The Issue Whether respondents' licenses as real estate brokers and salespersons should be disciplined for alleged misrepresentation, fraud, breach of trust, culpable negligence, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, violation of a duty imposed by statute and contract, and aiding and conspiring with other persons engaged in misconduct-- all in violation of Section 475.25(1)(b), Florida Statutes (1981).
Findings Of Fact On March 25, 1981, Elaine P. Stein, a licensed real estate salesperson, showed Mordechai and Nuti Antebi a house for sale at 1704 North 44th Avenue, Hollywood, Florida. The house was owned by Wayne L. and Gladys E. Hunter and listed with Murray Realty. The listing broker for Murray Realty was Warren Stein, and the salesperson directly involved in the listing was Alex Olson. Elaine Stein was a salesperson in the Emerald Hills office of Chinelly Real Estate, Inc.; the manager for that office was Frederick A. Lewis, a licensed real estate salesperson. (Testimony of Stein, Antebi, Olson, Lewis.) The Antebis, who were in the process of selling their present Pembroke Pines house through the Hollywood Hills office of Chinelly Real Estate, Inc., liked the house and expressed a desire to purchase it. They were told that if they assumed the existing mortgage on the Hunters' house, the interest rate would escalate on the day of closing. (Testimony of Olson, Stein.) The Antebis and Ms. Stein then returned to the Emerald Hills office where a written offer was prepared by Ms. Stein, Vilma Sardiello--a licensed real estate salesperson who frequently worked with her--and Alex Olson, the listing Murray Realty salesperson. Ms. Antebi told Ms. Stein and Ms. Sardiello that she had only $500 to place as an earnest money deposit. The purchase price was $106,000. Ms. Stein then spoke with Mr. Lewis, who advised her that the problem could be handled by executing an assignment of funds. Such an assignment would allow proceeds from the scheduled sale of the Antebis' Pembroke Pines house to be used in the Hunter-Antebi transaction. Ms. Stein, who was unfamiliar with assignments, then procured a written assignment of funds from Ms. Antebi for the sum of $19,500 and prepared a written offer. Ms. Antebi signed the offer and provided a $500 earnest money deposit. (Testimony of Stein, Olson, Sardiello, Antebi; P-1, R-1.) Immediately thereafter, Alex Olson, Murray Realty's listing agent, telephoned the offer to the Hunters in Ocala, Florida. He informed them that the Antebis were offering to purchase their house for $106,000, consisting of a $20,00 deposit, $15,000 at closing, and assumption of the current mortgage of approximately $43,000 at the prevailing interest rate. In addition, the Hunters were to take back a $28,000 purchase money mortgage at 12 percent for five years, with only interest payable monthly (He did not inform them that $19,500 of the $20,000 deposit was in the form of, an assignment of funds from the sale of the Antebis' Pembroke Pines house. He was unaware of the assignment, which Ms. Stein had inadvertently failed to disclose in the written offer.). The Hunters telegraphed their acceptance of the offer pursuant to Mr. Olson's instructions. (Testimony of Olson, W. Hunter, G. Hunter, Antebi, Stein; P-1, P- 4.) After receiving the Hunters' telegram, Ms. Stein realized that the phrase, "assignment of funds," had been mistakenly omitted from the written offer. She alerted Mr. Lewis, who, in turn, contacted Mr. Olson on March 26, 1981, and advised him that $19,500 of the deposit would come from an assignment of the proceeds from the sale of Antebis' Pembroke Pines house. Mr. Olson responded that he would not transmit another offer to the Hunters without a written letter from Chinelly Real Estate, Inc., verifying the amount of deposit held in escrow on the Hunter-Antebi transaction. (Testimony of Olson, Lewis, Stein.) Consequently, on March 26, 1981, Mr. Lewis telephoned Ann Shetter, bookkeeper and accounts supervisor at Chinelly Real Estate, Inc.`s main office. He asked her for the amount of money on deposit in the escrow account for the Antebi transaction. She replied that there was $8,000 held in escrow on the Antebi transaction; but she failed to indicate whether she was referring to the Hunter-Antebi transaction or the Antebi sale of their Pembroke Pine house which was being handled by another Chinelly Real Estate, Inc., office at that time. Mr. Lewis reasonably (although mistakenly) assumed that she was referring to the Hunter-Antebi transaction, the only Antebi transaction being handled by his office (He was unaware that the Antebis' Pembroke Pines house was being sold by another office of Chinelly Real Estate, Inc.). Instead, Ms. Shetter was referring to $8,000, which was being held in escrow, on the Antebis' sale of their Pembroke Pines house. (Testimony of Lewis, Shetter.) Mr. Lewis then in response to Mr. Olson's request, signed and delivered an escrow letter to Mr. Olson on March 26, 1981, verifying that Chinelly Real Estate, Inc., was holding $8,000 in escrow on the Hunter-Antebi transaction. (Testimony of Lewis; P-6.) Mr. Olson then telephoned the Hunters in Ocala on March 26, 1981, and told them that the deposit would be $8,000 instead of $20,000, and that $27,000 would be paid at closing instead of the agreed upon $15,000 (These changes did not affect the total purchase price.). He also told them that be felt an $8,000 deposit would be sufficient. The Hunters agreed to the changes and at Mr. Olson's request, sent a confirming telegram to the Emerald Hills office of Chinelly Real Estate, Inc. (Testimony of Olson, Hunter, Stein; P-5.) Shortly thereafter, Mr. Olson picked up the revised contract which had been prepared by Ms. Stein and signed by the Antebis; without reading it, he sent it to the Hunters for execution. This contract, fully executed by buyers and sellers, provided for a purchase price of $106,000, an initial $500 deposit, an additional deposit paid to Chinelly Real Estate, Inc.`s trust account on or before March 26, 1981, in the amount of $7,500, an assumption by buyers of an existing first mortgage held by American Savings and Loan at prevailing interest rate in the principle amount of $43,000, a $28,000 purchase money mortgage bearing interest at 12 percent for five years, interest only, payable monthly, balloon in five years, and approximately $27,000 due at closing, including $12,000 provided by assignment of funds from the sale of the Antebis' current house. (Testimony of Stein, Olson, W. Hunter, G. Hunter; P-2.) On April 9, 1981, Nancy Gooch, vice-president in charge of processing transactions for Chinelly Real Estate, Inc., discovered the discrepancy in the Hunter-Antebi transaction, that the contract indicated that $8,000 would be deposited in the firm's escrow account while, in fact, only $500 had been deposited. She alerted her boss, John Chinelly, Jr., a licensed real estate broker, who, upon further investigation, found the Lewis letter which mistakenly represented that $8,000 was held in escrow on the Hunter-Antebi transaction. (Testimony of Chinelly; P-9.) Mr. Chinelly, who was about to depart on a four-day religious retreat, called in Reginald D. Lucas, general sales manager and a licensed real estate broker, and instructed him to find out the facts surrounding the discrepancy and solve the problem. On April 9-10, 1981, Mr. Lucas called Mr. Lewis and obtained his explanation of the escrow discrepancy; after discussing alternative courses of action, Mr. Lucas told him to meet with Ms. Stein and Ms. Sardiello and decide how they would solve the problem. Various options discussed included: (1) canceling the transaction, (2) persuading the Antebis to place an additional $7,500 into escrow, and (3) depositing the personal funds of Mr. Lewis, Ms. Stein, and Ms. Sardiello to cover the escrow shortage. On Friday, April 10, 1981, and during the ensuing weekend, they discussed among themselves possible penalties, such as loss of their jobs and licenses, and what course of action would be ethical and proper. After Ms. Stein failed to persuade Ms. Antebi to place an additional $7,500 into escrow, the three real estate salespersons--Mr. Lewis, Ms. Stein, and Ms. Sardiello--reluctantly agreed to each loan the Antebis $2,500 to make up for the Hunter-Antebi escrow shortage (They obtained a promissory note dated April 10, 1981, from the Antebis requiring repayment when the Pembroke Pines house was sold.). (Testimony of Lucas, Stein, Lewis; R-5.) Mr. Lewis, Ms. Stein, and Ms. Sardiello acted on their belief that Murray Realty and the Hunters had been told of the escrow discrepancy and consented to their loaning money to the Antebis to make up for the difference. Mr. Lucas led them to believe that such was the case. Between April 10 and 13, 1981, he had telephoned Mr. Olson to tell him about the escrow shortage. Because Mr. Olson was out of town, he spoke with Warren Stein (unrelated to Elaine Stein), the listing broker for Murray Realty. He and Mr. Stein agreed that they should promptly notify the Hunters of the situation. (Testimony of Lewis, Stein, Sardiello, Lucas.) Shortly thereafter, on April 13, 1981, Mr. Lucas went to Mr. Stein's Murray Realty office for the purpose of jointly notifying the Hunters. In the ensuing telephone call, the Hunters were told of a problem with the escrow account, that the three sales persons--Ms. Stein, Ms. Sardiello, and Mr. Lewis- -had agreed to make up for the shortage by depositing $7,500 of their own money into escrow, and that the closing would be unaffected. The Hunters knew of and consented to the three salespersons contributing $7,500 into escrow (There is conflicting testimony on whether the Hunters were told of this $7,500 contribution. The Hunters deny it while Mr. Lucas insists they were told of and consented to the arrangement. Mr. Lucas's testimony on this question is accepted as persuasive. The Hunters' testimony conflicts with the statements contained in their complaint filed with the Department.). (Testimony of Lucas; R-7.) When Mr. Olson returned to Murray Realty on April 14, 1981, and learned of the events which had transpired in his absence, he requested written verification from John C. Chinelly, Jr., that the three real estate salespersons had placed the $7,500 in escrow. Mr. Chinelly verified that the money had been placed into escrow and wrote a letter to Murray Realty confirming that fact. At that time, Mr. Chinelly--based on his conversations with Mr. Lucas and Mr. Stein--also believed that the Hunters had consented to the salespersons depositing the additional $7,500 into escrow. (Testimony of Chinelly, Olson, Lucas; P-7.) Closing of the Hunter-Antebi transaction was scheduled for April 28, 1981. At closing, the Antebis complained about the condition of the roof, pool, and air conditioner. The Antebis also did not have sufficient funds to close the transaction. The transaction failed to close. (Testimony of Stein, Antebis, Olson.) Subsequently, the Antebis closed on the scheduled sale of their Pembroke Pines house. As a condition to this closing, $7,500 was placed into escrow pending a court decision on a complaint for interpleader filed in Broward County Circuit Court by Chinelly Real Estate, Inc., concerning the Hunter-Antebi transaction. At all times material to the proceeding, respondents John C. Chinelly, Sr., Richard M. Chinelly, Paul James Fleck, Nancy J. Gooch, Mary E. Hulsey, James A. Chinelly, John C. Chinelly, Jr., Shana Munden, Joseph Tresser, Reginald D. Lucas, Harold E. Whitter, Asa F. Brand, Josephine B. Shanefelt, Brett A. Slabe, William F. Kuemerle, Jr., and Marshall Feinsilber were the qualifying brokers for Chinelly Real Estate, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED: That the two administrative complaints and all charges against respondents be dismissed, with prejudice. DONE AND RECOMMENDED this 14th day of June, 1982, 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 14th day of June, 1982. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36 Court Miami, Florida 33135 Howard Todd Jaffe, Esquire 1915 Harrison Street Hollywood, Florida 33020 Rodger L. Spink, Esquire 6600 Taft Street, Suite 404 Hollywood, Florida 33024 Michael J. Garavaglia, Esquire 3111 Cardinal Drive Vero Beach, Florida 32960 Vilma Sardiello 5207 Hayes Street Hollywood, Florida 33020 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the licensure and real estate brokerage and sales practice standards embodied in Chapter 475, Florida Statutes. The Respondent is a licensed real estate broker, licensed under that chapter. The Respondent, Keith Ellis, while engaged in the business of real estate development, entered into a contract whereby he would purchase a parcel of land adjacent to U.S. Highway 90, the "Scenic Highway," in Pensacola, Florida. That agreement was entered into in February, 1985, with the Respondent's purpose being to commence development of the property, consisting of eight residential lots, into a single-family residential subdivision. Mr. Ellis, in embarking upon his development plan, after entering into the contract for purchase of the subject lots, found that he lacked capital necessary to finance construction of certain infrastructure for the subdivision. He sought additional funding and ultimately was referred to Robert Tegenkamp as a potential investor. He entered into discussions with Mr. Tegenkamp and ultimately the two agreed that Tegenkamp would invest $25,000 in the project. In return, as consideration, Mr. Ellis agreed to repay the $25,000 investment to Tegenkamp within six months. He also agreed to pay Tegenkamp a $25,000 profit within twelve months. He prepared a written agreement to that effect, executed March 1, 1985. The Respondent also proposed to give Mr. Tegenkamp an option on one lot, Lot Number 8, in the planned subdivision, as further consideration for Tegenkamp investing the necessary capital. This option was executed February 28, 1985. The subdivision totaled eight lots, all of equal value, as established by the opinion of the Respondent himself, who is experienced in appraising real estate, and by M. Eugene Presley, a licensed M.A.I. appraiser. It was the intent of both Ellis and Tegenkamp, at the time of the signing of the agreement, that Ellis would seek to sell all the eight lots, including the lot on which Tegenkamp held an option. Both those parties also understood that Tegenkamp could not be repaid unless the lots were sold. Tegenkamp had no desire to take title to any lot in the subdivision and understood from the outset that he would be entitled to Lot 8, (or any lot), only if Ellis was otherwise unable to repay him. The Respondent arbitrarily chose to indicate Lot 8 on the option contract, but Tegenkamp had no special desire to acquire any interest in that particular lot. The true intent of the parties was simply that Tegenkamp have an option on a lot in the subdivision to secure him, in the event the debt was not repaid by Ellis. In view of the fact that the value of each lot was identical, it did not matter to Tegenkamp on which lot he had an "option," or other form of security interest. He never expected to get title to a lot and was never told that he would, by the Respondent or any other person. The Respondent has always acknowledged that he owes the money in question to Mr. Tegenkamp and that he was obligated under the "option" to convey one of the lots to Tegenkamp, if he could not repay him. Ellis borrowed the funds for acquisition of the property, and for coverage of most development costs, from the First National Bank of Escambia County. Before the agreements between Ellis and Tegenkamp were signed, he told Mr. Tegenkamp, who also did his banking business at the same bank, of the bank's involvement in financing the project. The Respondent suggested that Tegenkamp contact the loan officers involved to reveal his interest in the project. This Tegenkamp failed to do, nor did he ever record his option agreement. Consequently, the bank acquired a first priority lien on the eight lots by the execution and recording of the mortgage from Ellis to the bank, for financing the purchase, installation of the infrastructure and payment of other development costs. When Mr. Ellis obtained the $25,000 capital from Mr. Tegenkamp, he proceeded with his development plans. He negotiated a sale of all the lots in the subdivision to Ray Lemon, a general contractor. On May 10, 1985, he entered into a written sales contract with Mr. Lemon as to all eight lots. This contract required Ellis to proceed to complete all improvements, such as paving and drainage provisions, as well as to obtain approval of the plat of the subdivision by the City of Pensacola. Mr. Ellis informed Mr. Tegenkamp of this agreement with Mr. Lemon. Thereafter, on May 28, 1985, Mr. Ellis closed the loan with First National Bank of Escambia County, giving that bank a first priority mortgage lien on the entire subdivision. Shortly thereafter, the plat of the subdivision was accepted by the City of Pensacola. Most of the improvements installed by Ellis were complete by late July, 1985. Mr. Lemon then indicated to Ellis that he was having financial difficulties and needed to delay the closing of his purchase of the eight lots. If Lemon had been able to complete his planned purchase of all eight lots on time, Mr. Ellis could have paid Tegenkamp the agreed upon $50,000 and still netted about $10,000 profit himself. In any event, shortly after Ellis learned of the delayed Lemon closing, he was approached by Dr. and Mrs. Tousignant, who were interested in purchasing Lots 7 and 8. Dr. Tousignant owned a neighboring parcel of property and wanted to preserve his view of Escambia Bay by acquiring ownership of Lots 7 and 8. The Respondent obtained Mr. Lemon's approval to sell Lots 7 and 8 to the Tousignants and also informed Mr. Tegenkamp of the proposed sale to the Dr. and his wife, as Mr. Tegenkamp himself admitted. Mr. Tegenkamp approved of Ellis selling the lots in question, and on August 25, 1985, Ellis entered into a written agreement to sell Lots 7 and 8 to the Tousignants. The sale was closed on September 17, 1985, but did not produce enough money for Ellis to pay off Tegenkamp. Tegenkamp had not demanded payment at this time anyway and the final time limit for repayment had not elapsed. Thereafter, Ray Lemon encountered more financial problems and for several months was unable to close the planned purchase of the remaining six lots. Eventually, Lots 3, 4, 5 and 6 were sold to Ray Lemon and K. C. Hembree. These closings took place between January and March, 1986. The sales did not produce enough funds to pay off Tegenkamp because of development expenses which had to be covered, mortgage release amounts and interest attributable to each lot, which had to be paid to the bank holding the first mortgage. The Respondent thus retained ownership of only Lots 1 and 2 by the end of March, 1986. His ownership of these two lots was subject to the first mortgage to the bank, the principal balance of which remained at approximately $20,600. That mortgage was subsequently assigned to Ray Lemon who had payed off the bank. Lemon now holds that mortgage. The Respondent has attempted, without success, to sell the remaining two lots. Because of economic conditions prevailing, the value of each of the two remaining lots declined from an estimated $59,000 in March, 1985, to about $50,000 by April, 1986. Because Ellis did not timely pay the $25,000 required by the original agreement, Mr. Tegenkamp retained an attorney to represent him in seeking repayment. Attorney Miles Davis entered into various discussions with Ellis from November, 1985 through April, 1986. In December, 1985, Ellis had proposed to Davis that he deliver to Tegenkamp a quit claim deed conveying his interest in Lot 1 to Tegenkamp. Ellis could not give a warranty deed because title was then encumbered by the above-mentioned mortgage held by Lemon, as assignee of the bank, and because of a potential claim of lien by the paving contractor for $7,000 to $8,000. The contractor since failed to pursue and perfect his claim of lien. In February, 1986, Attorney Davis wrote to Ellis expressing a willingness to accept a quit claim deed on behalf of Tegenkamp. In April, 1986, Ellis delivered the quit claim deed to Davis, conveying his interest in Lot 1 to Tegenkamp. It was recorded in the public records of Escambia County. Davis then filed a civil suit against Ellis in May, 1986, on behalf of Tegenkamp. The parties since arrived at a settlement of that litigation whereby Tegenkamp is to receive approximately $25,000 and Lot 1 will be re-conveyed to Ellis. Tegenkamp's attorney, Miles Davis, testified that Ellis never denied owing the money to his client and every indication was that the Respondent was trying to sell the property as soon as possible to pay his obligation to Tegenkamp. Mr. Tegenkamp himself testified and acknowledged that the Respondent was not trying to take advantage of him, but was simply "someone who had gotten himself into a bad deal."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint be DISMISSED in its entirety. DONE and ENTERED this 22nd day of February, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0228 Petitioner's Proposed Findings of Fact: The Petitioner filed no proposed findings of facts. Respondent's Proposed Findings of Fact: 1-41 Accepted. COPIES FURNISHED: Danny L. Kepner SHELL, FLEMING, DAVIS & MENGE Seventh Floor, Seville Tower Post Office Box 1831 Pensacola, Florida 32598 Arthur R. Shell, Jr., Esquire Senior Attorney Division of Real Estate 400 West Robinson Post Office Box 1900 Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility, and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent Thomas P. Hoolihan is a licensed real estate broker. His last known address is 3440 N.W. Marinatown Lane, North Fort Myers, Florida 33903. Hoolihan is also president of Seago Group, Inc., a publicly held land development and rental corporation, of which Marinatown Realty, Inc., is a wholly owned subsidiary. In late 1977, Hoolihan met L. E. Hutchinson, the complainant in this case, through another broker for whom Hutchinson at the time was employed. In December 1977, Hoolihan and Hutchinson discussed the marketing of two condominium projects being developed by Hoolihan and reached an oral agreement whereby Hutchinson would be paid $18,000 in salary with a 1.5 percent commission on all sales. when the condominium units were completed and mostly sold, the parties' employment agreement was revised in late December 1979. Under the new agreement, Hutchinson was to receive $30,000 a year salary, commission on the remaining condominium units that had not yet closed and any commissions on outside property listings neither owned nor controlled by Seago. In return for the $30,000 guarantee, Hutchinson was to forego commissions on future properties owned or controlled by Seago Group, Inc. During the period from 1977-1978 when Hutchinson was receiving $18,000 plus a 1.5 percent commission, sales were handled through Lee Hutchinson Realty, Inc., which held license number 0182945. In early 1979, Marinatown Realty was incorporated to market Seago's real estate inventory, to identify and list outside properties and to act as a management agent for purposes of renting condominium units previously sold in recent projects. When Marinatown Realty was formed, the complainant became its active broker. While employed as the broker for Marinatown and receiving $30,000 a year as a salaried employee, Hutchinson held two other broker's licenses, one as L. E. Hutchinson Realty, Inc., and another as L. E. Hutchinson. In January 1980, Hoolihan agreed to pay a $15,000 bonus to Hutchinson in lieu of a salary increase. Since at that time sales were minimal, Hoolihan decided to pay the bonus in installments as sales occurred. Because Hutchinson left in May 1980, he received only $10,000 of the bonus which represented monies previously paid. On April 23, 1980, Hutchinson and Chuck Bundschu, a licensed real estate broker, negotiated and obtained a sales contract between Hancock Harbor Properties, Ltd., a wholly owned subsidiary of Seago Group, Inc., seller, and Frank Hoffer, buyer and licensed real estate broker, in which Hoffer offered to purchase approximately 3.16 acres of unimproved acreage for $500,000. Thomas P. Hoolihan, general partner of Hancock Harbor, executed the contract on behalf of the partnership. Prior to presenting the contract to Hoolihan, Bundschu, Hoffer and Hutchins on decided on a 30 percent, 40 percent, 30 percent, respective co- brokerage split on the $50,000 commission due on the sale of the Hancock Harbor Property. The co-brokerage fee split was typed on the bottom of the contract submitted to Hoolihan and was signed by the three brokers. The commission due to Hutchinson was made payable to L. E. Hutchinson Realty, Inc. On April 25, 1980, the contract with the original co-brokerage split was presented to Hoolihan who refused to agree to its co-brokerage split provision. In the presence of Hutchinson, Hoolihan informed Bundschu and Hoffer that he would not pay a commission to Hutchinson because he was a salaried employee of the Seago Group and not entitled to a commission on the sale of this property. Accordingly, the co-brokerage fee provision of the executed contract was never signed by the seller, Thomas P. Hoolihan. Instead, on April 25, 1980, Bundschu, Hoffer and Hoolihan agreed to a split of $20,000 to Hoffer and $15,000 to Bundschu in lieu of the split specified in the original contract. At the closing on July 18, 1980, which was held at Coastland Title Company, a closing statement was prepared which shows that real estate commissions were disbursed to Chuck Bundschu Realty, Inc. ($15,000), Marinatown Realty, Inc., ($15,000) and Hoffer's firm, Landco, Inc., ($20,000). The checks were written and disbursed following a conversation between an official of Coastland Title Company and Hoolihan in which Hoolihan informed the official that Hutchinson was a Seago employee and he would not agree to pay a $15,000 commission to him under such circumstances. On July 18, 1980, a check for $15,000 was issued by Coastland Title Company to Marinatown Realty, Inc. The $15,000 represented Hutchinson's share of the co-brokerage agreement. when received on July 18, 1980, by Billie Robinette, the broker for Marinatown Realty, the check was signed over by her to Seago Group, Inc., since in her opinion it did not represent commissions earned by Marinatown Realty. The oral agreement between Hutchinson and Hoolihan was to terminate at the end of April 1980, or approximately five days after the Hoffer contract was presented. Hoolihan offered to renew the contract without a provision for a guaranteed salary because Marinatown Realty had been consistently losing money since its incorporation. On May 6, 1980, Hoolihan received a letter of resignation from Hutchinson and concluded that his offer had been rejected In early May 1980, Hoolihan received a call from Ms. Robinette, who had been employed as Hutchinson's secretary, regarding filling the open brokerage position at Marinatown Realty, Inc. Hoolihan discovered from Ms. Robinette that Hutchinson had paid himself 50 percent of the commissions due Marinatown Realty, Inc., for the management of condominium rentals. After examining the check stubs from Marinatown's bank account, Hoolihan took personal possession of all the books and records of the company and had the office locks changed. When he examined the books and records of the realty company, Hoolihan realized that his assumption that Hutchinson Realty, Inc., became inactive when Marinatown Realty, Inc. was formed in January 1979, was erroneous and that Hutchinson had operated his own realty company, L. E. Hutchinson Realty, Inc., while employed by Marinatown Realty, Inc. The Administrative Complaint in this case was filed on July 22, 1981. The preliminary investigative report compiled by Robert Corno, DPR Investigator, was filed on September 24, 1981 and the final investigative report was filed on September 30, 1981. The following is a synopsis of the investigator's findings and recommendation: That the COMPLAINANT [Hutchinson] worked for the SUBJECT [Hoolihan] and their contractual agreement was verbal. COMPLAINANT was paid on a salary/commission basis by companies of which SUBJECT is Chief Officer. That the COMPLAINANT filed civil action suit against SUBJECT in this case and it was dismissed with prejudice. That prior investigation by the DPR recommended that no action be taken against the SUBJECT in this case. That two weeks after this investiga- tion was undertaken, an Administrative Complaint was being filed by the DPR against the SUBJECT. That the existing BROKER for MARINATOWN REALTY, INC, was not involved in this case, and that since the time of the above referenced transaction, the SUB- JECT has acquired his BROKER'S license number 020462 which had no effect in this case. That conflicting statements by inter- viewers, namely former and present employees and other agents involved in this case revealed that there is a reasonable doubt for probable cause against the SUBJECT. (Respondent's Exhibit 1) As noted by Investigator Corno, this was the second time Marinatown Realty had been investigated in relation to this case. In both instances, a recommendation that no action be taken was apparently made. At the final hearing on December 1, 1981, counsel for the Department saw the complete investigative report, including the investigator's recommendation of a lack of probable cause, for the first time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Thomas P. Hoolihan be dismissed. DONE and ORDERED this 30th day of December, 1982, 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 30th day of December, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire NUCKOLLS JOHNSON & FERNANDEZ Suite 10, 2710 Cleveland Avenue Fort Myers, Florida 33901 James A. Neel, Esquire 1315 Chalon Lane, S.W. Fort Myers, Florida 33903 William M. Furlow, Esquire Department of Professional Regulation - Legal Section 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1989.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, Gerard Latulippe, (Latulippe) was licensed by Petitioner as a real estate broker in the State of Florida in accordance with Chapter 475, Florida Statutes. At all times pertinent to this case, Respondent, Hanover International Realty, Inc., (Hanover) was a corporation registered as a real estate broker in the State of Florida in accordance with Chapter 475, Florida Statutes, with Mr. Latulippe as the qualifying broker. On November 17, 1987, Mr. Latulippe obtained a sales contract entered into by First United Realty, Inc., as purchaser, and the Estate of Louise Pio Meritai (Meritai Estate), as seller, at a sales price of $34,000. The contract provided that a deposit of $1,000 was to be placed with Hanover. The transaction did not close because the purchaser was unable to obtain financing. Neither Mr. Latulippe nor Hanover received the deposit required by the contract. On May 11, 1988, Georgia A. Kraff, on behalf of the Meritai Estate, made demands upon Mr. Latulippe and Hanover for the delivery of the deposit money. On June 26, 1988, Mr. Latulippe, proceeding as if there were a deposit, prepared and delivered to the Meritai Estate a release of deposit receipt agreement which provided that $500 would be delivered to the Meritai Estate, $250 would be returned to Florida First Realty as the listing broker, and $250 would be retained by Hanover. On June 27, 1988, Mr. Latulippe and Hanover stated in a letter to the attorney for the Meritai Estate the following: We have in our possession a check for $1,000.00 for the Pio Meritai Estate. $500.00 for the Estate, $250.00 for Florida First Realty and $250.00 for Hanover International Realty. We are prepared to release these funds as soon as we are authorized by the parties. Enclosed please find also a release of deposit form. ... On August 10, 1988, the Meritai Estate signed the release of deposit form which was returned to Hanover. Florida First Real Estate, as listing broker, did not execute the release agreement, but there was no evidence that it was called upon to do so. As of August 10, 1988, neither Mr. Latulippe nor Hanover had advised the Meritai Estate that no deposit had been received, nor had these Respondents notified the Florida Real Estate Commission or Petitioner that it had received demands on a deposit that had never been received. No monies were paid by Respondents to the Meritai Estate or to Florida First Real Estate. On February 9, 1988, Respondent Latulippe obtained two sales contracts for the sale of two condominium units. On each contract, the purchase price was $34,600 and for each contract a $1,000 deposit was to be made with Hanover's escrow account. Elwyn Jacobs, trustee, was the purchaser on both contracts and Carl and Dominica Palmisciono were the sellers on both contracts. The purchaser subsequently defaulted on both contracts and neither of these contracts closed. The purchaser did not make the deposits into Hanover's escrow account as required by the contracts. On June 17, 1988, the Palmiscionos made demands upon the Respondents for delivery of the deposit money. On June 27, 1988, Mr. Latulippe prepared and delivered a release of deposit receipt agreement which provided that $1,000 was to be delivered to the Palmiscionos, $500 was to be delivered to International Partners Realty, Inc., as the listing broker, and $500 was to be retained by Respondents. On June 28, 1988, the sellers signed the release of deposit form and returned it to the Respondents. As of June 28, 1988, neither Mr. Latulippe nor Hanover had advised the Palmiscionos that neither deposit had been received, nor had these Respondents notified the Florida Real Estate Commission or Petitioner that it had received demands on deposits that had never been received. No monies were paid by these Respondents to the Palmiscionos or to International Partners Realty, Inc. On February 23, 1988, Mr. Latulippe obtained a sales contract for the sale of a condominium unit for the sum of $47,200. Carol A. Neal was the owner and seller and Elwyn Jacobs, trustee, was the purchaser on this contract. The contract required the purchaser to deposit the sum of $1,000 in Hanover's escrow account. This contract did not close as a result of the purchaser's default. The purchaser did not make the deposit into Hanover's escrow account as required by the contract. On July 8, 1988, the seller made demands upon the Respondents for the delivery of the deposit money and furnished Respondents with a release of deposit agreement. This agreement was never fully executed and no funds were disbursed to the seller. On July 26, 1988, and on August 10, 1988, additional written demands were made on the Respondents on behalf of Carol A. Neal for the disbursement of the escrowed funds. As of August 10, 1988, neither Mr. Latulippe nor Hanover had advised Carol A. Neal that no deposit had been received, nor had these Respondents notified the Florida Real Estate Commission or Petitioner that it had received demands on a deposit that had never been received. No monies were paid by Respondents to the seller or to the listing broker. On May 31, 1988, Mr. Latulippe received in trust a deposit in the amount of $1,000 from Paul Boulware and Lyn Snody in a transaction involving of a lease of certain real property with an option to purchase the real property for the sum of $200,000. Mr. Latulippe was the owner of the subject real property and dealt with Mr. Boulware and Ms. Snody at all times in his capacity as the owner of the property as opposed to his capacity as a real estate broker. This transaction did not close and Mr. Latulippe refused to return the deposit he had received, despite the demands from Ms. Snody for him to do so. Mr. Latulippe believed that the $1,000 deposit was his because he believed that Ms. Snody and Mr. Boulware had defaulted under the terms of their contract. Ms. Snody tried to locate Mr. Latulippe or to contact him by telephone, but she was unable to do so. There was a genuine dispute between Mr. Latulippe and Ms. Snody and Mr. Boulware as to the entitlement of the $1,000 deposit. Mr. Latulippe did not notify the Florida Real Estate Commission or Petitioner that it had received demands on this $1,000 deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which: Finds that Respondents Latulippe and Hanover violated the provisions of Section 475.25(1)(b), Florida Statutes, during the course of three separate transactions, to-wit: during the course of the Meritai Estate transaction, during the course of the Palmisciono transaction, and during the course of the Neal transaction. Suspends all licenses issued by Petitioner to Mr. Latulippe for a period of one year. Imposes an administrative fine in the amount of $3,000 for which Mr. Latulippe and Hanover will be jointly and severally liable. DONE and ORDERED this 19th day of March, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5418 The proposed findings of fact submitted by Petitioner are adopted in material part by the Recommended Order except as follows: The term "conflicting demands" as used in Paragraphs 7, 11, and 15 of the proposed recommended order is not used in the Recommended Order because the escrowed funds never came into the hands of the Respondents Latulippe and Hanover. The proposed finding in paragraph 20 of the Proposed recommended order that the Respondents misappropriated the $1,000 deposit in the transaction between Mr. Latulippe, as owner and seller, and Ms. Snody and Mr. Boulware as lessee and purchaser, is rejected as being contrary to the findings made and to the conclusions reached. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William S. Isenberg, Esquire The 110 Tower, Suite 1200 110 S.E. 6th Street Fort Lauderdale, Florida 33301 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Gerald J. Latulippe Hanover International Realty, Inc., and Rent World, Inc. 1808 N.W. 115th Way Coral Springs, Florida 33071
