Findings Of Fact For purposes of the Motions to Dismiss filed by Agrico and the Department, the following findings of fact are based upon the pleadings in this case, matters to which the parties have stipulated, and DOAH Case Number 86-3618, as well as final agency action resulting therefrom: On or about August 26, 1986, Petitioners filed with the Department a petition for formal administrative proceeding which challenged the dredge and fill permit that the Department intended to issue to Agrico. The Department transmitted this matter to the Division of Administrative Hearings for hearing, and it was assigned to the undersigned Hearing Officer as DOAH Case Number 86- 3618. Petitioners relied upon Sections 120.57(1) and 403.412(5), Florida Statutes, to "initiate" DOAH Case Number 86-3618 as is clearly set forth in paragraph 20 of their Petition filed in that case. In their Motion for Fees and Costs at paragraph 3, Petitioners further allege, and thereby concede, that they "initiated the above styled proceeding (DOAH Case Number 86-3618)." A final hearing was scheduled to begin on April 28, 1987 in DOAH Case Number 86-3618. However by letter to the Department dated March 2, 1987, Agrico voluntarily withdrew its application for a dredge and fill permit which was the subject of that case. Thereafter, a telephone conference call was held on March 17, 1987, following which an Order Closing File was filed in DOAH Case Number 86-3618 on that same date, and jurisdiction was relinquished to the Department. The Final Order in Case Number 86-3618 was entered by the Department on May 18, 1987 which states: Upon consideration, it is ORDERED that the withdrawal of permit application number 53-1093999 is GRANTED with prejudice to further Department consideration of the application, but without prejudice to the future submission of another dredge and fill application covering the same tract of land covered by application number 53-1093999. The withdrawal of permit application number 53-1093999 divests the Department of jurisdiction to proceed with consideration of (Booker Creek and Manasota's) petition. Humana of Florida, Inc., v. Department of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986). Accordingly, the above-captioned case (DOAH Case Number 86-3618) is DISMISSED as moot. On July 16, 1987, Petitioners timely filed their Motion for Fees and Costs which was assigned to the undersigned Hearing Officer and given DOAH Case Number 87-3007F. Petitioners are each incorporated as not-for-profit corporations within the State of Florida, with principal off ices in Florida, and each having less than twenty-five full time employees, as well as a net worth of not more than two million dollars.
The Issue The ultimate issues in this proceeding are whether the Respondents have violated provisions of Florida Statutes pertaining to the licensing of real estate brokers and salesmen, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken by the Florida Real Estate Commission. The Administrative Complaint includes twenty-six separate counts. Counts I through XVIII contain allegations that Respondents employed various persons who were not licensed as real estate salesmen or brokers to perform duties that can only be performed by licensed persons. These counts allege violations of the provisions of Sections 475.01(3), 475.25(1)(h), and 475.42(1)(c), Florida Statutes. In Counts XIX through XXVI, various allegations of specific acts of misrepresentation or dishonest dealing are alleged. The Petitioner contends that the facts alleged in these counts constitute violations of the provisions of Sections 475.25(1)(a), (b), and (e), and 455.227(1)(a), Florida Statutes. The Respondents contend that the duties performed by employees as alleged in Counts I through XVIII do not constitute activities of real estate brokers or salesmen, and that the persons were not required to be licensed. The Respondents contend that they were not guilty of any fraud or misrepresentation as alleged in Counts XIX through XXVI.
Findings Of Fact The Respondents Jane A. Foster and Benjamin C. Foster have, at all times material to this proceeding, been licensed by the Petitioner as real estate brokers. The Respondent Guardian Association, Inc., has at all material times been licensed as a corporate real estate broker. The Respondents Jane A. Foster and Benjamin C. Foster were at all material times the qualifying brokers for the Respondent Guardian Association, Inc. During the period from approximately 1978 through 1981, the Respondents were engaged in the business of selling interval ownership shares in a condominium project located in Fort Myers Beach, Florida. The Respondents utilized telephone solicitations in order to generate sales. Individuals were employed by the Respondents to contact potential customers and to induce them to visit the project. During the period beginning January 1, 1981, and ending August 31, 1981, the Respondents employed the following persons as telephone solicitors: Susan Simcic, Tammy Steffans, Sandy Pleak, Carolyn Kim Pressley, Sharel Royal, Betty Price, and Sandy Liese. The telephone solicitors were instructed to call selected telephone numbers, and during an average workday might call as many as one hundred persons. The solicitors were directed to read a script which advised the person they reached that they were a sweepstakes winner and that their prize could be claimed by making and keeping an appointment to visit the resort. An appointment would be made for the person called to visit the resort. The person would be advised that this was part of an advertising promotion. No details concerning interval ownership, or the resort itself were discussed. The solicitors were given definite instructions not to discuss any specific aspects of the promotion beyond the script. After the telephone conversation terminated, the prospective customer would be mailed a packet of materials describing the resort. When the potential customer arrived at the resort, they would collect the prize that they won in the so-called sweepstakes and be given a sales presentation regarding interval ownership and the resort. The persons who made the sales presentation at the resort were licensed real estate brokers or salesmen. The specific script that the telephone solicitors read was changed periodically. The substance of the script, however, remained unchanged during the period from January 1 through August 31, 1981. A representative script was received into evidence at the hearing. The script is attached to this Recommended Order as Appendix "A" and is hereby incorporated into these Findings of Fact as fully as if it were set out verbatim herein. None of the telephone solicitors identified above were licensed by the Petitioner as real estate brokers or real estate salesmen. This fact was well known to the Respondents. The solicitors were not instructed to identify themselves as employees of a real estate broker during telephone solicitations. Instructions given the telephone solicitors were given either directly by the Respondents Jane A. Foster and Benjamin C. Foster, or at the direction of the Respondents. The telephone solicitors were compensated at an hourly rate. In addition, the solicitors received two dollars for each person they solicited who kept the appointment to visit the resort. The telephone solicitors were instructed to represent themselves in telephone conversations with prospective purchasers as "the Public Relations Director of the Guardian Association." This title was clearly a misleading one and was designed to persuade prospective purchasers that the person calling them had some special position of authority. In fact, the telephone solicitors directed nothing and were involved in public relations only in the sense that they were making telephone calls to members of the public. The telephone solicitors were instructed to represent to prospective purchasers that the prospective purchasers were winners in a sweepstakes. If the prospective purchasers "qualified," i.e., were married and between the ages of twenty-five and sixty-two, they were advised that they won their choice of a three-day, two-night vacation at one of several well-known vacation areas, and that they also would be eligible to win prizes ranging from cameras to microwave ovens. The potential customers were not actually winners of any sweepstakes or game of chance. All prospective purchasers solicited were identified as "winners." There was no game of chance or drawing which resulted in their being selected. Offering gifts such as the vacation and other prizes as winnings, rather than merely gifts offered to induce them to visit the resort, was designed to get prospective customers to the resort to receive the sales presentation. During the telephone solicitation, the solicitors were instructed to represent to prospective customers that they would be receiving printed matter relating to the resort and instructions for claiming the prizes. Possession of the printed matter was necessary in order for the prospective customer to claim the prizes. Respondents instructed the telephone solicitors to note whether the person they reached appeared to be a black person or a Hispanic person. If the solicitor believed that to be the case, the solicitor was to make a special notation on the solicitation form. Materials were not mailed to such persons despite representations made during the telephone solicitation that the person had won a prize and would be receiving pertinent materials. The motivation for these instructions was apparently not overt racial hostility, but rather a feeling on the part of Respondents that black and Hispanic persons were likely to be of lower income and thus not viable prospective customers. No evidence was offered from which it could be concluded that Maureen Downey, a person identified in the Administrative Complaint, was employed by the Respondents. No evidence was offered at the hearing from which it could be concluded that any prospective purchaser was injured by the misstatements made during telephone solicitations other than that persons who should have been eligible to receive "prizes" were not mailed materials which they would have needed in order to collect the "prizes."
Findings Of Fact The Respondent, Terry G. Jewell, (Jewell) is now and was at all times material to this case a licensed real estate broker-salesman in the State of Florida, having been issued license number 0131811 in accordance with Chapter 475, Florida Statutes. He has held this license since 1974, even though he has worked in the real estate business only off and on since that time. In November, 1984, Jewell started Sun Country Homes of North Florida, Inc., with E. M. Coullias and another investor. Jewell owned 32 1/2 shares of the corporation and was an employee of the corporation. Coullias was president and chief operating officer of the corporation. Jewell's duties included managing sales, advertising, development of sales materials, preparation of house plans and procurement of mortgage financing for customers. Coullias was in charge of field supervision of construction of the homes, keeping the books and records of the corporation, and paying all accounts. The corporation had another employee, Joan Mead, who acted as a secretary and sales person. On March 25, 1986, Anne and Frank Koblinski entered into a contract with Sun Country Homes of North Florida, Inc., to have a house built. After the execution of that contract, an account was opened at the Gainesville State Bank in Gainesville, Florida, jointly between Jewell, representing the corporation, and Willern Koblinski, representing his parents. The Koblinskis deposited $48,000 into that account. At the time the contract with Sun Country Homes of North Florida, Inc., was executed by the Koblinskis, they were living in the Fort Myers area, so they designated their son, Willern Koblinski, as the person authorized to disburse funds from the joint account on their behalf. Willern Koblinski lived across the street from the property where the home was to be built. He regularly inspected the building site and determined whether Sun Country was entitled to a draw in accordance with the draw schedule contained in the contract. Generally, Joan Mead, the secretary for Sun Country, would call Willern Koblinski on his pager to request a draw. After he inspected the property, Willern Koblinski would draw a check on the joint account and drop it off at the corporation's office. During the course of construction, the following draws were made from the account and were disbursed by checks made payable to Sun Country Homes of North Florida, Inc., and were signed by both Jewell and Willern Koblinski: Date Amount 5/8/86 (1st draw) $ 9,570.00 5/21/86 (partial 2nd draw) $16,000.00 The following draws were made from the account payable to Sun Country Homes of North Florida, Inc., but were never signed by Jewell: Date Amount 6/10/86 (balance 2nd draw) $ 3,140.00 6/25/86 (partial 3rd draw) $ 3,000.00 7/11/86 (balance 3rd draw) $ 6,570.00 7/30/86 (partial last draw) $ 5,000.00 The total draws were $43,280. Each draw was deposited in the general operating account of Sun Country Homes of North Florida, Inc. On July 19, 1986, Jewell took a vacation and was out of town until July 30, 1986. When he returned, he discovered that some of the homes under construction were behind schedule. Jewell also discovered that several subcontractors and suppliers had not been paid. Jewell left messages for the president of Sun Country Homes, E. M. Coullias, and attempted to contact Coullias to discuss the problems with the construction schedules on several homes and the subcontractors who had not been paid. Jewell and Coullias had a large confrontation regarding the homes that were behind schedule and the non-payment of subcontractors Shortly after that confrontation, Jewell resigned as an officer and employee of Sun Country Homes of North Florida, Inc. Even after his resignation, Jewell personally went to the job site of the homes being construction for Waters, Ross, and Koblinski, and completed these homes so that the buyers could occupy them. At the time of Jewell's resignation from Sun Country Homes of North Florida, Inc., there was $5,332.00 remaining in the joint account for the Koblinskis' house. As soon as Jewell realized that Coullias had spent the funds previously paid to Sun Country Homes of North Florida, Inc., and could not pay the subcontractors, Jewell advised Mrs. Koblinski and Willern Koblinski to withdraw the remaining funds from the joint account and to use those funds to pay any subcontractors or suppliers who had not been paid. Jewell signed a blank check in order to permit Willern Koblinski to withdraw those funds. During the time that Jewell worked for Sun Country Homes of North Florida, Inc., the corporation sold and constructed approximately 25 homes. Before the situation arose on the Koblinski contract, Jewell knew of no other incidents where Sun Country Homes failed to pay subcontractors or suppliers. During the entire time that Jewell worked for Sun Country Homes of North Florida, Inc., Coullias was President of the corporation and controlled and managed the collection and deposit of receipts of the company and disbursement of these funds. Jewell first learned of unpaid subcontractors and suppliers after he returned from vacation on July 30, 1986. After his resignation from Sun Country Homes, Jewell attempted to help the Koblinskis in completing their house. He came to their house and finished a "punch list." Jewell received no payment from Sun Country Homes for any of these efforts. The Koblinskis used part of the funds disbursed to them to pay the air conditioning and plumbing subcontractors. They have about $1,062 left from these funds. After subcontractors and suppliers were not paid, Coullias told Willern Koblinski that they would be paid. He also told Jewell to have no further contact with the Koblinskis. However, Sun Country Homes of North Florida, Inc., closed its doors without paying the subcontractors and suppliers. Apparently Coullias has left the area and cannot be located. There are at least four subcontractors who worked on the Koblinski house who have not been paid: Sun Coast Insulation $1,191.00 Landmark Truss $1,322.39 Dyson Cabinet Millwork $4,029.79 Myers Brothers Septic Tank $ 785.00 Dyson and Myers have filed liens against the Koblinski home for the amount of their respective bills. Jewell did not receive any funds disbursed to Sun Country Homes for the Koblinski house. The only funds he received from the corporation were salary and reimbursement for expenses. He did not receive any bonuses or cash loans. If the funds paid to Sun Country Homes of North Florida, Inc., for the Koblinski draws were not used to pay the bills on the Koblinski construction, Jewell did not receive any benefit in any way from those funds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Real Estate Commission enter a final order dismissing the Administrative Complaint filed against Terry G. Jewell. DONE and ENTERED this 25th day of September, 1987, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2192 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. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Terry G. Jewell Respondent's proposed findings of fact 1 - 30 are adopted in substance as modified in Findings of Fact 1 - 28. COPIES FURNISHED: Arthur Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 William C. Andrews, Esquire Post Office Drawer C Gainesville, Florida 32602 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker." Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above. DONE and ORDERED this 25th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard McClain, Esquire 6167 Haddon Road West Palm Beach, Florida 33409
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
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals in the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been duly issued license numbers 0263586, 0261820, 0260480, and 0300938. The last license issued to Respondent was as a broker with the following entities: Avatar Realty, Inc., 4550 Poinciana Boulevard, Kissimmee, Florida; Avatar Communities, Inc., 201 Alhambra Circle, Coral Gables, Florida 33134; Golden Gate Realty, Inc., 4736C Golden Gate Parkway, Naples, Florida; and Avatar Condominium Management, Inc., 201 Alhambra Circle, Coral Gables, Florida. Prior to February 20, 1987, Respondent was the owner of a convenience store known as Hemispheres Food Mart, which was located in the Hemispheres condominium and office complex in Hollywood, Florida. On or about February 20, 1987, Respondent, as owner, entered into a three month exclusive right of sale listing agreement with South Florida Business Negotiators, Inc., for the sale of the Hemispheres Food Mart, at an asking price of $100,000. In connection with the foregoing listing agreement, the Respondent represented and warranted as true that the: "Business doing $286,000 yearly net $55,000 ambitious owner can improve potential to $350,000 yearly." On or about April 1, 1987, the Respondent, as seller, entered into a "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart" with Kenny Mohammed and Annie Mohammed, his wife, as purchasers, to sell the corporate stock of Hemispheres Food Mart, Inc. to the Mohammeds. This contract was executed by the Mohammeds on April 2, 1987. The first line of the contract reflects an erroneous date for the contract of May 5, 1987. Paragraph 12 of the "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart", provided as follows: 12. PURCHASER'S RIGHT TO INSPECTION OF SELLER'S RECORDS. The Purchaser, within 72 hours after the con- tract has been signed and executed by both parties, shall have the right, either by himself or through his accountant, to inspect the financial records and receipts of the Seller to verify the amount of sales of the Seller on a weekly basis. The Purchaser shall verify that the average gross sales on a weekly basis for the Seller, during the time period from January 1 through April 1 (the season) exceed the sum of $8,400.00 per week. If the Purchaser by himself or through his accountant determines that the gross sales for the Seller are less than $8,400.00 per week, the Purchaser shall have the unilateral right to terminate its obligations under the terms of this Contract. Seller shall supply Purchaser with copies of 1985 and 1986 tax returns. The Seller agrees to allow the Purchaser to sit in the place of business for a period of one week to observe and verify that the stated daily gross sales of the business exceed $1,200.00. If during the one-week observation period the daily gross sales do not meet $1,200.00, the Purchaser reserves the right to cancel this Agreement and the deposit held in escrow shall be refunded to them. On May 7, 1987, Respondent and the Mohammeds executed an addendum to their contract. Paragraph 23 of the addendum provides as follows: 23. INSPECTION OF RECORDS It is hereby agreed that both parties shall have complied with paragraph 12, PURCHASERS' RIGHT TO INSPECTION OF SELLER'S RECORDS, and therefore same shall be considered null and void. The representation contained in the contract relating to the level of sales was for sales made during the "season" between January 1 and April 1. Mr. Mohammed exercised his right to observe the sales during the week that began April 6, 1987. During the week long observation period, the sales for two of the days did not equal $1,200. Mr. Raymond provided various records and cash register tapes for the period January 1 - April 1, 1987, for inspection by Mr. Mohammed and Mr. Mohammed's financial adviser. Following the inspection of these records and the one-week observation period, Mr. Mohammed, against the advice of his attorney, elected to close the transaction. The transaction closed in May 1987. (The closing statement signed by Respondent and the Mohammeds does not reflect the day in May the transaction closed.) Subsequent to the closing, the Mohammeds sued Respondent in a civil action brought in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida. The "Final Judgment for Plaintiffs" entered September 19, 1989, by Circuit Judge J. Cail Lee provides, in pertinent part, as follows: ... [T]he Court having heard the testimony of all witnesses and having examined the proofs offered by the respective parties, the court finds that he testimony of the two witnesses was to the effect the defendant, Warren Raymond, falsified sales during the sales verification period to induce the plaintiffs, Kenny Mohammed and Annie Mohammed, to complete the purchase of the Hemispheres Mini Mart, and that constituted fraud, and that constituted a basis not only for compensatory damages but punitive damages as well. It is therefore, ORDERED AND ADJUDGED that the plaintiffs have a judgment against the defendant for fraud in the sum of $750.00 compensatory damages and $15,000.00 punitive damages ... Respondent appealed the judgment entered against him by Judge Lee. While the case was on appeal, Respondent and the Mohammeds settled the civil suit. Respondent did not admit any wrongdoing in the Settlement Agreement. Thereafter, on March 26, 1990, Judge Lee entered a "Final Judgment of Settlement" in the civil action which vacated the "Final Judgment for Plaintiffs" that he had entered September 19, 1989, and which dismissed with prejudice the civil action the Mohammeds had brought against Respondent. There was no competent evidence presented at the formal administrative hearing that Respondent had (a) misrepresented the value of the premises or potential of the business, (b) generated false sales during the observation period, (c) falsified cash register receipts, (d) conspired with his friends to falsify sales, or (e) otherwise engaged in fraud during the course of his business dealings with the Mohammeds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint brought against Respondent in this proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON 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 28th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5320 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-5, 7 and 11 (the first of the two paragraphs that are numbered 11) are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The use of the term "induced" is rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unsubstantiated by the record. The last sentence is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 (the second of the two paragraphs that are numbered 11) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraphs 15 and 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James Gillis, Esquire Department of Professional Regulation Senior Attorney 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802-1900 Norman Segall, Esquire Bentata Hoet & Associates & Zamora, Segall, Lacasa & Schere 3191 Coral Way - Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
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. /
