The Issue The issue at the hearing was whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the real estate brokerage business. Petitioner's principal office is located in Niceville, Florida. Petitioner's business does not employ more than twenty- five (25) full-time employees and has a net worth not exceeding $2,000,000.00. In DOAH Case No. 88-3758, the Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint dated June 23, 1988. The Administrative Complaint alleged that the Petitioner was guilty of having failed to account and deliver to any person at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, deposit, draft or other documents or things of value, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain, under the circumstances in violation of Subsection 475.25(1)(d), Florida Statutes. The facts allegedly supporting the Administrative Complaint were Petitioner's failure, after entry of a County Court Judgment, to return a sum of money to the potential buyers of Petitioner's own house. The money was received by Petitioner and retained by Petitioner in a transaction involving the sale of his own home. The transaction did not involve Petitioner as a broker and did not involve Petitioner as an escrow agent. The escrow agent specified in the contract was another real estate company. The Administrative Complaint was based on the Board's determination of probable cause at its meeting on June 21, 1988. At that meeting, Mr. Fred Wilson, Chief Staff attorney for the Division of Real Estate, presented the case to the probable cause panel. The presentation of the case was wholly based on the investigative file developed by DPR's investigator. A review of that investigative file and the transcript of the probable cause proceeding does not support a finding of probable cause in this case. In order to support such a finding, the evidence considered by the Board must disclose that there is a reasonable basis in law and fact for the agency to proceed with its intended action. In this case, The agency's intended action was to clearly and convincingly establish that the licensee failed to account and deliver escrowed property to the person entitled to such property in violation of Section 475.25(1)(d), Florida Statutes and in light of the controlling law in this area as set forth in Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). It is clear that from the inception of these proceedings, the facts which drove the prosecution of this case were that a sale of real property was involved along with an unpaid civil court judgment and a buyer's check with the words "house down payment" written in the space for memos on the check. The investigative report did not contain any facts supporting an escrow between Petitioner and his potential buyers. Nor, did the report contain any facts which established that Petitioner acted as a real estate broker in the transaction involving his house. The investigative report seems to be more concerned with collection of the judgment debt than with ascertaining facts crucial to the determination of a violation in this case. As such, the Division did not have a reasonable basis in law and fact at the time it initiated the action against Petitioner and therefore said proceeding was not substantially justified. After hearing, a Recommended Order was entered on April 11, 1989, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that the Petitioner, Nevin H. Nordal, was acting as the seller of his own property and not as a broker in the transaction in question and that the sum of money received by the Petitioner was not properly escrowable property. Additionally, the recommendation was based on conclusions of law that Subsection 475.25(1)(d), Florida Statutes, the subsection under which the Petitioner was charged, only applies when escrowed property is involved and is not applicable in instances where a real estate broker is acting as the seller of his own real property unless the contract for sale establishes the seller/broker as the escrow agent, citing Fleischman. Other types of contractual disputes, whether involving personal real estate transactions by a licensee or not, may not be enforced by disciplinary action undertaken by a regulatory agency. The fact that a judgment had been rendered against the Petitioner by the civil court does not, by itself, make a contractual dispute actionable by a regulatory agency since such a judgment was nothing more than a debt similar to any debt owed to a bank or a department store. Mere refusal to pay such debts is not a ground for discipline under Chapter 475. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation contained in the Recommended Order and dismissed the Administrative Complaint on May 16, 1989. The Petition for Attorney's Fees and Costs pursuant to Rule 22I-6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, subsequently filed was timely, having been filed within sixty days (60) after the date on which the Petitioner became a prevailing small business party. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,160.00 and costs in the amount of $505.65 in DOAH Case NO. 88-3758. These fees and costs are reasonable. At the Final Hearing in this cause, Petitioner's attorney filed an Affidavit as to Additional Fees and Costs incurred by Petitioner in the preparation for and litigation of Petitioner's entitlement to an award of attorney's fees and costs under Section 57.111, Florida Statutes. Said Affidavit stated the additional attorney's fees incurred as $530.00 and the additional costs as $15.40. The additional fees and costs are reasonable. No evidence was presented that demonstrated the presence of any special circumstances which would make an award of attorney's fees and costs unjust in this case. Petitioner is entitled to an award of attorney's fees in the amount of $5,690.00 and costs in the amount of $521.05 for a total amount of $6,211.05 due to Petitioner from Respondent.
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violation of Sections 475.25(1)(a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florid Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent Alfred Landin is now a registered real estate salesman and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 7).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwim who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James R. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for its. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to ,sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that thee property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowners Service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, In fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel, Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent Alfred Landin be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J.R. Parkinson, Esquire and Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Stanley M. Ersoff, Esquire 1439 West Flagler Street Miami, Florida 33135
Findings Of Fact On February 27, 1974, Pelle J. Lindquist contracted with Patrick G. Yeager to build a house on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 1. The contract called for work to begin on March 1, 1974, and to be completed within 90 days. Work did not begin on March 1, 1974, but did begin in the latter half of March, 1974. Frequent rain in March, 1974, caused the roof to warp, so that it had to be replaced. After considerable delay in undertaking the repair, actually replacing the roof took only about a week. Replacing the roof added significantly to respondent's costs in performing under the contract. Eleven months after construction began, Mr. Yeager moved in. Because the kitchen and both bathrooms lacked wallpaper, and because the gravel yard was partly unfinished, respondent Lindquist paid Mr. Yeager $300.00, in exchange for which Mr. Yeager released Mr. Lindquist from all liability in connection with the house. The release was admitted in evidence as respondent's Exhibit No. 1. In the course of construction, Haven Vaughn, a sub- contracting carpenter, filed a notice of intent to lien on behalf of himself and his partner, Cal Fisher. As long as Mr. Lindquist was allowed draws on the construction loan, Messrs. Vaughn and Fisher were paid regularly. For reasons which were not developed in the evidence, the lender withheld part of the loan proceeds from respondent. When the draws stopped, the carpenters were not paid, and they stopped work on the Yeager house. The lender ultimately paid the carpenters in full. At the time Mr. Yeager contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron, a real estate broker who introduced Mr. Lindquist to Mr. Yeager. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee upon "obtaining last draw from lending firm." The brokerage fee has not been paid and is currently the subject of civil litigation. On February 15, 1974, Mr. and Mrs. Horace N. Smith, Jr., contracted with respondent for the construction of a house on another lot on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 2. The contract called for completion of the Smith house on or about June 15, 1974. After the contract was signed, the Smiths returned to New Jersey, entrusting oversight of the project to Mr. Cameron, a real estate broker who introduced Mr. Lindquist to the Smiths. As construction progressed, Mr. Cameron kept Mrs. Smith advised, and she mailed installment payments on the strength of Mr. Cameron's representations. In this fashion, Mr. Lindquist was paid 75 percent of the total contract price of $27,600.00. For reasons which were not developed in the evidence, the Smiths stopped payments under the contract, presumably at Mr. Cameron's suggestion. When the payments stopped, work on the house also stopped, and, during the ensuing hiatus in construction, vandals broke a glass door, scrawled obscenities on the walls, scraped the walls, damaged the outside doors, and ruined the wooden trim. Work had fallen far behind schedule when, in April of 1975, a lawyer retained by Mr. and Mrs. Smith wrote Mr. Lindquist to the effect that the Smiths would take over the project unless it was finished within a week. When the week had passed, the Smiths began dealing directly with the sub-contractors, the house was eventually completed at a total cost to the Smiths of $29,100.00, or $1,500.00 more than the Smiths had agreed to pay Mr. Lindquist for the job. As completed, the house lacked an electric garage door opener and a sprinkler system which Mrs. Smith guessed would cost $1,000.00, but no competent evidence as to the cost or value of either the door opener or the sprinkler system was adduced. Vandalism added significantly to the cost of the Smith house. Mr. Lindquist replaced a glass door broken by vandals. On account of the vandalism, the Smiths paid the carpenters an additional $300.00 for their labor. The front doors, the trim, and all bays had to be replaced; the cost of replacement materials was not established. At the time Mr. and Mrs. Smith contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee. The brokerage fee has not been paid and is currently the subject of civil litigation. Certified general contractors' licenses are renewable annually in June, pursuant to Section 468.108, Florida Statutes (1975). Mr. Lindquist had such a license for 1974-75. In June of 1975, he desired to renew his license, but in a fashion which would authorize him to contract on behalf of a corporation, rather than as an individual. He telephoned the Jacksonville office of the Florida Construction Industry Licensing Board and explained his situation. That office mailed him forms which he filled out and mailed back in June of 1975. In March of 1976, some nine months later, the completed forms were mailed back to respondent, but no license was issued. On March 22, 1976, Mr. Clyde Pirtle, an investigator employed in the Jacksonville office of the Florida construction Industry Licensing Board, filled out and mailed to respondent a Notice of Violation," notifying respondent that he had failed to renew his certificate during June of 1975. The same "Notice of Violation" advised respondent of his putative failure to notify the Florida Construction Industry Licensing Board of his new address, although his application papers for the 1975-76 license had been returned to the new address. On the Monday after the Friday on which respondent received the "Notice of Violation," he telephoned Mr. Pirtle's office and was told that Mr. Pirtle would contact him. On or about June 3, 1976, Mr. Pirtle did contact respondent and meet with him. At this meeting, respondent showed Mr. Pirtle the papers he had mailed to the Board in June of 1975, and which were returned to him unprocessed in March of 1976. Mr. Pirtle told respondent that the papers had been returned because the application forms were for a registered, and not for a certified, contractor's license, and furnished respondent another set of forms. Respondent filled out the new set of forms and mailed them to the Board in June of 1976. A month and a half before the hearing in this cause, respondent received 1976-1977 certified general contractor's license No. CGC007702, which is currently in force. No contractor's license for 1975-76 was ever issued to respondent. On May 3, 1976, respondent applied for and was issued a building permit to erect a new residence at 1623 Anniston Avenue in the City of Holly Hill. At that time, respondent had no current contractor's license and presented to the authorities a license which had expired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that disciplinary action against Respondent, if any, be limited to a reprimand. DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Thomas L. West, Esquire Post Office Box 1857 1030 Volusia Avenue Daytona Beach, Florida 32015 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact Prestige Realty, Inc. and Anthony C. Cappello were at all times here relevant registered with the FREC as alleged. Mrs. Cappello, wife of Respondent, is a salesperson with Prestige Realty, Inc. Prestige Realty, Inc. is an Electronics Realty Associates (ERA) franchisee and actively promotes the ERA Homeowners warranty Plan which will, for a fee, warrant to pay for repairs to structure and equipment within the first year of purchase all costs over the minimum for which the policy is written. While showing prospective purchasers William and Dora Keys various properties, Mrs. Cappello told them about the ERA Buyers Protection Plan (BPP) and the Keys expressed an interest in having same, particularly if the seller would pay for it. Mrs.. Cappello has worked with the Keys for several months showing them various properties for sale. Thomas Hanrahan listed his home for sale with B & M Real Estate as listing agent at a price of $52,000 on 31 January 1977. On April 28, 1977 Mrs. Cappello obtained an offer from William and Dora Keys to purchase Hanrahan's house for $49,000. Keys had inherited some money, and after seeing the Hanrahan house which they liked, made an offer to purchase the property for $49,000 including the drapes and BPP. Inclusion of the BPP in the offer was suggested by Respondent Cappello and/or Mrs. Cappello. The fact that an offer had been received was communicated to the listing salesperson and the listing agent met the Cappellos to present the offer to Hanrahan. Respondent Cappello, who had accompanied his wife to present the offer, first discussed the contract conditions, including drapes and BPP, before revealing the offering price to Hanrahan and the listing broker's agent. When Respondent revealed the $240 premium for BPP Hanrahan remarked it was a "rip- off"; however, Respondent Cappello emphasized that the seller shouldn't mind paying this premium if the selling price of the home is right. After obtaining Hanrahan's agreement to the BPP "if the price is right', Respondent disclosed the offering price of $49,000. Hanrahan refused this offer and made a counter offer of $51,000, which was communicated to the buyers who re-countered with a $50,000 offer. At no time during these negotiations did Respondents advise Hanrahan that Prestige Realty would receive 25 percent of the premium the contract provided the seller would pay for the ERA BPP. Of the $240 premium paid for the BPP, $C0 was retained by Respondent, Prestige Realty, and the remaining $180 was forwarded to ERA. When the offer of $50,000 was presented to Hanrahan by Respondent Cappello, it was represented to be the buyers' final offer, that the ERA BPP was an essential element of the offer, and if not accepted by the seller they would find the buyers another house. The Keys never insisted to Cappello that the BPP be included in their offer, and both William and Dora Keys testified they would have paid $50,000 for the Hanrahan home without the BPP. Attempts by Hanrahan to share the cost of BPP with the buyers or discourage their insistence upon having this policy provided were rebuffed by Respondents. Following the closing the Keys were offered the option of taking a lower deductible on the BPP than $100, but after being advised the additional cost to them for a lower deductible, it was declined. Respondents and other ERA franchisees consider the BPP to be a good selling tool in the conduct of their business. In addition to the BPP, ERA offers a sellers protection plan which, if the seller lists his house with an ERA franchisee and agrees to pay for a BPP when the house is sold, will insure the seller from failure of certain equipment (less a deductible) during the period the house is listed before sale.
Findings Of Fact Since 1970 respondent Harold A. Hecklinger has been a stockholder in Farrell-Cheek Steel Company, a Delaware corporation with headquarters in Ohio. Respondent is on the board of directors of Farrell-Cheek Steel Company, is secretary of the corporation, and is the company's designated agent for service of process in Florida. Until 1973 or 1974, respondent was the only officer of Farrell-Cheek Steel Company in Florida. He is the general manager of Florida Diversified Properties, a division of Farrell-Cheek Steel Company. In this capacity, he manages Gulf Gate Mall, a shopping center in Sarasota, Florida, owned by Farrell-Cheek Steel Company. Respondent hires and supervises the mall employees, handles the mall's bills, collects rent from storekeepers and negotiates leases with storekeepers for space in the Gulf Gate Mall. He negotiated one such lease with Robert E. Peters, doing business as Koin Kleen Laundry; and another with Freedom Enterprise, Inc., doing business as Mr. Freedom-Boutique. On June 14, 1973, respondent submitted an application for registration as a real estate salesman to petitioner. The application consisted of a form supplied by petitioner and filled out by respondent. A certified copy came in evidence as petitioner's exhibit No. 1. Question No. 12(a) has been omitted from petitioner's exhibit No. 1, but presumably asks the applicant to list business addresses and employment for the five years next preceding the filing of the application. Respondent's answer to question No. 12(a) does appear on petitioner's exhibit No. 1 and reads, in part, as follows: Sarasota Post Office Box 2440 Florida 1972-73 General Mgr. Florida Diversified Properties Question No. 18(a), which respondent answered with the word "No," reads, as follows: Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate broker, within one year next prior to the filing of this application? Question No. 18(b), which respondent answered with the word "No," reads, as follows: Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so? Respondent has an excellent reputation for truth and veracity. In filling out his application form, he intended to answer each question truthfully.
Recommendation For the foregoing reasons, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 27th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Daniel A. Carlton, Esquire Post Office Box 3979 Sarasota, Florida 33578
Findings Of Fact Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated: At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation. First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving, setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000. On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission: This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976. I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ". * * * We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available. On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret. Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. COPIES FURNISHED: Kenneth M. Meer, Esquire 400 West Robinson Avenue Orlando, Florida 32801 Mr. George W. Pinkerton 2833 East Highway 92 Lakeland, Florida 33801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-2292 GEORGE W. PINKERTON, Respondent. /
The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact At all material times, the Respondent Tremone Rudman was an active real estate salesman having been issued license number, 0201202. The Respondent Rudman was employed by Fantastic Properties, Inc., as a salesman from February 6, 1979 until September 6, 1979. The broker and owner of Fantastic Properties, Inc., from February 6, 1979 through September 6, 1979, was Elaine Mueller. In July 1979, the Respondent Rudman negotiated a contract between Barbara Medema, seller, and Eugene and LaLita Mascarenhas, buyers, for two separate parcels of property described as Lot 14, Block Y, Coral Springs Subdivision Number 1 (parcel number 1) and Lot 13, Block Y, Coral Springs Subdivision Number 1 (parcel number 2). The transaction involving the properties was scheduled to close on November 12, 1979, at Taylor Title and Abstract in Sunrise, Florida. At the time of the closing, the Respondent Rudman and Elaine Mueller had terminated their business relationship due to personal differences. The Respondent was concerned that he would not receive his share of the Mascarenhas commission because of difficulties he was having collecting his share of other commissions from Mueller. In response to his actual or perceived difficulties in obtaining pending commissions, the Respondent Rudman made demands upon Mueller, his broker, and Pat Taylor, the title agent handling the closing, to disburse the Respondent's portion of the Mascarenhas commission directly to him rather than through the broker at closing. The closing, which occurred on November 12, 1979, was difficult and lasted long into the afternoon. During the course of the closing the Respondent placed calls to Taylor Title Company to ascertain when he could pick up his commission check. Elaine Mueller indicated to Taylor that the proper procedure should be that the check would be made payable to Fantastic Properties, Inc., as the broker, and that Fantastic Properties would then write a check to the Respondent, as the salesman. The procedure suggested to Taylor was not acceptable to the Respondent due to his belief that Mueller might delay his check. The Respondent contacted his attorney, David Hoines, and instructed him to demand that the commission check be issued directly to the Respondent. On November 12, 1979, at approximately 5:30 p.m., Hoines called Taylor Title Company, and in conversation with Mueller and Taylor, demanded that the commission check in question be paid directly to the Respondent per his client's request. Both Mueller and Taylor expressed apprehension concerning such a procedure and advised Hoines that in their opinion, they could not legally issue a commission check directly to the Respondent, a salesman. Hoines reiterated his demand on behalf of his client and threatened to institute legal proceedings which could stop the closing and/or create problems for both the buyer and the seller. Hoines indicated to Taylor that he had the means at his disposal to bring the closing to a halt if the commission check was not distributed to his client as he demanded. When Taylor inquired concerning what those means were, Hoines refused to elaborate. Hoines acknowledged that he had specifically made reference to a declaratory judgment action and in that sense, threatened legal action. He also stated that he ignored the statements made to him by Mueller and Taylor that the procedure he demanded that they follow was illegal. As a consequence of the actions taken by the Respondent Rudman and his attorney at his initiation, Mueller was placed in an untenable position. On one hand, Mueller was threatened with legal action if she did not pay the commission to the Respondent and on the other, she knew that if the closing did not take place that day, it would probably never occur since the outstanding mortgages on the two parcels were months in arrears. Mueller's problems with the mortgages on the property were also known to the Respondent when he and his attorney demanded the commission check. Mueller objected to issuing a check to the Respondent but was concerned that withholding the check could result in stopping the closing as a result of the threatened legal proceedings. Under such circumstances, Mueller did not voluntarily consent to the issuance of the check to the Respondent. As characterized by counsel for Petitioner, Mueller "acquiesced" rather than risk the possibility that the Respondent or his attorney would initiate action which could have affected the sale. Thus, the "consent" given by Mueller was under protest, the result of coercion and was not free and voluntary. As a result of Respondent's demands, Pat Taylor contacted her attorney, Mr. Finn, who instructed her to type the document dated November 13, 1979, Petitioner's Exhibit 10. Mueller did not see this document nor did she assist in its preparation. On November 13, 1979, Taylor presented the document, together with a check for the Respondent's share of the commission to Respondent at his office. The Respondent accepted the check which was made payable to "Tremone Rudman". The Respondent then signed the document and added, "I do not agree to the foregoing." The Respondent subsequently negotiated the check. The Respondent Rudman acknowledged that he was not collecting on behalf of the broker with whom he was employed when he received this commission, nor did he collect the funds on behalf of Fantastic Properties, Inc., for whom he was no longer employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order finding the Respondent Rudman guilty of violating Sections 475.25(1)(b) and 475.42(1)(b) and (d), Florida Statutes (1979), and suspending his real estate salesman's license for ninety (90) days. DONE and ORDERED this 2nd day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of March, 1983. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Richard H. Adams, Jr., Esquire Carlos B. Stafford, Executive PLEUS ADAMS FASSETT & DIVINE Director 220 North Palmetto Avenue Florida Real Estate Commission Post Office Box 2747 Post Office Box 1900 Orlando, Florida 32802 Orlando, Florida 32802 William M. Furlow, Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation - Legal Section Regulation 400 West Robinson Street 130 North Monroe Street Orlando, Florida 32801 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 0000925 DOAH NO. 81-2152 TREMONE RUDMAN, Respondent. /
