to Count V. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4391 Treatment Accorded Petitioner's proposed Findings 1,3-5. Adopted. 2,6. Rejected as unnecessary and irrelevant. The location of Respondent's "principal office and each branch office" is relevant under Section 475.22 to determine where he was required to maintain a sign. The statute does not refer to the office registered with Petitioner. 7-8,16. Adopted. 9-.14. Adopted. 15,17. Rejected as unnecessary. 18. Rejected as unnecessary and irrelevant for the reason set forth for rejecting the proposed findings in paragraphs 2 and 6. Treatment Accorded Respondent's Proposed Findings Rejected as legal argument, except that Respondent and the Ehmkes entered into a contract. Last sentence - rejected as unnecessary and irrelevant. Remainder rejected as contrary to the greater weight of the evidence. Rejected as unnecessary, except that the blast sentence is adopted as to the sign being made. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Brian E. Johnson, Esquire 7190 Seminole Boulevard Seminole, Florida 34642 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue This case is presented in the form of an Administrative Complaint brought by the Petitioner against the Respondent. The Administrative Complaint, in its general terms, accuses the Respondent of improperly refunding deposit money to prospective purchasers of real estate in the face of a conflicting demand on that deposit money made by the prospective seller. These actions purportedly violate Subsection 475.25(1)(d), Florida Statutes.
Findings Of Fact Following the service of the Administrative Complaint discussed in the Issues statement to this Recommended Order, the Respondent indicated his disagreement with the matters set forth in that Administrative Complaint, to the extent of disputing allegations of fact contained in that document. In the face of this factual controversy, a Subsection 120.57(1), Florida Statutes, hearing was requested by the Respondent and the Petitioner forwarded the matter to the Division of Administrative Hearings for consideration. Subsequently, a formal hearing was held on January 28, 1982. In the course of the hearing, Petitioner presented two (2) witnesses, Ernest Olinger and Patsy N. Baucant. The Petitioner also offered three (3) items of evidence which were received. Respondent testified and offered two (2) items of evidence which were admitted. The petitioning agency is an agency of State government which has, among other functions, the licensure of real estate brokers and salesmen and the requirement to take disciplinary action when those brokers or salesmen are suspected of violating the regulatory provisions related to their right to operate as real estate salesmen and brokers. This duty on the part of the Petitioner forms the basis for the accusations placed against the Respondent. At all times pertinent to this Administrative Complaint, Respondent was licensed and continues to be licensed as a real estate broker, having been issued License No. 00085431 by the Board of Real Estate in the State of Florida. The address of record for the Respondent, which is on file with the petitioning agency is: c/o G. W. Stone, Inc., 1001 Fourth Street North, St. Petersburg, Florida. The Respondent maintains two offices, one at the 1001 Fourth Street North address and the other located at 14701 Gulf Boulevard, Madeira Beach, Florida. During the period in question by the Administrative Complaint, Respondent was a broker in charge of and operated from the office at Madeira Beach which is part of the corporate arrangement, G. W. Stone, Inc. Respondent was one of the member-brokers of G. W. Stone, Inc. Respondent's son, Robert D. Stone, was a broker in charge of and operated from the Fourth Street North office in the relevant period. On or about July 12, 1979, Ernest Olinger who was associated with G. W. Stone, Inc., in the position of real estate salesman, obtained a sales listing of a premises at 6823 Seventeenth Lane, North Meadow Lane, St. Petersburg, Florida, owned by one Patsy N. Baucant. At that time, Olinger was working out of the Fourth Street North office of the corporation. (Sometime between July 12, 1979, and October 9, 1979, Olinger was dismissed from this employment with that corporation and accepted a position with Bayfront Real Estate, Inc., in Pinellas County, Florida. Nonetheless, he continued to be associated with the Baucant listing.) On October 9, 1979, another salesman employed by G. W. Stone, Inc., negotiated and obtained a contract for purchase of the Baucant property by Val Etter and Rita Locke. The terms and conditions of that purchase may be found in the sales agreement and deposit receipt which is Petitioner's Exhibit No. 2, admitted into evidence. This contract was signed by Etter and Locke and the seller, Baucant; with R. Holmes Campbell, the real estate salesman who negotiated and obtained the contract, witnessing the Etter, Locke and Baucant signatures and Olinger witnessing the signature by Baucant. Etter and Locke paid $1,000.00 for earnest money deposit on account in contemplation of the purchase. By the terms of the contract, the property conveyance was contingent upon transferring to the "purchaser" the existing mortgage at Sun Bank and Trust Company of St. Petersburg, Florida, at the prevailing assumption rate. In keeping with this provision of the contract, both Locke and Etter applied for the assumption of the mortgage. Etter was approved and Locke was disapproved on the loan application. A copy of the loan disapproval related to Locke may be found as an attachment to Petitioner's Exhibit No. 1, admitted into evidence. Campbell then spoke to Olinger and advised Olinger that Locke and Etter had dissolved their living arrangement, which was an arrangement not based upon a formal marriage. Campbell also told Olinger that the closing of the property would have to be done in Etter's name, to the exclusion of Locke, and a closing date was established for November 30, 1979. Olinger went to the closing on the date scheduled and was the only individual in attendance. The property never was closed. Within a period of a few days following the scheduled date for closing, Baucant asked Olinger about the deposit money and was told that he did not handle those matters, in that it was not his function and that she should contact the Respondent. Baucant did in fact call the Respondent in the presence of Olinger. Baucant, in the course of that conversation, made known her desire to have the deposit money and asked what he intended doing with it. Stone's response was to the effect that at that time he, "did not know." Baucant called the Respondent a couple of days later and he indicated that he had given the money to Rita Locke. Stone had in fact returned the $1,000.00 earnest money deposit to Rita Locke by payment from the escrow account of G. W. Stone, Inc. This took place on December 7, 1979. A copy of that check may be found as Petitioner's Exhibit No. 3, admitted into evidence. When confronted with his reasoning for disbursing this money, Respondent indicated to Baucant that Locke and Etter had a personal argument. The money had been disbursed to Locke following demands by Etter and Locke made to Campbell who in turn advised the Respondent of the demand for refund of the earnest money. From the facts presented, it is determined that Stone disbursed the earnest money deposit to Locke at a time when he knew that Baucant had a competing claim on that deposit money. In the course of the hearing, Respondent denied that he had any conversation with Baucant concerning the topic of requests for the earnest money deposit in question. He made this denial on the basis of his failure to recollect such conversations. He did indicate that he had a policy to return deposits to prospective purchasers in circumstances such as set forth in the contract. In Stone's estimation, based upon what he knew of the matters, he returned the money to Locke because she was entitled to receive it.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Evon E. Brewton, is a licensed real estate broker/salesman whose license has been in an inactive (dormant) status for approximately one year. Respondent has been a resident of Bay County since approximately 1924. On March 29, 1978, Respondent assisted Mildred C. Webber, a real estate developer, in the search of property suitable for development purposes in Bay County, Florida. Such efforts led Respondent to seek out Walter 13. West, who had a parcel of property in Bay County that he desired a "quick sale". To accomplish such a sale, local T.V. advertisements were used. Respondent's efforts resulted in a contract between Mildred C. Webber and Walter B. West (Seller) for the purchase and sale of the West property for a purchase price of $115,500.00. Mr. West, the Seller, in unequivocal terms and conditions, made clear to Respondent that he was desirous of selling the property to the first purchaser who was able to tender an acceptable cash offer. Seller West also made clear to Respondent that all offers must contain a sizeable cash deposit to secure the property and which deposit he would consider forfeited provided the transaction failed to close. These conditions were made clear to Ms. Webber by Respondent and she agreed to place a $5,000.00 deposit in the form of a check which was turned over to the Seller. Mr. West accepted Ms. Webber's offer to purchase the property described as Parcel No. 1 for the price of $115,500.00. The $5,000.00 deposit check tendered by Ms. Webber was signed over to the Seller and was immediately negotiated by Mr. West. Also on March 29, 1978, Respondent secured a contract from Seller West for Ms. Webber to purchase a second parcel of property for which Ms. Webber placed a $500.00 earnest money deposit to secure the offer. Although Mr. West granted Ms. Webber two extensions of time to secure funds to finance the purchase of the two parcels of property, she was unable to secure financing to close the transaction. As a result, Seller West considered Ms. Webber's deposits to be forfeited and, accordingly, he retained the deposit monies. Real estate salesmen R. B. Ballard and J. K. Watts appeared and expressed their familiarity with the West/Webber real estate transactions. Witnesses Ballard and Watts corroborated the pertinent testimony of Respondent respecting the facts that prospective purchaser Webber understood Seller West's conditions and the resulting consequences should she be unable to secure financing to purchase the property. In this regard, testimony herein indicates that Ms. Webber, a knowledgeable real estate developers has not made any demands upon Mr. West to obtain a refund of the deposit monies, nor has any litigation been instituted by her to recover such deposit monies.
Recommendation Based on the foregoing Findings or Fact and Conclusions of Law, it is hereby RECOMMENDED: That the complaint allegations charging that Respondent violated Subsection 475.25(1)(a) and (i) Florida Statutes, be DISMISSED. RECOMMENDED this 3rd day of December, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1980.
Findings Of Fact The administratively complaint alleges that Respondent violated the provisions of Section 517,16(1)(a), F.S. by having sold notes, which were securities as defined by Section 517.02(1), F.S., which were unregistored in violation of Section 517.07, F.S., and having represented that said notes were secured by first mortgages when in fact they were not so secured in violation of Section 517.16(1)(d), F.S., on two occasions to Joseph M. and Patricia Barton. The first sale is alleged to have occurred on June 14, 1974, in the amount of $15,000, and the other sale is alleged to hake occurred on September 29, 1973 in the amount of $5,000. The Petitioner introduced Exhibit 1 which was received and which indicates that only the common stock of Equitable Development Corporation was registered with the State of Florida, Division of Securities. The Petitioner presented no evidence relative to the alleged sale occurring on June 14, 1974. It is therefore not proven. The Petitioner called Gregory Stevens who was the sole witness at the hearing and who was a license securities salesman and licensed mortgage broker. In September 1973 Stevens was self employed doing business for Gregory Stevens, Investment Incorporated. Stevens stated that he dealt in first mortgages. Respondent testified that he obtained the mortgage documents through Financial Resources Corp., the president of which was Mr. Rinehart. Respondent was assured by Mr. Rinehart before he began handling these mortgages that they were not required to be registered as securities because they ware exempt, and that the State had so indicated for this type of transaction. Respondent testified that he sold a note and mortgage to his clients, Joseph and Patricia Barton, in his capacity as a licensed mortgage broker on behalf of Gregory Stevens Investments, Inc., of which he is president. Exhibit 10 is a sample order form for another contract which shows that such transactions were in the corporate entity. Respondent's uncontroverted testimony was that only he individually is licensed to sell securities, and that no mortgages were sold as securities. The evidence is that on September 29, 1973, a promissory note of the Equitable Development Corporation was issued to Joseph and/or Patricia Barton, secured by a Mortgage Deed issued by Equitable Development Corporation. The face amount was $5,000. The Bartons also received a quitclaim deed. The mortgage deed specifically covenants that the underlying property is free and clear of all encumbrances except current and future real estate taxes. Respondent testified that he physically examined the property which secured the mortgages and it looked good. He saw appraisals at double the face amount of the mortgages he sold. Those clients who requested title insurance or opinions of title from a lawyer could obtain same, and when they were requested he saw then and they never showed any defects or other encumbrances. This was the procedure followed with the Bartons, although neither title insurance nor a title search and opinion were obtained requested by the Bartons. The Respondent indicated that at the time of said sale to the Bartons that he believed, and had no reason not to believe, that said mortgage was a first mortgage as it recites on its face. The Hearing Officer notes that Section 517.06(7), F.S., 1973, was amended effective October 1, 1973, and the Barton transaction took place on September 29, 1973. Therefore, the applicable provision is the unamended law found at Section 517.06(7), F.S.A. Regarding the law existing at the time and its interpretation, the Respondent also introduced Exhibit 2, 4, and 5 which letters indicate that the sale of notes secured by mortgages would be exempt from registration as exempt transactions pursuant to Section 517.06(7), F.S.A., and setting forth guidelines for exempt transactions. Without dealing with the question of estoppel, these exhibits state the agency's interpretations of the then existing law. The Hearing Officer finds the agency's interpretation as set out in Exhibits 2, 4, and 5 is an accurate interpretation of the statute. The Hearing Officer finds that a note is a security as defined in Section 517.02(1), F.S. Regarding the allegation that the note sold to the Bartons was an unregistered security, it is admitted that it was not registered, however, the Respondent asserts that the sale was a transaction exempted under the provisions of Section 517.06(7), F.S.A. Having examined the note and mortgage in question, the Hearing Officer finds that the note and entire mortgage securing it were sold in a single sale to one purchaser. The note and mortgage do not indicate any expressed recourse agreement or guarantee as to repayment of interest, principal, or both offered in connection with the sale. While the Respondent could not specifically recall the Barton transaction, he testified that purchasers were generally shown the property, an assessment of the property prepared by an appraiser indicating each lot's value, and it was represented that they would receive a first mortgage securing the note on lots worth two times the value of the note. There was no showing that the Respondent knew or should have known the mortgage to the Bartons was not a first mortgage and title to the property not clear. The transaction of September 29, 1973, was exempt under the law existing at that time. The Petitioner therefore has failed to show any violation of Section 517.16(1)(d), F.S.
Recommendation The agency having failed to show a violation of Section 517.16(1)(d), F.S., by the Respondent and the Hearing Officer having found that the September 29, 1973 transaction was exempt recommends that the charges be dismissed. DONE and ORDERED this 27th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred O. Drake, III, Esquire Counsel for Petitioner Charles W. Musgrove, Esquire Counsel for Respondent
Findings Of Fact The Florida Real Estate Commission presented evidence of the service of the Notice of Hearing upon Madison B. Graves, Esquire, 612 East Carson, Las Vegas, Nevada, 89101, as Counsel for Barbara Orcutt, by certified mail return receipt requested. Barbara Orcutt is presently a non-active broker; however, Barbara Orcutt was at the time in question in the Administrative Complaint a registered real estate broker with Gold Palm Realty Corporation, 1701 S. Federal Hwy., Boca Raton, Florida, 33632. Sigurd N. Hersloff was the owner of real estate described as 819 Lake Drive, Boca Raton, Florida. Hersloff contacted Jacqueline M. Winter, an associate broker with Gold Palm Realty, and advised her of his intent to sell said real property. Winter, in turn, mentioned the fact that Hersloff desired to sell his home to the Respondent, Barbara Orcutt. Orcutt stated to Winter that she (Orcutt) knew of a potential buyer for Hersloff's real property. David F. Young was advised by Orcutt of the availability for purchase of Hersloff's real property. Orcutt showed Hersloff's property to David F. Young, and subsequently David F. Young made an offer for purchase of Hersloff's real property for a purchase price of $76,200 putting up a $500 earnest money deposit. This proposal was presented to Hersloff in the presence of Winter. Hersloff was concerned and annoyed that Orcutt had received only $500 as an earnest money deposit. Hersloff told Orcutt that he did not consider $500 earnest money deposit sufficient compensation for taking his property off the market and advised Orcutt that Young would have to pay a full 10 percent of the $76,200 purchase price as earnest money deposit. Orcutt advised Hersloff that Young could not pay an earnest money deposit. Hersloff advised Orcutt that if Young could not pay the $7,620 earnest money deposit that he would accept a promissory note for the difference between the $500 and the $7,620. Orcutt left Hersloff and Winter presumably to return to Young to present Hersloff's objection to the contract for purchase. Orcutt later returned and spoke with Hersloff and Winter. She represented to Hersloff and Winter that she had obtained a promissory note from Young made out to Gold Palm Realty Corp. and that same would be deposited in Gold Palm Realty Corporation's escrow account together with Young's $500 earnest money deposit. Upon this representation Hersloff executed the contract for purchase presented by Orcutt in Young's behalf. The contract for purchase provided in part that Hersloff was to hold a second mortgage in the amount of $15,000 for a period of four months from the date of closing, said second mortgage to bear no interest. Young, who was in the process of selling real property in another state, became concerned that he might not be able to repay the second mortgage to Hersloff within the four months as stated in the contract. He spoke with Orcutt and asked her if she could obtain an extension of two months within which to pay the second mortgage. Orcutt represented to Young at that time that she did not anticipate that Hersloff would have any objection to such an extension. Subsequently in a conversation between Hersloff and Young, Hersloff determined that contrary to Orcutt's representation, she had not obtained a promissory note from Young. Young, at that time, learned that Orcutt had not mentioned a possible extension of the mortgage to Hersloff. On November 11, 1974, the Parties closed the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Barbara Orcutt as a non- active broker be suspended for a period of two years. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Madison B. Graves, Esquire 612 East Carson Las Vegas, Nevada 89101
The Issue Whether Respondent's license under Chapter 509, Florida Statutes, should be suspended or revoked, or a civil penalty imposed for alleged violation of Section 83.49(2) and (3) , Florida Statutes, as set forth in Notice to Show Cause. Respondent Glyn G. Dean appeared at the hearing unaccompanied by legal counsel and he was thereafter advised of his rights as a respondent in an administrative proceeding. He indicated that he understood such rights and desired to represent himself at the hearing.
Findings Of Fact Respondent Glyn G. Dean owns and operates the Elegante Apartments, a five-unit apartment building located at 1040 NE 78th Road, Miami, Florida. Respondent holds a license issued by Petitioner to operate a public lodging establishment pursuant to the provisions of Chapter 509, Florida Statutes. (Testimony of Dean, Teller) On January 28, 1978, Respondent rented Apartment 2 to George Tulloch and his wife on a weekly basis. Thereafter on April 1, 1978, Respondent and Tulloch entered into a lease of the apartment for a period of one year at a rental of $275 per month, including $25 a month as a "damage deposit." The lease provided that the lessee would pay for the cost of repairing all damage to the apartment caused by himself or his family and the cost of removing foreign substances from toilets and sinks. At no time did Respondent inform the lessee as to the manner in which he would hold the payments representing security deposits. Payments in the amount of $275 were made by Tulloch each month from April through October 1978. Thereafter, Tulloch paid as follows: November 30, 1978 - $250.00 December 8, 1978 - 80.00 December 24, 1978 - 50.00 January 23, 1979 - 170.00 February 19, 1979 - 75.00 March 10, 1979 - 100.00 (Testimony of B. Tulloch, Respondent, Respondent's Exhibits 1-2, Petitioner's Exhibit 1) In October 1978, there was a ceiling leak in the apartment which caused a bedroom and kitchen to sustain water damage. A section of the kitchen ceiling also fell and struck Mr. Tulloch who later instituted a claim against Respondent under the latter's insurance policy. (Testimony of Tulloch, Dean, supplemented by Respondent's Exhibit 4) The lessee vacated the apartment at the expiration of the lease on March 31, 1979. At that time, he did not provide Respondent with a forwarding address and it was not until late May that Respondent learned of the same. He thereafter sent a certified letter of his intention to make claim against the security deposit which was received by the lessee on May 28, 1979. He sent a further letter of June 22, 1979, which listed various costs for cleaning and damage to the apartment and reflected that after application of a total of $175 representing deposit payments made during the course of the year, Respondent was due $153 from Tulloch. After termination of the lease, she tenant paid Respondent $650 representing back rent due under the lease. Mrs. Tulloch denied at the hearing that she and her husband had caused any damage to the apartment. (Testimony of Dean, B. Tulloch, Petitioner's Exhibits 3-4, Respondent's Exhibit 3)
Recommendation That Petitioner impose an administrative fine of $100 against Respondent Glyn G. Dean pursuant to Sections 83.49(7) and 509.261(2), Florida Statutes, for violation of Section 83.49(2), Florida Statutes. DONE and ENTERED this 13th day of November, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dan Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Glyn G. Dean 1040 NE 78th Road Miami, Florida 33138 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATIONS DIVISIONS OF HOTELS AND RESTAURANTS DIVISION OF HOTELS & RESTAURANTS, DEPARTMENT OF BUSINESS REGULATION, Petitioner, vs. CASE NO. 79-1625 H & R No. 23-1935H-3778 GLYN G. DEAN AND GRADY WILSON t/a ELEGANTE APARTMENTS, Respondent. /
Findings Of Fact By contract dated March 13, 1974 Frederick W. and Judith P. Shaw placed $500 as earnest money to purchase property from Comfort Builders, Inc. represented by Giles Realty. The $500 was duly placed in escrow. The contract provided that seller would furnish title insurance and buyer could take posession on April 1, 1974. Buyer occupied the house as per the contract and delayed the initially intended closing to require the builder (seller) to correct defects. Shortly after the contract was executed buyer paid seller an additional $3,000 of the purchase money. This payment did not go through Giles. At the first closing session on May 15, 1974 a subcontractor's lien was discovered and the closing did not occur. At a second scheduled closing additional liens against the property were discovered. The $500 check representing buyers' deposit that had been forwarded by Giles to First Federal Savings and Loan Association, who was to loan the mortgage money, was returned to Giles by letter of October 10, 1974 advising that they were unable to make the mortgage. Subsequently the bank, which had also provided the construction mortgage money, foreclosed on the mortgage and took title to the property. Thereafter on March 21, 1975 the bank sold the property to Shaw who had occupied the premises since April, 1974. After the property had been conveyed by the bank to Shaw, Giles prepared a Release of Deposit Receipt which was executed by Comfort Builders, Inc., the original seller, to allow the $500 deposit to be retained by Giles. When asked to execute this release Shaw declined. Whether Giles told Shaw that she had asked the FREC for an advisory opinion respecting the $500 as Shaw testified or only that she would ask for an advisory opinion as testified to by Giles is immaterial as no advisory opinion was requested by Giles. Thereafter Shaw filed a complaint with FREC which led to the charges here under consideration. When this complaint was being investigated by Kimmig, Giles asked Kimmig for an advisory opinion and she was told she would have to request same from the Commission. Several years earlier Giles had obtained an advisory opinion by submitting a written request to the Commission, but no such request was submitted by Giles respecting the disposition of the $500 deposit of Shaw. The $500 has not been disbursed from the escrow account. Mrs. Giles has been registered with the FREC for some 20 years and these are the first disciplinary proceedings ever brought against her. Exhibit 10 contains numerous achievements and recognitions received by Mrs. Giles showing an excellent reputation in the community.
Findings Of Fact At the time of this hearing, and at all times pertinent to the allegations of the administrative complaint, Concannon was registered with FREC as a real estate broker holding license certificate No. 0016471. On March 31, 1978, a contract for sale and purchase of certain realty was executed by Mark and Barbara Casto as sellers and Samuel and Louise Theriault as buyers. The contract provided that Concannon was to hold deposit monies in escrow. The deposit was to be made in three (3) installments of $100.00 on March 31, 1978 $400.00 by April 30, 1978, and $500.00 by May 30, 1978, for a total cash deposit of $1,000.00. Further cash payment on closing was to be made in the approximate amount of $8,700.00. The buyers made the first two payments in accordance with the contract for sale and purchase and Concannon retained the sum of the two payments, $500.00, in his escrow account until the transaction ultimately closed. The $500.00 payment due by May 30, 1978, was never made. On May 10 1978, buyers and sellers executed an addendum to the original contract which addendum provided that the buyers would convey two real estate lets to the sellers in part payment for the real estate covered in the original contract, at a value of $2,500.00. At the time the addendum to contract was executed, the interests of the sellers were being represented by Mr. John H. Cumiskey, who was on associate of New Century Realty, the listing broker for the subject property. Concannon, through the offices of Century 21 realty, was the selling broker participating in a multiple listing opportunity. At about this time, the buyers appeared to be having difficulty in securing sufficient cash to close the transaction as originally written. To help alleviate the situation, the addendum was made and in addition, 95 percent financing was obtained so that cash requirements were further reduced. Prior to closing, the lots which were the subject of the addendum were actually sold to another party and the proceeds from that sale were placed in Cumiskey's escrow account. Because of the financial problems which were being encountered, there was some concern on the part of the seller, the listing broker, and the selling broker, that the transaction might not close. Cumiskey offered to take over the transaction in order to smooth it out and to ensure that all want as planned. Concannon agreed to this arrangement, but no change was made in the contract for sale and purchase or its addendum reflecting a change of responsibility for escrow deposits. Subsequently, May 30, 1978, came and went without the final deposit payment of $500.00 being made by the buyers. Cumiskey erroneously assumed that the final deposit had been made with Concannon. Meanwhile, Concannon having been assured by Cumiskey that all necessary funds for closing had been secured, erroneously assumed that the final $500.00 had been paid to Cumiskey. At no time did Concannon seek to verify whether the final payment was made nor did he inform the sellers of the status of that payment. Rather, the nonpayment of the final deposit was not brought to the sellers' attention until the day scheduled for closing, June 15, 1978. On that date, the buyers were presented with a statement reflecting the amount of cash they would be required to produce at the closing. The statement includes a notation that an additional deposit of $500.00 is required. On learning of this, the buyers claimed not to have the additional $500.00 and refused to close unless the price for the property was reduced by a like amount. Cumiskey advised the sellers of the buyers' position and the sellers agreed to reduce their selling price by $500.00. On this basis the transaction subsequently closed. There was no evidence upon which to base a finding that Concannon was guilty of intentional wrong doing.
