Findings Of Fact Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500. DONE and ENTERED this 16th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER 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 16th day of April, 1982.
The Issue Did Frederick Anthony III, Inc., employ persons who were not licensed? Did Benjamin Foster have knowledge that these individuals were employed? Was Benjamin Foster responsible for the employment of unlicensed individuals? Was Benjamin Foster liable for Anthony John Bascone's actions as a real estate salesman? Did Benjamin Foster violate Sections 475.42(1)(c) and 475.25(1)(a), Florida Statutes?
Findings Of Fact Notice of the formal hearing was given to all parties as required by the statutes and rules. Benjamin C. Foster is a real estate broker holding License No. 0151634 issued by the Board of Real Estate. Frederick Anthony III, Inc. (FA III), is a Florida corporate real estate broker holding License No. 0215470 issued by the Board. Foster was the active firm member of the corporation. Donald McDonald and Delores McDonald were employed by FA III. While so employed, both of these persons engaged in the sale of real estate. Neither Delores McDonald nor Donald McDonald were licensed at the times in question. Foster agreed to be the active firm member for FA III because Anthony John Bascone and Frederick Hall, a real estate salesman, wanted to start a brokerage firm. Bascone and Hall had business connections with whom Foster wanted to affiliate, and Foster concluded that his function as active firm member with FA III would lead to business opportunities for FA III and for Foster's other real estate business. Bascone and Hall were corporate officers of FA III and managed the day-to-day activities of the office. They hired Donald and Delores McDonald as salespersons. Foster never met Delores McDonald and did not employ her. Foster met with Donald McDonald, Delores McDonald's husband, who said he was selling real estate at that time. Foster sent Donald McDonald to Bascone and Hall to be interviewed. Under Foster's agreement with Bascone and Hall, they would make the initial hiring determinations for their sales personnel and Foster would process the personnel as salespersons affiliated with the company. According to Foster's agreement with Bascone, Bascone would not engage in real estate sales until after he was license. Bascone was seeking a brokerage license, and it was their intent that Bascone would become the active firm member. The allegations involving Bascone's acting as a real estate professional were based on a transaction which was undisclosed to Hall or Foster until after the fact. This transaction involved the payment of a commission directly to Bascone by the seller which was unreported to Foster or Hall. Foster did not exercise close supervision over the activities of FA III.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of Benjamin C. Foster be suspended for three months, and that the license of Frederick Anthony III, Inc., be revoked. DONE and ORDERED this 3rd day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of March, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire 2701 Cleveland Avenue, Suite 10 Post Office Box 729 Fort Myers, Florida 33902 Mr. Benjamin C. Foster 5354 Emily Drive, Southwest Fort Myers, Florida 33908 Frederick Anthony III, Inc. 3920 Orange Grove Boulevard North Fort Myers, Florida 33903 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Gene Lawrence (Lawrence) is president of Respondent Home Owner's Equity Fund, Inc. (Homeowners) and has been for six years. He is not licensed as a real estate broker or salesperson in Florida and has not been so since 1987 or 1988. He has never worked actively in the real estate business. At no time has Homeowners ever employed a licensed real estate broker, nor was it itself licensed to engage in real estate brokerage activities. Homeowners was formed in 1986 or 1988. Lawrence is the sole owner of Homeowners. From December 1986 through December 1993, Homeowners engaged in business involving the purchase and sale of single-family homes, employing from 1-3 employees in its principal place of business in Ft. Myers. In general, Homeowners purchased homes and sold them to buyers, receiving installment payments for the purchase price. In most cases, Homeowners used contracts for deed or sometimes a lease-purchase arrangement. Homeowners located buyers through newspaper advertising. The advertisements stated that a person could own his own home instead of paying rent for about the same monthly payment. Advertisements, mostly in a shopper- type newspaper, ran almost continuously. One of Homeowner's ads, under the "For Sale by Owner" category, states: HAVE YOU HAD TROUBLE GETTING A MORTGAGE? CAN YOU AFFORD $500 OR MORE PER MONTH? WE CAN PUT YOU IN A HOME OF YOUR CHOICE! INVESTORS WILL BUY THE HOME & HOLD THE MORTGAGE. NO QUALIFYING. 332-0043 Another Homeowner ad, under rental properties, states: WOULD YOU RATHER OWN THAN RENT? FOR THE SAME MONTHLY PAYMENTS AND DEPOSIT YOU CAN PURCHASE YOUR OWN HOME! VARIOUS PRICES - SIZES - AREAS. NO BANKS, NO CREDIT CHECKS, NO HASSLES. CALL 332-0053 TODAY!! After meeting a customer in the office, Lawrence or another employee of Homeowners would determine if the customer's desires were reasonable. If so, the customer's profile, including needs and ability to pay, would be filed. If the customer was interested in obtaining the services of Homeowners, the customer had to pay a fee at the initial meeting. The fee was usually $125. The service provided by Homeowners was to offer to sell to the customer homes that it already owned or, more often, homes that it was willing to purchase. If the customer became interested in a house that Homeowners was unwilling to purchase, Homeowners would not assist the customer in any way. Following the initial visit, Homeowners would give the customer a list of homes that Homeowners was considering buying. At the same time, Homeowners did a credit check on the customer. The fee paid by the customer entitled him to these services from Homeowners for 120 days. Homeowners typically purchased homes with seller- provided financing, usually with a low down payment. The homes were of a price that Respondents' customers could afford, given their modest means. The price range was typically $50,000 to $60,000. In Lee County, where Respondents focused their efforts, a house in that range might have two or three bedrooms. If the customer purchased a home from Homeowners, it would credit his fee against his first month's payment. Otherwise, the fee was nonrefundable. When Homeowners purchased a home, Lawrence typically handled the negotiations with the listing agent. Lawrence or one of Homeowners' employees then negotiated the sale to the customer. On November 15, 1991, Curtis McRee gave Lawrence a $750 down payment on a mobile home and lot in N. Ft. Myers. At the same time, he and his wife, Lynda L. McRee entered into a contract for deed with Homeowners under which Homeowners would convey "by a good and sufficient deed" fee simple title, clear of all encumbrances, if the McRees paid an additional $24,250 with interest at an annual rate of 10.5 percent through monthly payments of $386. At this rate, 92 monthly payments would be required to satisfy the obligation. The contract for deed involves a mobile home lot, but omits any mention of a mobile home. On the same date, Respondents acquired the same property from a third party. The purchase money mortgage note was for $19,750, bearing interest at the annual rate of 10 percent, and payable by 84 monthly payments of $327.87. When the McRees missed some payments, Respondents failed to make payments to their mortgagee, which foreclosed on the mortgage and retook title to the property. On May 18, 1992, Homeowners acquired three lots from a third party for $30,319.80. On the same date, Homeowners entered into a contract for deed with Delfino and Candelaria Lopez under which Homeowners would convey fee simple title to the three lots, free of all encumbrances, by a "good and sufficient deed," if they paid $39,950 at 10.5 percent annually by monthly payments of between $375 and $396. On May 25, 1992, Laura A. Ortiz paid Homeowners a fee of $120. The receipt form states that Ms. Ortiz acknowledges that the fee "is collected in advance from clients interested in purchasing residential property, owned, or to be owned by [Homeowners]." The form adds that, during the next 120 days, Homeowners will offer Ms. Ortiz homes with monthly payments of less than $500 and Homeowners will offer owner financing at 10.5 percent annually. The form concludes by noting that the fee is nonrefundable, but will be credited toward the first monthly payment. On June 25, 1990, Homeowners acknowledged receipt from Ms. Ortiz of $500 as an "escrow deposit" for property located at 15779 Treasure Island. It is unclear whether Homeowners had a contract with the owner of 15779 Treasure Island when Homeowners accepted Ms. Ortiz's $500 escrow deposit. However, a dispute developed between Homeowners and the owner over liability to repair a roof, and Homeowners could not offer the property to Ms. Ortiz, who instead rented another property owned by Homeowners at a monthly rental of $500. Based on Lawrence's affidavit, Ms. Ortiz paid Homeowners a deposit of $4000, of which only $3500 was refunded when the deal fell through. The $500 withheld was to pay rent that Ms. Ortiz owed. On April 19, 1993, Rosa Saez paid Homeowners the $125 fee and entered into a receipt form of the type described above. Ms. Saez found a house that she liked and paid Homeowners a deposit of $1000. When some problem arose preventing Homeowners from purchasing the property that she wanted, Lawrence returned the $1000 deposit by giving Ms. Saez a personal check dated July 8, 1993. There is no evidence connecting Humberto Zabala or Sandra Aparicio to Homeowners or Lawrence. In December 1993, Homeowners stopped operating due to the pending disciplinary investigation and poor health of Lawrence. In March 1994, Lawrence began operating a similar type of business in his own name. He claims that he is not a broker and does not need to be licensed because he does not put buyers and sellers together nor does he charge a commission. Lawrence claims to sell only the homes that he owns and does so as a "social service for people," which he has continued to offer, despite doing no better than breaking even, due to a "dogged determination, a perseverance, perseverance and tenacity."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Counts IX and X of the Administrative Complaint, finding each Respondent guilty of four counts of engaging in real estate brokerage activities without a license, and imposing an administrative fine of $5000 against Gene Lawrence and $5000 against Home Owners Equity Fund, Inc. ENTERED on August 24, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on August 24, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence. Typically, Homeowners did not acquire the real property until a customer had expressed interest in the property. 5: adopted or adopted in substance. 6-8: rejected as unsupported by the appropriate weight of the evidence. 9-11: adopted or adopted in substance. 12: rejected as unsupported by the appropriate weight of the evidence. 13-14: adopted or adopted in substance. 15: rejected as irrelevant. 16-18: adopted or adopted in substance. 19: rejected as unsupported by the appropriate weight of the evidence. 20-21: rejected as irrelevant. COPIES FURNISHED: Attorney Theodore R. Gay Department of Business and Professional Regulation 401 NW 2nd Ave. Suite N-607 Miami, FL 33128 Harry Blair Blair & Blair 2138-40 Hoople St. Ft. Myers, FL 33901 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
Findings Of Fact The Department of Business and Professional Regulation, Division of Real Estate (Petitioner), is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Robert A. Schwartz (Respondent) was a Florida licensed real estate broker, having been issued license number 0481297, with an address of American Real Estate Properties, Inc., 13833 Wellington Trace, West Palm Beach, Florida. Respondent was initially licensed on or about May 23, 1988. At all times material hereto, Respondent was the qualifying broker and officer of American Real Estate Properties, Inc. (American Real Estate). On or about May 18, 1992, Respondent met with Ms. Renate Schuetze in West Palm Beach. 4/ Ms. Schuetze was from the State of New York and was interested in buying lots, building homes on the lots and renting the homes. Respondent had been referred to Ms. Schuetze by her friend, Ms. Mary Ann Runer. A few years ago, on behalf of Ms. Runer and using monies provided by her, Respondent had purchased a lot in West Palm Beach, overseen the contracting and construction of her home on the lot and rented out the home. All for which he charged Ms. Runer a fee. Ms. Schuetze wanted Respondent to do the same for her. On that same day, after meeting with Respondent, visiting prospective lots and model homes with him and discussing his process and procedure, Ms. Schuetze gave Respondent a check for $15,120 made payable to American Real Estate and returned to New York. Although Ms. Schuetze noted on the check that the money was for a deposit on one of the model homes, the monies were actually for a deposit of $2,000 on two certain lots ($1,000 each) and Respondent's fee of $13,000 ($6,500 per house) 5/ for performing the same service for her that he had performed for Ms. Runer. Ms. Schuetze wanted to pay Respondent his fee in advance instead of waiting until the homes had been built and rented. This was the first time that Respondent had received his fee in advance. The following day, on May 19, 1992, Respondent deposited the $15,120 into the operating account of American Real Estate which did not have an escrow account. Furthermore, Respondent had no intentions of opening an escrow account. However, the day before, on May 18, 1992, Respondent wrote two checks for $1,000 each to Miki S. Murray Realty (Murray Realty) for a deposit on two certain lots on behalf of Ms. Schuetze, leaving a balance of $13,120 from the monies given by her to Respondent. The deposits held the lots for Ms. Schuetze. On May 19, 1992, Murray Realty completed a document entitled "Reservation Deposit" for each of the lots. The document represented an acknowledgment of a deposit and the terms associated therewith. Murray Realty sold the lots and the homes to be constructed as a package deal. Each Reservation Deposit indicated, among other things, a lot deposit of $1,000 on a certain lot, the location of the lot, the purchase price of the house to be constructed on the lot, the representative for the builder/seller (Murray Realty), and the buyer who was indicated as Respondent. Also, each Reservation Deposit indicated that the deposit was an "earnest money deposit," that the contract was to be entered into on June 10, 1992, and that the deposit could be returned for any reason on or before June 10, 1992. Murray Realty required no further monies until after the signing of a contract for purchase from which construction draws would come from an account specifically setup for that purpose. This was not the first time that Respondent had entered into such a transaction with Murray Realty. Respondent used the same transaction for Ms. Runer. From on or about May 12, 1992, through on or about June 1, 1992, Respondent wrote checks from American Real Estate's operating account, totalling $10,403.01, from the remaining $13,120 given to Respondent by Ms. Schuetze. The expenditures were for Respondent's own use and benefit; none were associated with the services requested by Ms. Schuetze. On or about June 1, 1992, Respondent sent a completed contract for sale and purchase of the lots and homes and a blank buyer-broker contract, by express mail, to Ms. Schuetze for her signature. The contract for sale and purchase reflected that a "deposit" of $15,120 had been paid to American Real Estate, as seller, toward the purchase price and that the deposit was being held in "escrow." The blank buyer-broker agreement contained spaces for Respondent to insert an agreed upon fee but these were also left blank. Prior to sending these documents, Respondent had discussed the contracts with her and informed her that he was sending them to her. At the same time, on or about June 1, 1992, Ms. Schuetze wrote to Respondent requesting the return of her "deposit" of $15,120 within three days, indicating that she had decided not to sign a contract for the purchase of the homes. After she received the contracts, Ms. Schuetze returned them to Respondent unsigned. At no time prior to June 1, 1992, had Respondent presented to Ms. Schuetze for her signature a buyer-broker contract or a contract for sale and purchase. At no time pertinent hereto has Ms. Schuetze executed a buyer-broker contract or a contract for sale and purchase. Not having received a response to her letter of June 1, 1992, on or about June 8, 1992, Ms. Schuetze again made a demand by way of a letter for return of the $15,120 within three days. On or about June 11, 1992, at the request of Ms. Schuetze, Murray Realty returned her deposit of $2,000 on the two lots. At that time, Respondent had not contacted Murray Realty regarding her request, and he was unaware that Murray Realty had returned the deposit. Shortly thereafter, but also in the month of June 1992, Respondent agreed to return the $13,120, less the value of services he had already rendered, to Ms. Schuetze but requested additional time in which to so do since he had spent the money. She agreed to give Respondent additional time. On or about December 4, 1992, Respondent gave a statement to Petitioner in which he agreed to return, within 12 months, the $13,120 less 10 percent for the services that he believed that he had already rendered, leaving a balance of $11,808 to be returned. At the time of hearing on October 13, 1993, Respondent had failed to refund any of the money to Ms. Schuetze. Respondent has no history of disciplinary action.
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 DISMISSING Count II of the amended administrative complaint; and SUSPENDING the broker's license of Robert A. Schwartz for five years. Provided, however, that the duration of his suspension may be lessened upon the return to Ms. Schuetze of the $13,120. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of May 1994. ERROL H. POWELL 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 26th day of May 1994.
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.
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 license of Keith Allen. DONE and ORDERED this 2nd day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Allan M. Parvey, Esquire Goldberg, Rubinstein & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902
Findings Of Fact At all times relevant hereto, respondent, Elliot Rosen Realty, Inc. was a licensed corporate real estate broker having been issued license number 0218821 by petitioner, Department of Professional Regulation Division of Real Estate. Respondent Elliot Rosen held real estate broker's license number 0075258 issued by petitioner and was the qualifying officer of Elliot Rosen Realty, Inc. Respondents Stanleigh M. Franklin and Maria C. Franklin were licensed real estate salesmen in Rosen's office having been issued license numbers 0318042 and 0370308, respectively. The firm is located at 8120 Coral Way, Miami, Florida 33155. On an undisclosed date Robert W. and Carol A. Bush listed for sale with Elliot Rosen Realty, Inc., a residential property located at 8295 Southwest 153rd Street, Miami. The initial asking price was $119,000, but this was later reduced to $112,000. In April 1984, Joseph and Maria Yanes were in the process of selling their home and were consequently seeking to purchase a new residence. Both are educated persons, and Mr. Yanes has a college degree. Mr. Yanes read a real estate advertisement which advertised the Bush's property. They contacted Rosen Realty, Inc. and spoke with Maria Franklin. After inspecting the house with Maria, the Franklins met with the Yanes on April 15, 1985, for the purpose of preparing and executing an offer to purchase the house. Joseph Yanes made clear to Stanleigh Franklin that his primary concern was obtaining a mortgage with monthly payments that did not exceed $1000 per month. Otherwise, he would not be able to purchase the property. Stanleigh was familiar with a new mortgage loan program offered by a local lender (American International Mortgage Company) known as the "7.5 magnet mortgage" which offered a monthly payment for the first three years at a 7.5 percent interest rate. Stanleigh computed the principal and interest payments under this plan to be $711.55 per month. When estimated taxes and insurance were added in the total payment came to approximately $850 per month. He also advised that a mortgage insurance premium would be charged each month, which he estimated to be $50 to $60 per month. This still totaled less than the $960 or $970 which the Yanes stated their existing mortgage to be. The Yanes were told that because of the low interest rate (7.5 percent) during the first 36 months, there would be negative amortization during that period of time. In other words, the principal amount owed would actually increase rather than decrease during the first three years since interest on the note was accruing at a higher rate (13 percent). Finally, Franklin advised the Yanes that a 5 percent down payment was required with this type of mortgage and that their deposit should equal this amount to qualify for the loan. The Yanes did not indicate any dissatisfaction with this type of financing, or that they did not understand how the plan worked, particularly with respect to the negative amortization. They agreed to make an offer of $107,000 on the property, to give a $500 deposit that day, and an additional $4850 later on which equated to 5 percent of the purchase price. The contract itself made no reference to the 7.5 percent financing, but provided only that the buyers would obtain a new first mortgage for the balance owed on the $107,000 purchase price. Throughout these negotiations, there was no misrepresentation of facts by Franklin concerning the mortgage or amount of deposit required. The Yanes' offer was quickly presented by the Franklins to the sellers who accepted the offer within the next few days. The Yanes then gave an additional $4850 deposit around May 1 which was deposited in Rosen's escrow account. On May 7, they filed a loan application with American International Mortgage Company and gave a check in the amount of $185 to have an appraisal made and a credit report prepared. At that time, the loan officer explained to Joseph Yanes in detail how the magnet mortgage program worked and that there would be negative amortization under this plan. The meeting lasted for an hour and a half and Yanes did not express surprise at how the mortgage worked, or that he did not understand its concept. An appraisal was then made, and a credit check run on Mr. Yanes. However, the lender was unable to confirm any credit information on Mrs. Yanes because her employer refused to return the employment verification form. On June 20, 1984, the lender sent a denial notice to the Yanes because of its inability to obtain information regarding Mrs. Yanes. The Yanes made no other efforts to obtain financing on the property. After they executed the contract to purchase, the Yanes engaged counsel in early May to represent them at closing. Their attorney (Lisa Wilson) called all pertinent parties, including the Franklins and Rosen to learn the details of the mortgage. After having the details explained to them again, the Yanes advised counsel that they wished to cancel the contract. On May 23, 1984, Wilson sent a certified letter to Stanleigh Franklin advising that because the financing arrangements had been misrepresented to her clients they were cancelling the contract. She also demanded a return of their deposit plus interest. Just prior to the receipt of the certified letter, Joseph Yanes also telephoned Stanleigh Franklin and demanded a return of his deposit. This was the first time Franklin suspected the deal had gone awry. Shortly after this, the Yanes contacted petitioner to file a complaint against respondents. When Mr. Bush learned that the Yanes were not honoring the contract, upon advice of counsel, Bush made a claim on the $5,350 deposit for breach of contract. Faced with conflicting demands for the deposit, Rosen contacted petitioner to determine how the deposit should be disbursed. The matter was eventually referred by petitioner to its local office in Miami for investigation in October 1984. On November 27, 1984, counsel for petitioner advised Rosen that because of the pending complaint of the Yanes, petitioner could not issue an escrow disbursement order. However, he was told of the remaining two alternatives for resolving the dispute prescribed in Subsection 475.25(1)(d), Florida Statutes. A complaint for interpleader was later filed in circuit court by agreement of counsel for the Yanes, Bush, and Rosen. That complaint is still pending. Rosen, as broker, was never personally involved in the transaction until a complaint with petitioner was filed. He stood to gain no commission on the sale since the Franklins were working on a "100 percent basis" and were to receive the entire commission. Rosen has been licensed for some thirty-one years and has had no prior disciplinary action in all that time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ORDERED this 5th day of June, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of June, 1985.
The Issue The issue in this case is whether the Respondent, German H. Rodriguez, committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and disciplining real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent has been licensed as a real estate broker, license number 0434907. On March 20, 1995, Respondent submitted a license renewal form to the Petitioner which resulted in the automatic issuance of a renewed license for two years, ending March 31, 1997. The license renewal form provided, in pertinent part: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227 Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. When Respondent executed the renewal form he did not have documentation supporting his eligibility for license renewal. Specifically, Respondent did not have a course report documenting completion of the required 14 hour continuing education course. The course report that Respondent later received from an approved real estate school noted that Respondent had started the course June 1, 1995, and had finished it June 26, 1995. Respondent knew that the 14 hour continuing education course was required by the Department for license renewal. Further, Respondent knew that the course was to be completed before the renewal came due. Respondent maintains that he intended to complete the course before the renewal because he had, in fact, requested a correspondence course from an approved real estate school, had completed the course work, and had filled out the answer sheet. Unfortunately, according to Respondent, the envelope was misplaced and he failed to timely mail the answer form to the company for scoring. Therefore, Respondent did not get credit for the work until June, 1995, when he completed the work again. As chance would have it, Respondent was selected for audit in August, 1995. By this time he had completed the continuing education course work as required by the Department for license renewal but, as indicated above, did so after the renewal form had been submitted. In response to the audit, Respondent represented that he had completed the work prior to renewal but, through inadvertence, had not gotten the course credit until after the renewal period. Respondent did not successfully complete 14 hours of continuing education prior to submitting the renewal form. Respondent has been a licensed real estate broker for ten years during which time he has never been disciplined. At the time of the renewal, Respondent was not using his real estate license and was in an inactive status.
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 violated Section 475.25(1)(m), Florida Statutes, and imposing a reprimand with an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Frederick H. Wilsen, Esquire Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 German H. Rodriguez 703 Southwest 89th Avenue Plantation, Florida 33324
Findings Of Fact Respondent Anglickis is a Florida real estate broker holding license number 0001869. Respondent American Heritage Realty, Inc., is a corporate real estate broker holding license number 0169476. The address of both respondents is 102 East Leland Heights Boulevard, Lehigh Acres, Florida. (P-26.) Respondent Anglickis is president of American Heritage Builders, Inc., respondent American Heritage Realty, Inc., and Lee County Mortgage and Title, Inc. All three companies are located at the same address. (Testimony of Campbell; P-5, P-26.) On March 12, 1979, Louis G. Hofstetter and his wife, Dale I. Hofstetter, both residents of North Carolina, entered into a real estate contract with American Heritage Builders, Inc. Respondent Anglickis signed on behalf of American Hertiage Inc. Under the terms of the contract, the Hofstetters were to Purchase a lot and home to be constructed thereon by American Heritage Builders, Inc. The purchase price included the transfer of a lot owned by the Hofstetters and a cash down payment. (Testimony of Hofstetter; P-1, P-3, P-26.) The contract estimated closing costs to be approximately $2,000". It also contained conflicting conditions relative to the time within which any mortgage financing must be obtained. . . . In the event PURCHASER'S application for mortgage financing is not approved within sixty (60) days from date hereof, all monies receipted for, less cost of credit report, will be returned to the PURCHASER and this contract will be null and void. * * * FOR MORTGAGE TRANSACTIONS: This contract of Purchase and Sale shall be void unless Purchaser's application for Mortgage has been approved by a bank or financial institution and Purchaser has executed the Mortgage Acceptance Form, within four (3) [sic] months from date of this Contract of Purchase. 2/ (P-1, R-1.) On March 12, 1979, the Hofstetters signed a mortgage loan application and submitted it to Lee County Mortgage and Title, Inc. (P-26.) On May 5, 1979, 45 days after accepting the application, Lee County Mortgage and Title, Inc., submitted the Hofstetters' mortgage loan application to First Federal of DeSoto. (Testimony of Archer.) On June 15, 1979 (95 days after receiving the loan application), Lee County Mortgage and Title, Inc., wrote the Hofstetters indicating that the local lender needed additional information on their stock holdings, and enclosing a document titled "Good Faith Estimate of Settlement Charges". This document estimated that closing costs would be $2,754--$754 more than the estimate contained in the real estate contract. (P-5.) On June 22, 1979, the Hofstetters protested the increased closing cost, requested clarification, and provided the requested information on their stock holdings. (Testimony of Hofstetter; P-26.) On July 7, 1979, the Hofstetters notified Lee County Mortgage and Title, Inc., that the increased closing cost deviated from the contract, that they therefore considered the contract cancelled and wanted the deposit refunded. (Testimony of Hofstetter; P-8.) On June 29, 1979, Robert Campbell, vice-president of Lee County Mortgage and Title, Inc., wrote the Hofstetters and explained the meaning of each component of the closing cost. (P-7.) On July 17, 1979, respondent, as president of American Heritage Builders, Inc., wrote a letter to the Hofstetters expressing his position: * * * Let me try and put the contract in the proper perspective for you. It's our contention that you have reluctantly provided to us the information that would enable us to make a proper and expedient application to the lending institution and that much of this information has been confused, causing further delays. In accordance with the contract, you were to make this application as quickly and as expediently as Possible so that the contract would not expire. However, this is not the case. Thus, my immediate Position is that the contract should be expired and all of the deposits, including the cash and the lot which we gave you $6,995.00 trade for, would be forfeited as agreed upon liquidated damages. He ended by outlining other alternatives and repeating his asserted right to cancel the transaction and retain the Hofstetters' deposit as liquidated damages * * * First, the lending institution must make a quick determination based on the facts that they have that you are either eligible or not eligible for a mortgage loan as outlined in our contract. If they still do not have enough information, we have no other choice then but to ask you to pay the increase which we have experienced at this time (price list enclosed), and in paying that increase we would be willing to take another 90 days to try and secure a loan for you. If your mortgage loan is denied, your deposit less the costs of processing your mortgage application will be returned to you. Of course, the third choice is the choice I hope we do not have to take, and that is cancelling this transaction and retaining your monies as agreed upon liquidated damages. (P-9.) Mr. Hofstetter responded on July 22, 1979. He denied that he was responsible for any delay or confusion in the Processing of their loan application; asserted that 93 days had elapsed from the submission of their loan application and Mr. Campbell's letter of June 15, 1979, asking for additional financial information; and informed respondent Anglickis that the contract had already expired by virtue of the clause allowing 60 days to obtain mortgage financing. He then, again, asked that his deposit be returned. (P-10.) On July 30, 1979, respondent Anglickis, as president of American Heritage Builders, Inc., wrote to the Hofstetters indicating that the loan had been approved 3/ and he was prepared to build their home at the contract price. He then addressed Mr. Hofstetter's July 22, 1979, denial of any responsibility for delay in obtaining the mortgage loan: I have reviewed your letter of July 22, 1979 and I understand we certainly have a difference of opinion as to whose fault the delay has been caused by. However, I don't think it's time to look at whose fault the delay might be, since it all has worked out to your satisfaction. The mortgage has been approved and we are ready to build. I expect you will now sign the mortgage papers when receipted for so that we may begin construction immediately. (P-11.) On August 6, 1979, the Hofstetters restated to respondent Anglickis that they were not prepared to go ahead with construction, that the contract became null and void by operation of the 60-day mortgage financing clause, and that the deposit should be immediately returned. (P-12.) On August 31, 1979, respondent Anglickis notified the Hofstetters that, pursuant to the contract conditions, he was retaining their full deposit, including cash and the real estate lot for which they received a $6,995 credit toward the purchase price. The full down payment totaled $10,350. (P-1, P-13.) On September 8, 1979, the Hofstetters replied: We cannot understand why you continue to ignore the provisions of the second sentence of Paragraph Two on the reverse side of Contract No. 1997, dated 12 March 1979. You say you intend to invoke the Provisions of the third sentence of this para- graph, but this sentence is Predicated on the assumption that the mortgage would be approved within sixty (60) days. The mortgage was not approved until late July (your letter of 17 July 1979 indicated it was not yet approved, and your letter of 30 July 1979 stated that it had now been approved), more than 120 days past the date of the original contract. Our Position is as Previously stated on several occasions: on 12 May 1979 the contract became null and void, and on that date our deposit should have been refunded. Any action other than this is illegal, according to the terms of the contract. We are due return of our down payment, plus interest, from 12 May 1979. (P-24.) On October 3, 1979, First Federal of DeSoto, which had continued to process the Hofstetter loan application, issued a commitment approving the requested loan. On October 10, 1979, the Hofstetters rejected the mortgage loan. (P-26.) Subsequently, the Hofstetters wrote letters to the Florida Department of Legal Affairs and the Lehigh Chamber of Commerce complaining of respondent Anglickis' retention of their deposit; they, then, retained an attorney and filed a civil action against respondents in the circuit court of Lee County. That action was settled out-of-court. There is no evidence whatsoever to support respondent Anglickis' assertion to the Hofstetters that they were dilatory or responsible for confusion or delay in obtaining the necessary mortgage financing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against respondent American Heritage Realty, Inc., be dismissed; That respondent Richard A. Anglickis be administratively fined $1,000. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oaklnd Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982.
