Findings Of Fact At all times relevant hereto, Petitioner was licensed as a real estate broker by the Florida Real Estate Commission. In May 1988, he was working as a broker-salesman with G.V. Stewart, Inc., a corporate real estate broker whose active broker is G.V. Stewart. On April 20, 1989, Respondent submitted a Contract for Sale and Purchase to the University of South Florida Credit Union who was attempting to sell a house at 2412 Elm Street in Tampa, Florida, which the seller had acquired in a mortgage foreclosure proceeding. This offer reflected a purchase price of $25,000 with a deposit of $100 (Exhibit 2). The president of the seller rejected the offer by striking out the $25,000 and $100 figures and made a counter offer to sell the property for $29,000 with a $2000 deposit (Exhibit 2). On May 9, 1989, Respondent submitted a new contract for sale and purchase for this same property which offer reflected an offering price of $27,000 with a deposit of $2000 held in escrow by G.V. Stewart (Exhibit 3). This offer, as did Exhibit 2, bore what purported to be the signature of William P. Murphy as buyer and G. Stewart as escrow agent. In fact, neither Murphy nor Stewart signed either Exhibit 2 or Exhibit 3, and neither was aware the offers had been made at the time they were submitted to the seller. This offer was accepted by the seller. This property was an open listing with no brokerage firm having an exclusive agreement with the owner to sell the property. Stewart's firm had been notified by the seller that the property was for sale. Respondent had worked with Stewart for upwards of ten years and had frequently signed Stewart's name on contracts, which practice was condoned by Stewart. Respondent had sold several parcels of property to Murphy, an attorney in Tampa, on contracts signed by him in the name of Murphy, which signatures were subsequently ratified by Murphy. Respondent considers Murphy to be a Class A customer for whom he obtained a deposit only after the offer was accepted by the seller and Murphy confirmed a desire to purchase. Respondent has followed this procedure in selling property to Murphy for a considerable period of time and saw nothing wrong with this practice. At present, Respondent is the active broker at his own real estate firm.
Recommendation It is RECOMMENDED that William H. McCoy's license as a real estate broker be suspended for one year. However, if before the expiration of the year's suspension Respondent can prove, to the satisfaction of the Real Estate Commission, that he fully understands the duty owed by a broker to the seller and the elements of a valid contract, the remaining portion of the suspension be set aside. ENTERED this 29th day of November, 1989, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. COPIES FURNISHED: John Alexander, Esquire Kenneth E. Easley 400 West Robinson Street General Counsel Orlando, Florida 32802 Department of Professional Regulation William H. McCoy 1940 North Monroe Street 4002 South Pocahontas Avenue Suite 60 Suite 106 Tallahassee, Florida 32399-0792 Tampa Florida 33610 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the state government licensing and regulatory agency charged with the responsibility to prosecute Administrative Complaints alleging misconduct by practitioners of the real estate profession in this state. The Florida Real Estate Commission is the state agency responsible for licensing real estate sales persons and brokers in Florida and for regulating the real estate profession in this state. By Administrative complaint dated May 1, 1992, Respondent and Nicholas G. Patsios were charged with various violations of Section 475.25(1), Florida Statute. At the time, Respondent was a licensed real estate salesperson at Gulf Beaches Realty, Inc. (Gulf Beaches) in Holmes Beach. Gulf Beaches was licensed as a real estate broker for which Mr. Patsios was the qualifying broker. However, Respondent was actually the owner of Gulf Beaches and registered as an officer of the corporation. On January 16, 1992, an investigator for the Department had attempted to audit Gulf Beaches' escrow account but could not do so because the records were not in order. This was the impetus for the investigation into the operation which resulted in the filing of the Administrative Complaint. Respondent actually operated the brokerage, and in the Administrative Complaint was alleged to have been registered as an officer of a brokerage corporation while licensed as a salesperson. She was also charged with having operated as a broker while licensed as a salesperson. By Final Order dated August 18, 1992, the Florida Real Estate Commission found Respondent guilty of the alleged misconduct, fined her $100.00, reprimanded her and placed her on probation for one year conditioned, inter alia, upon her not violating any other provisions of Chapter 475. On May 21, 1993, the Department again charged Respondent with violations of Chapter 475, alleging that she: (1) continued to operate as a broker while licensed as a salesperson; (2) operated as a broker without holding a valid broker's license and (3) violated an order of the Commission. Though the matter was referred to the Division of Administrative Hearings, Respondent failed to respond to the Administrative Complaint, and pursuant to a motion to relinquish jurisdiction, the matter was returned to the Commission. Thereafter, by Final Order dated November 7, 1993, the Commission revoked Respondent's license as a salesperson. In the interim between that action and the filing of the instant Administrative Complaint, Peggy Jean Lasser, a licensed broker, became the qualifying broker for Gulf Beaches. She allowed Respondent, the owner of the brokerage, to control its operations, including interfacing with clients. When the Commission initiated action against Ms. Lasser for that infraction, she did not dispute the allegations, and as a result, by Final Order of the Commission dated August 15, 1995, her license was suspended for two years. Ms. Lasser immediately ceased operating as the broker for Gulf Beaches. To the best of her knowledge, however, Gulf Beaches is still operating as a real estate office without a broker, and Respondent is still operating as a salesperson without a broker. On July 29, 1996, George Sinden, an investigator for the Department, went to Gulf Beaches' office accompanied by another investigator. He found the door to the office open and Respondent seated at a desk beside the door. She was alone in the office. There were office machines present and it appeared to Sinden that the office was operating as a real estate office. During his visit, Mr. Sinden could find no one with a valid license as a broker or salesperson. Respondent indicated she was trying to find a broker to qualify the company. She admitted she was currently operating a real estate business. Respondent also indicated she had four rentals which she was managing and for which she was depositing funds into a trust account for the owners. She also claimed to have an escrow account with over $2,000 in it. Sinden found that Respondent was not complying with the Commission's monthly reconciliation requirements and he could not determine to whom the funds in the escrow account belonged. Respondent claims this money was deposit money placed by a prospective purchaser in a sale between two parties, both of whom trusted her to hold the funds. She claims she was to receive a 5 percent fee. Records of Secretary of State's office showed Ms. Lasser as the only officer of Gulf Beaches. However, she no longer holds a valid broker's license. Respondent indicated she was the sole owner of Gulf Beaches. She claimed when Sinden interviewed her and at the hearing, where she again admitted the matters set forth above and in the Complaint, that she has not take in any new business since Ms. Lasser left. Respondent admits that she has attempted to divest herself of her clients but claims that because the Complaints filed against her by the Department have damaged her reputation, no broker will work with her or her business since the action in 1992. Respondent either cannot or will not accept the fact that she is operating illegally. Her primary concern seems to be the fact that this business is her way of making a living. She is 80 years old and seeks only to operate for two more years, at which time she will "meet her maker." The evidence is clear that since 1992, and before, Respondent has been the owner of Gulf Beaches. From the departure of Mr. Patsios to the incumbency of Ms. Lasser, and after the departure of that individual up to the present, Respondent has operated the corporation without a broker. It is also clear that since November 1993, Respondent has operated as a salesperson without a valid license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and, consistent with the provisions of Section 455.228, Florida Statutes, impose an administrative fine in the amount of $2,500.00. DONE and ENTERED this 3rd day of September, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of September, 1996. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N308 Post Office Box 1900 Orlando, Florida 32802-1900 Geraldine Ruesel, pro se 5351 Gulf Drive Holmes Beach, Florida 34217 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue In this disciplinary proceeding, the issues are: (1) whether Respondents, who are licensed real estate brokers, failed within a reasonable time to satisfy a civil judgment relating to a real estate commission; (2) whether Respondents failed to maintain trust funds in an escrow account as required; and (3) whether disciplinary penalties should be imposed on Respondents, or either of them, if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact The Parties Respondent Marlene Montenegro Toirac ("Toirac") is a licensed real estate broker subject to the regulatory jurisdiction of the Florida Real Estate Commission ("Commission"). Respondent Home Center International Corp. ("HCIC") is and was at all times material hereto a corporation registered as a Florida real estate broker subject to the regulatory jurisdiction of the Commission. Toirac is an officer and principal of HCIC, and at all times relevant to this case she had substantial, if not exclusive, control of the corporation. Indeed, the evidence does not establish that HCIC engaged in any conduct distinct from Toirac's in connection with the transactions at issue. Therefore, Respondents will generally be referred to collectively as "Toirac" except when a need to distinguish between them arises. Petitioner Department of Business and Professional Regulation, Division of Real Estate, has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. The Veloso Judgment Toirac and Elena Veloso ("Veloso") did business together and wound up as opponents in court. Veloso got the better of Toirac, obtaining, on June 5, 2001, a judgment in the amount of $4,437.60 against her and HCIC from the Dade County Court. The judgment liquidated a real estate commission that Veloso claimed the defendants owed her. On June 12, 2001, Toirac filed a Motion to Set Aside Final Judgment, wherein she asked the county court to (a) vacate its judgment in favor of Veloso, on the ground that the defendants had not been served with process and (b) consolidate Veloso's county-court proceeding with an action then pending in circuit court, which Toirac had brought against Veloso.1 As of the final hearing in this case, Toirac's motion, after four years, had not been heard or decided. As of the final hearing in this case, Toirac had not satisfied the judgment in favor of Veloso. The Escrow Account Shortfall On January 24, 2002, Tibizay Morales, who was then employed by Petitioner as an investigator, conducted an audit of Toirac's records. (The impetus for this audit was Petitioner's receipt, on or about June 20, 2001, of a complaint from Veloso.) Pursuant to the audit, Ms. Morales determined that the balance in Toirac's escrow account was $4,961.05. Ms. Morales determined further that Toirac's trust liability, i.e. the total amount of money that she should have been holding in escrow on her clients' behalf, was $12,242.00. Thus, there existed a shortfall of $7,280.95 in Toirac's escrow account. Toirac was not able, at the time of the audit, to explain the shortfall. A few weeks later, however, by letter dated February 13, 2002, Toirac informed Ms. Morales that the shortfall had been caused by the issuance, "in error," of a check in the amount of $7,345.00, which was drawn on HCIC's escrow account and payable (evidently) to HCIC; HCIC had deposited the funds into its operating account, thereby creating, according to Toirac, an "overage" of $7,345.00 in the latter. To correct the problem, Toirac had arranged for the transfer of $7,345.00 from HCIC's operating account to its escrow account, which was accomplished on or about February 1, 2002. The Charges In counts I and IV, Petitioner charges Respondents with failing to account for and deliver trust funds, in violation of Section 475.25(1)(d)1., Florida Statutes.2 Petitioner's position is that Respondents failed within a reasonable time to satisfy the county-court judgment in favor of Veloso. In counts III and V, Petitioner accuses Respondents of having failed to maintain trust funds in the real estate brokerage escrow account until disbursement was properly authorized, in violation of Section 475.25(1)(k), Florida Statutes. Petitioner's position is that the escrow account shortfall identified on January 24, 2002, is proof that funds held in escrow had been disbursed without proper authorization. Ultimate Factual Determinations There is no dispute (for Toirac admitted at final hearing) that the judgment debt owed by Respondents to Veloso relates to a real estate commission. It is also undisputed that, as of the final hearing, the county-court judgment had not been satisfied. The undersigned determines that Respondents have failed to satisfy the civil judgment in Veloso's favor within a reasonable time.3 Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(d)1., Florida Statutes.4 It is determined that the erroneous transfer, via check, of funds from HCIC's escrow account to its operating account constituted an unauthorized disbursement of funds entrusted to Toirac by others who had dealt with her as a broker. While this might have resulted from the simple mistake of an incompetent bookkeeper, as Toirac maintains, nevertheless the disbursement was unauthorized and substantial——amounting to approximately 60 percent of Toirac's total trust liability. Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(k), Florida Statutes. In view of the foregoing, Petitioner has established the charges set forth in counts I, III, IV, and V of its Administrative Complaint, by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondents guilty as charged in counts I, III, IV, and V of the Administrative Complaint; (b) suspends Respondents' respective real estate licenses for 90 days; and (c) imposes an administrative fine of $2,500 against Respondents, jointly and severally; and (d) places Respondents on probation for a period of at least 3 years, subject to such lawful conditions as the Commission may specify. DONE AND ENTERED this 14th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2005.
The Issue The issues are whether Respondent has violated Florida Administrative Code Rule 61J2-14.010(1) and section 475.25(1)(e) and (k), Florida Statutes, by failing to place immediately into escrow a security deposit of $5482; violated section 475.25(1)(u) by not being involved with the daily operations of Advantage International Realty, Inc. (AIR), by being hired to qualify AIR and receiving payment from AIR, and failing to direct, control or manage Jennifer Briceno, a sales associate employed by Respondent, while she provided real estate services to two individuals; and violated section 475.25(1)(d)1. by failing to refund $5308 upon demand by Mr. Mansour and Ms. Haddad on December 20, 2011. If so, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license numbers 69234 and 3093422. He has never been disciplined. Licensed as a sales associate since 2000, Respondent served as a sales associate with three brokers. Licensed as a real estate broker in 2002, Respondent served as a broker associate with two brokers until, in August 2002, Respondent served as the broker for his first real estate brokerage. He served as a broker for two brokerages, much of the time simultaneously, from 2002-05 and 2007-09. For the last five months of 2008, Respondent worked as a broker sales associate for a third brokerage, and, from 2009-11, Respondent was registered as a sole proprietorship broker. From November 14, 2011, through January 6, 2012, Respondent served as the broker for AIR. On November 7, 2011, Respondent was listed as a director of AIR with the Department of State, Division of Corporations. AIR became licensed as a Florida real estate brokerage on November 14, 2011, holding license number 104302. Respondent was the qualifying broker of AIR from November 14, 2011, to January 6, 2012. No longer a brokerage after Respondent resigned as its qualifying broker, AIR resumed operations as a brokerage on March 1, 2012, when Jennifer Briceno served as the qualifying broker. She served in this capacity until March 4, 2013, at which point Petitioner suspended the licenses of AIR and Ms. Briceno by separate emergency orders. Ms. Briceno was first licensed as a sales associate in 2008. She served as a sales associate with an unrelated corporation in Tamarac, Florida from May 28, 2008, to October 24, 2011. Her license was inactive until November 14, 2011, on which date she became a sales associate with AIR. On February 17, 2012, she became licensed as a broker and served as a broker associate with AIR until March 1, 2012, at which time she served as its qualifying broker. As noted in paragraph four, from January 6 to March 1, 2012, AIR's brokerage license became invalid due to the lack of a qualifying broker. As noted in paragraph five, Ms. Briceno served at AIR as a sales associate from January 6, 2012, and then as a broker associate from February 17, 2012, until March 1, 2012--an eight-week period during which AIR's brokerage license was invalid due to its lack of a qualifying broker. On November 7, 2011, Respondent was listed as a director of AIR with the Department of State, Division of Corporations. At no time was Respondent ever a signatory on the operating account of AIR. Jackie and Sam Haddad and Morris Mansour are residents of Canada and friends. They decided that they wanted to enter into a lease of a residence in Fort Lauderdale for a vacation during the winter of 2011-12. They agreed that Mr. and Ms. Haddad would occupy the residence for two months, and Mr. Mansour would occupy the residence for the ensuing two months. For the sake of simplicity, they agreed that Mr. Mansour would take in his name the lease for the entire four months, which was to run from December 15, 2011, through April 15, 2012. Ms. Haddad found the subject property on the Internet and got in touch with Ms. Briceno at an unspecified point in time. At some point, Ms. Briceno sent to Mr. Mansour a blank Agreement to Enter into a Lease and asked him to complete, sign, and return the form to her with a check for the entire rent. Mr. Mansour objected to paying the entire rent and asked that he be allowed to pay half at that time and half upon occupancy. Ms. Briceno agreed. Accordingly, on November 12, 2011, Mr. Mansour wired $5500 to AIR and faxed to Ms. Briceno a completed Agreement to Enter into a Lease. AIR did not have an escrow account. Although there was a listing broker for the rental property, Ms. Briceno did not give the deposit check to her. Nor did Ms. Briceno present the funds to AIR's qualifying broker. It appears that Ms. Briceno conducted this real estate business and received the funds prior to AIR's obtaining a qualifying broker. In any event, it appears that Ms. Briceno deposited the funds in AIR's operating account. However, on November 12, 2011, Ms. Briceno faxed the signed Agreement to Enter into a Lease to a sales associate of the listing broker. The net of $5482 posted on AIR's general operating account on November 16. On the same day, AIR's bank statement shows a "counter debit" of $5010. From November 16 through the end of January 2012, this account never had sufficient funds to repay the $5500 or net $5482. After receiving the offer to lease from Ms. Briceno, the sales associate of the listing broker spoke with the owner and learned that the cost of short-term insurance precluded a lease for less than one year. By email dated December 1, the sales associate informed Ms. Briceno that the owner would not accept the offer. After not hearing from Ms. Briceno for some time, Ms. Haddad and Mr. Mansour tried to reach Ms. Briceno, but repeated calls to her business and cellphone numbers went unreturned. Mr. Mansour, who intended to occupy the subject property first, finally contacted the sales associate of the listing broker and learned that the offer had not been accepted. At some point, Darwin Briceno, Ms. Briceno's husband, became involved. By email to Ms. Mansour dated November 29, 2011, Mr. Briceno sent a release covering a refund of $5308, net wire fees and an application fee. On December 8, Ms. Haddad sent an email to someone at AIR stating that they were still waiting for their refund of $5308. Getting no response and having learned Respondent's name in the interim Ms. Haddad re- sent the December 8 email to the administrator of AIR-- attention: Respondent--and warned that they would retain counsel if they did not hear from Respondent within 24 hours. No one heard from Respondent, who cashed AIR checks on January 31 and May 1 in the amounts of $1610 and $3225, respectively. On February 24, 2012, Mr. Briceno sent Mr. Mansour an AIR check in the amount of $5308, but it bounced. The Haddads and Mr. Mansour have never recovered any of their deposit. During the investigation, Respondent admitted to Petitioner's investigator that he was not involved with the day- to-day operation of AIR, and he did not know anything about how AIR had handled the money that Mr. Mansour had sent. Respondent specifically admitted that he was a "broker for hire" at AIR, meaning that he had rented his broker's license to qualify AIR as a real estate brokerage. Respondent's lack of involvement in the business of AIR is confirmed by Karrell Brett, whom Mr. Briceno hired, on behalf of AIR, as a sales associate, as of December 9, 2011, Ms. Brett interviewed with Mr. Briceno, not Respondent. While employed by AIR, Ms. Brett did not know Respondent and believed her broker was Mr. Briceno. Although Ms. Brett decided on her own to advise her clients to deposit any escrow funds with a title company, she never received any instruction from Respondent to deposit escrow funds with a title company. Respondent never made any attempt to supervise any sales associate or other employee of AIR in the conduct of real estate business on behalf of the corporation that Respondent had qualified as a real estate brokerage. Respondent had been the qualifying broker for two days when the deposit was posted to AIR's account; he was responsible for AIR's failure to account for this money from the point of deposit forward until his resignation. Likewise, Respondent had been the qualifying broker for about six weeks when he received the latter of Ms. Haddad's emails demanding a refund of the deposit. Respondent did not ensure that AIR refunded the deposit at that time.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of Counts 2, 3, and 4, dismissing Count 1 as duplicative of Count 2, and revoking Respondent's real estate broker's license. DONE AND ENTERED this 10th day of September, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2013. COPIES FURNISHED: Nancy Pico Campiglia, Esquire Your Towne Law, P.A. 5465 Lake Jessamine Drive Orlando, Florida 32839 Daniel Brackett, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801
Findings Of Fact Frederick Hodgdon (Hodgdon) has held Florida real estate broker license 0206805 at all times pertinent to this case. Hodgdon is owner and qualifying broker for Pelican Realty of Marco Island, Inc., (Pelican Realty), through which Hodgdon conducts business and which also is named as a respondent. At all times pertinent, Pelican Realty has held Florida corporate real estate broker license 0223934. July 24 through August 6, 1984, respondents placed the following newspaper advertisement in the Sun-Daze: DO YOU KNOW ... that all Florida real estate brokers are agents for the seller and CANNOT legally propose any lower than listed prices or better terms for the benefit of the buyer? UNLESS ... the broker legally qualifies himself as an agent for the buyer. As a Buyer's Broker Pelican Realty CAN and DOES exactly this and a lot more! Buyers pay no fees or commissions. Call or send for our informative brochure, you will be glad you did. The real estate buyer's best bet for the best price is to have a Buyer's Broker. On February 19, 1986, respondents placed the following newspaper advertisement in the Marco Island Eagle: 1/ BUYER BEWARE! DON'T BUY REAL ESTATE ON MARCO ISLAND. ... before consulting an attorney or carefully reading Paragraph 5) and 7) of the 1985 Revision of the Sales Contract as approved by the Naples Area Board of Realtors and the Marco Island Area Board of Realtors and the Collier County Bar Association contract Revision Committee. The Contract states quote: "The Buyer has inspected the property sold by the Contract and there are no other inspections permitted or required. The property is acceptable in its AS IS condition as of date of this offer. INCREDIBLE! ... What happens to the unwitting Buyer who intends to have termite, structural and seawall inspections AFTER his offer is accepted? He just may have to buy a termite ridden house that needs a new roof and a seawall that is on the verge of collapse. Thats what! ... Taken at face value the Sales contract calls for the buyer to spend several hundred dollars for inspections BEFORE making an offer that may well be turned down. INCREDIBLE! .... Paragraph 7) states quote: "Buyer's decision to buy was based on Buyer's own investigation of the property and not upon any representation, warranty, statement or conduct of the Seller, or broker, or any of Seller's or broker's agents" (Excluding those rare occasions when the seller and his agents remain silent.) INCREDIBLE! ... The above subject sections of Paragraphs 5) and 7) of the 1985 Sales Contract in our opinion may well violate the Realtor's Code of Ethics Article 7) "to treat fairly all parties to the transaction." There is nothing Pelican Realty could say or do to better emphasize the Buyer's need to have an advocate on his side. ... As a Buyer's Broker we recommend striking out any and all terms and conditions of the Sales Contract that are prejudicial to the Buyer's best interests. ... Pelican Realty would appreciate the opportunity to discuss with any interested parties the many advantages of working with a Buyer Broker. Our services are at NO additional expense to the buyer. CALL US FOR FURTHER DETAILS. NOW!! On March 11, 1986, respondents placed the following newspaper advertisement in the Sun-News: CASH BACK FOR THE REAL ESTATE BUYER. THAT'S INCREDIBLE! Pelican Realty GUARANTEES CASH BACK to every buyer on every sale. The bigger the sale, the bigger the cash gift to the buyer. On top of this Pelican Realty (a Buyer's Broker) goes all out to get the lowest possible price for the buyer at NO additional cost to the buyer. Other realtors must get the highest price for the seller. The thousands you SAVE already belong to you. THINK ABOUT IT! Call us for further details NOW! "WE PAY OUR BUYERS TO DO BUSINESS WITH US" There is nothing false or fraudulent about the three advertisements. However, the following statements in the advertisements are deceptive or misleading in form or content: The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that buyers pay no fees or commissions. In form, the buyer perhaps does not pay brokerage fees or commissions. But in substance, the buyer does indirectly pay his broker a brokerage fee or commission when the seller pays fees and commissions out of the proceeds of the sale. The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that a buyer's broker "legally qualifies himself as an agent for the buyer." Although perhaps technically correct, this representation implies separate state regulation and qualification procedures for licensure as a buyer's broker. In fact and in law, any licensed real estate broker can become a buyer's broker simply by entering into an agreement with a buyer to be the buyer's broker. The representation in the March 11, 1986, News-Sun advertisement: "Other realtors must get the highest price for the seller." Read carefully in context, this representation is true--realtors other than those representing a buyer must try to get the highest price for the seller he represents (while being open, honest and fair to the buyer). But, as written, the representation could lead one to believe that the respondents have an ability no other realtors have when, in fact and in law, any realtor or other licensed real estate broker who represents a buyer can try to get the best price for the buyer. Although respondents have offered cash rebates, no client has seen the offer or asked for a rebate. Although respondents have maintained their innocence, they changed the ads to meet the criticism of the Department of Professional Regulation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order (1) reprimanding respondents, Frederick Hodgdon and Pelican Realty of Marco Island, Inc., and (2) fining them $500 each for violations of Section 475.25(1)(c), Florida Statutes (1985). RECOMMENDED this 21st day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1987.
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for regulation of licensed real estate salespersons in the State of Florida. At all times material to this case, the Respondent was a licensed real estate salesperson, holding Florida license no. 0566297. Most recently, the Respondent's license identifies her as a salesperson with Robert E. Bartlett at Bartlett Realty, 3500 First Avenue North, St. Petersburg, Florida 33701. From July 11, 1995, to September 27, 1996, the Respondent was employed by Century 21, Grant Realty of Florida, 6450 Seminole Boulevard, Largo, Florida 34642. Steve and Janice Perry (the Perrys) owned a house located at 12907 Hickorywood Lane, Largo, Florida. On or about June 5, 1996, the Perrys listed the house for sale through execution of an Exclusive Right to Sell Listing Agreement with the Respondent and Grant Realty. The Perrys were very anxious to sell the house and contacted the Respondent almost daily to determine whether there was activity on the listing. In time, the Respondent presented to the Perrys a written and signed offer (the "first offer") to purchase the property. The Perrys declined the offer, but proposed a counteroffer, and executed the document. The Respondent did not provide a copy of the offer or counteroffer to the Perrys. The Respondent eventually told the Perrys that the purchasers had been unable to obtain financing. The Respondent has no documentation of the first offer. The Respondent is unable to recall the names of the prospective buyers or of any agent representing the buyers. The files of Grant Realty contain no records related to the first offer. At some time after the first offer had failed to close, the Respondent presented a second written and signed offer to the Perrys. The Respondent indicated to the Perrys that she knew the second buyer. On the Respondent's advice, Mr. Perry amended the second offer, initialed the changes, and signed the document. Mr. Perry told the Respondent that if the amendments were not acceptable to the buyer, he would accept the original offer. The Respondent did not provide a copy of the second offer to the Perrys. The Respondent has no documentation of the second offer. The files of Grant Realty contain no records related to the second offer. The day following execution of the second offer, the Perrys inquired about the status of the matter. The Respondent told Mr. Perry that the buyer was part of an "investment group" and that the group was being contacted about the Perrys' amendments. The Perrys continued to contact the Respondent about the status of the second offer, but she offered little new information. The Respondent eventually told the Perrys that the prospective buyer thought she was being "too pushy" and was refusing to discuss the matter with her. The Respondent told the Perrys that the buyer's agent would handle the sale, but stated that it would be improper for the Perrys to contact the buyer's agent and declined to identify the agent. The Perrys continued to contact the Respondent and request information. She eventually indicated that the buyer's agent was "Dave," another Century 21 agent, and suggested it could be Dave Sweet, another Grant Realty agent. The Perrys contacted Dave Sweet. Mr. Sweet had no knowledge of the second offer and was unable to provide any information. At this point, the Perrys contacted the Respondent's employer and spoke with Karen Selby, a broker at Grant Realty. Ms. Selby was unaware of any offer on the property. Conrad Grant, owner/broker of the agency, was also unaware of any pending offer on the Perry property. Ms. Selby took possession of the Perry listing file. There was no documentation in the file suggesting that any offers were received. Ms. Selby questioned the Respondent about the second offer. The Respondent stated that the offer came from "John," a man who had come through an open house a few weeks earlier, that she'd prepared a written offer according to his direction but that he had not signed it, that Mr. Perry counteroffered, and that the counteroffer had been declined. The Respondent further told Ms. Selby that the buyer had been working with "Dave," an agent in another Century 21 agency. Ms. Selby asked for the full names of the buyer and the agent, but the Respondent was unable to provide them. Ms. Selby asked the Respondent to consult her notes or the open house sign- in sheet for the information. The Respondent was unable to provide any additional information related to the offer. Ms. Selby contacted the agency's attorney and arranged a meeting with the Respondent. During this meeting, the Respondent was again asked for, but was unable to provide, additional information related to the alleged offers. Subsequent to the meeting, the Respondent provided a name and telephone facsimile number for the alleged buyer. Using the phone number, Ms. Selby attempted to contact the buyer, identified as "Brian John Edridge." Ms. Selby received a response from a business which stated that no one by that name was involved in the business. Ms. Selby discussed the matter with Dave Sweet. Mr. Sweet told Ms. Selby he was not involved in the purported offer and had no information about the situation. The Respondent's employment at Grant Realty was terminated. There is no credible evidence that the "offers" presented by the Respondent to the Perrys were real. There is no credible evidence that the prospective "buyers" identified to the Perrys by the Respondent existed. There is no credible evidence that anyone identified as "Brian John Edridge," or any variation of the name, was involved in any prospective purchase of the Perry property. There is no credible evidence that an agent identified as "Dave" was involved in any prospective purchase of the Perry property. At the hearing, the Respondent testified in her own behalf. Her testimony lacks credibility and is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order revoking the Respondent's real estate license. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: James H. Gillis, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801-2169 Christine M. Ryall, Esquire Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, George May, was a licensed real estate broker (License No. 00056693) whose principal business address is 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida 33311. On April 24, 1980, George Aro, a licensed real estate salesman, was employed by Respondent and entered into an employment agreement whereby salesman Aro, while acting in his capacity as a real estate salesman, would receive a sixty percent (60 percent) share of commission fees paid when salesman Aro was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit 1). On August 29, 1980, salesman Aro discussed, negotiated, and obtained a contract for purchase whereby Peter Licato agreed to purchase a vacant lot in Palm Beach County, Florida. The transaction closed during September, 1980, with Respondent receiving a commission of approximately $300.00 on the Licato transaction. (See Petitioner's Exhibit 2). Pursuant to the employment agreement entered between Respondent and salesman Aro, Messr. Aro demanded his pro-rata share of the commission paid, which was received by Respondent. Respondent refuses to account for, or otherwise deliver to salesman Aro any portion of the commission received from the Licato transaction. On August 9, 1980, salesman Aro, while acting in his capacity as salesman with Respondent, negotiated and obtained a contract of the sale of a vacant lot in Palm Beach County, Florida from seller, Mrs. Nicholas Deickmann to purchaser, Hooshang Abid. The transaction closed sometime during September of 1980, and Respondent received a commission of approximately $330.00. Pursuant to the party's employment agreement, salesman Aro demanded his pro-rata share of the commission received, and Respondent refuses to remit or otherwise deliver to salesman Aro his portion of the commission received. In this regard the Respondent does not dispute and stipulated that salesman Aro was the procuring cause of the above-referred-to transactions, and admits that the commissions were received. Respondent's Defense Respondent defended his failure to account for or otherwise deliver to salesman Aro commissions received from the above transactions on the theory that salesman Aro failed to attend the closings of the above transactions, or that salesman Aro obligated his firm to pay certain expenses which were connected with the closing, which were not authorized. Respondent's defense was considered by the undersigned and rejected for lack of proof. Moreover, the undersigned advised Respondent during the hearing herein that the proper procedure to seek redress from salesman Aro for those claims asserted herein, which were not a part of the subject administrative complaint, is through the filing of a written complaint properly executed, with the Board of Real Estate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's real estate broker's license be suspended for a period of two (2) years. RECOMMENDED this 25th day of August, 1981, in Tallahassee, Florida. JAMES E. BRADWELL 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 August, 1981. COPIES FURNISHED: John R. Huskins, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. George May 2300 West Oakland Park Blvd. Suite 202 Fort Lauderdale, Florida 33311
Findings Of Fact The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the real estate licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
