Findings Of Fact Respondent has been a registered salesman with the Commission since November 2, 1972. On or about June 14, 1979, Respondent submitted to the Commission an application for registration as a salesman which contained the following questions: 17. (a) Has any license, registration or permit to practice any regulated profession, occupation or vocation been denied, revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law; or is any proceeding now pending? (b) Have you ever resigned or withdrawn from, or surrendered, any license, registration or permit to practice any regulated profession, occupation or vocation, while such charges were pending? Respondent responded negatively to both the above quoted questions on his application form. In reliance on these statements, the Commission registered the Respondent as a real estate salesman on November 22, 1972. Prior to his submission of an application for registration as a Florida real estate salesman, Respondent had been a practicing attorney in the State of New York. In the course of his practice of law, Respondent had been investigated by the Brooklyn Bar Association and charged with defrauding clients of proper shares of settlements; failing to maintain a special escrow account, and commingling personal funds with those of his clients; giving false testimony before a Grievance Committee of the Brooklyn Bar Association; failing to obtain court approval of infants' settlements; filing numerous retainer and closing statements which he knew to contain false information; failing to file retainer and closing statements with the Judicial Conference; grossly neglecting the prosecution of clients' cases; concealing the infancy of clients and failing to have guardians appear for infants in court action; representing conflicting interests; and engaging in systematic solicitation of negligence cases. While the above-mentioned charges were pending, Respondent submitted his resignation as a member of the Bar of the State of New York, effective February 1, 1971. Respondent's resignation was accepted by the Appellate Division of the Supreme Court of the State of New York by Opinion issued March 1, 1971. On February 24, 1970, Respondent applied for membership in the Florida Bar. In his application for membership in the Florida Bar, Respondent answered falsely to an inquiry concerning whether any charges or complaints, formal or informal, had ever been made or filed, or proceedings instituted against him while practicing law in any other jurisdiction. Subsequently, Respondent's license to practice law in Florida was revoked by Opinion of the Florida Supreme Court dated July 21, 1971.
The Issue Whether the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes. Whether the Respondent's guilty of failing to return an earnest money deposit upon demand, in violation of Section 475.25(1)(d), Florida Statutes, and of failing to comply with the directives of this statute when conflicting demands were made upon him concerning escrowed property. By Administrative Complaint issued on September 2, 1981, the Petitioner seeks to revoke or suspend the Respondent's real estate license, or otherwise discipline him, for alleged violations of Section 475.25(1)(b) and Section 475.25(1)(d), Florida Statutes. The Petitioner presented two witnesses in support of the Administrative Complaint, together with eleven exhibits which were received in evidence. The Respondent testified in his own behalf, along with one other witness, and introduced two exhibits which were received in evidence.
Findings Of Fact Based upon the testimony and exhibits in evidence, the stipulations of the parties, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent, Robert W. Browning, is a licensed real estate broker, having been issued License No. 0112998. The Respondent has a 25 percent interest in a Florida Partnership known as WTBS. The remaining partners are Orian P. Wells, John S. Thompson, and Luther W. Strickland. The Partnership WTBS purchased many acres of land in Dixie County, Florida from Georgia- Pacific, platted this land into lots, and offered these lots for sale. The Respondent was the registered real estate broker responsible for sales of property for the Partnership WTBS, and he was the person who had the authority to sign all closing documents in connection with transactions on behalf of the partnership. Dale Herring a licensed salesman working for the Respondent, conducted sales of the Dixie County parcels while acting under the brokerage license of the Respondent. Dale Herring negotiated a contract dated December 13, 1980, in which Robert and Frances Harburg agreed to purchase approxi- mately 14 acres of the Dixie County property. Mr. Harburg wrote a check for $2,850, payable to the Respondent, and gave the check to Dale Herring as a deposit on the property described in the contract. The Respondent placed this deposit check in his escrow account. The Respondent signed the Purchase and Sale Agreement with the Harburgs on behalf of the Partnership WTBS, as Seller, on December 16, 1980. This purchase and Sale Agreement contained the following pertinent provisions: Closing was to take place December 29, 1980. Graded-road access would be completed within four weeks of the contract. Conveyance of the property was to be by warranty deed. Seller would pay for stamps on the deed, title insurance, survey, and real estate commission. Paragraph 10 of this Agreement states: "If the Seller fails to perform any of the covenants of this contract, the [deposit] paid by the Buyer, at the option of the Buyer, shall be returned to the Buyer on demand. The closing was to take place by mail. When the Harburgs did not receive their closing docu- ments on the date set for closing, they telephoned the Respondent's real estate office. The Respondent did not return their call. The Harburgs received the closing documents January 5, 1981. The documents received conflicted with the Purchase and Sale Agreement by indicating: Conveyance was to be by contract for deed rather than by warranty deed. The Purchaser could not transfer the property without approval of the Seller. If the Seller could not give clear title to the property for any reason, the purchase price could be refunded with no interest. The contract for deed provided for a five day default period. The contract for deed required the buyer to pay certain monies to Georgia-pacific in the event of a release request. The contract for deed required the Buyer to pay for stamps on the deed. After reviewing the submitted closing documents, Mr. Harburg sent a letter to the Respondent dated January 7, 1981, requesting the return of his earnest money deposit because the closing documents submitted were in conflict with the sales contract. The purpose of this letter was to put the Respondent on notice of the Harburg's dissatisfaction with the submitted documents. The Respondent did not reply to Mr. Harburg's letter of January 7, 1981. The Harburgs visited the subject property on January 19, 1981, and found that there had been no material progress made on completion of the graded access road as required by the Purchase and Sale Agreement. On January 20, 1981, Mr. Harburg sent a second letter to Mr. Browning, requesting the return of his earnest money deposit because: The closing papers were received seven days late. The closing papers were in conflict with the Purchase and Sale Agreement. The graded access road was not completed. Upon receiving no reply from the Respondent, the Harburgs retained Richard Oehler, Esquire, to recover their earnest money deposit. Mr. Oehler wrote to the Respondent on February 6, 1981, demanding the return of this deposit within ten days. The Respondent replied to Mr. Oehler on February 10, 1981, agreeing to return the deposit upon resale of the subject property. The Respondent indicated that this would be within 30 days. Mr. Oehler wrote the Respondent on February 12, 1982, advising that the Harburgs would not wait 30 days, and that if the deposit was not returned immediately the Harburgs would file suit to recover the deposit. Mr. Oehler talked with the Respondent on February 9, 1981, March 13, 1981, March 30, 1981, and April 6, 1981, without success in securing return of the deposit. The Harburgs filed suit seeking return of the deposit in September, 1981. In mid-1981, the Respondent withdrew the deposit money from his escrow account, and deposited it into the escrow account of the attorney who represented both himself as broker and WTBS as Seller of the subject property. The Respondent neither offered to rectify the conflict in the closing documents, nor did he advise the Harburgs of any dispute between them and the Seller, WTBS, con- cerning their right to the earnest money deposit. The Respondent failed to notify the Florida Real Estate Commission concerning the dispute between the Buyer and Seller as to their rights to the earnest money deposit. The lawsuit filed by the Harburgs in September, 1981, was dismissed upon the return of their earnest money by the Respondent in February, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Robert W. Browning, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and Section 475.25(1)(d), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered this 1st day of November, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 1st day of November, 1982. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 Allen C. D. Scott, Esquire 12 North University Boulevard Jacksonville, Florida William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32501 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent-licensee Edison Realty, Inc., was during all times material herein a corporate registered real estate broker and Respondent-licensees, Richard G. Gibbs and Shirley Puhala were registered real estate brokers with the Commission and were operating and registered as active brokers with the official capacity of President and Secretary-Treasurer respectively of Respondent- licensee, Edison Realty, Inc. See Commission's Composite Exhibit #1. Pursuant to a trust agreement dated June 21, 1971, Respondent-licensee, Richard G. Gibbs, as trustee, and Walter Johnson, as beneficiary, entered Into a trust arrangement for certain properties known as Orange River Ranchettes located In Lee County, Florida. (A copy of the trust agreement is attached to the administrative complaint filed herein as exhibit "A".) Testimony adduced during the course of the hearing revealed that approximately 300 acres were purchased which the parties subdivided into 5 acre ranchettes. Pursuant to sale of the ranchettes, approximately $200,000 to $215,000 was received and invested as trust funds. At the end of calendar year 1975, Respondent-licensee, Richard G. Gibbs, obtained without the consent or permission of the remaining trustees, approximately $127,486.74 in exchange for two promissory notes executed and delivered by Respondent Gibbs, as President of Edison Realty, Inc. (A copy of the promissory notes are attached to the administrative complaint as exhibit "B"). Although the above promissory notes are now due with Interest, Respondent Gibbs refuses to pay despite demands from the trustees. Evidence reveals further that Edison Realty, Inc., received during the course of conducting its real estate brokerage business, during the period of approximately April 23, 1976 thru March 31, 1977, escrow deposits entrusted totaling approximately $37,720.00 and an examination of its escrow account maintained at First National Bank in Ft. Myers, Florida, reveals a closing balance of $5,419.76. Evidence reveals further that Edison Realty, Inc., In the course of conducting its real estate brokerage business is In charge of the management of real property known as Parklane Village Trust, Tamiami City Trust, Union Trust, Kenwood Trust, Pindel Trust, Sancarlo Trust, Broadway Trust and Captain's Quarter. For its management responsibilities, Edison received and was entrusted with funds totaling $19,625.28 and an examination of its escrow account respecting the above trust reflects closing balance of only $5,419.76. Evidence reveals further that Respondent-licensee Richard G. Gibbs, was the only person authorized to and made withdrawals from the above trust account and that as of March 31, 1977, he converted approximately $51,932.52 to his own use or to that of some other person other than the true owner or person entitled thereto. H. Freeman Bigelow, Norma Jane Morris, Allen Higgens, Hubert R. Foster, Boyd Strasbaugh, Lorelei Jane Irons, Harriet Ann Houck were all former licensed and registered salespersons with the Commission and employed by the Respondent- licensee, Edison Realty, Inc. During the course of their employment with Edison Realty, Inc., they received as payment of their share of commissions earned, checks which were returned to them for insufficient funds. Despite repeated requests by them for their share of commissions earned, Respondent-licensee, Edison Realty, Inc. and Richard G. Gibbs, as President, has failed to honor their demands. No evidence was introduced to establish that Respondent-licensee, Shirley Puhala, by any means engaged in or assisted Respondent Gibbs in the withdrawal, conversion or other appropriations for his own use of monies entrusted to him individually or in his official capacity as a trustee or President of Respondent-licensee, Edison Realty, Inc. To the contrary, it appears that Mrs. Puhala was most cooperative in assisting the Commission's investigator in his investigation of this matter. Pursuant to the emergency suspension hearing before the Commission, Carol Arnold who is presently the President of Edison Realty, Inc., entered an arrangement with Attorney C. Michael Jackson to wind up the corporate affairs of Edison Realty, Inc. The Commission directed them to refrain from engaging in any new corporate business or activity. They were further advised to establish a trust fund for monies received to be disbursed to creditors.
Recommendation Based In the foregoing findings of fact and conclusions of law, it is hereby, recommended as follows: That the Respondent-licensee, Edison Realty, Inc., registration with the Florida Real Estate Commission as a registered real estate corporate broker be revoked. That the Respondent-licensee, Richard G. Gibbs, registration with the Florida Real Estate Commission as a real estate broker be revoked. That the complaint allegations filed herein respecting the Respondent- licensee, Shirley Puhala, be dismissed and that the suspension of her registration be vacated. RECOMMENDED this 14th day of July, 1977, In Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 C. Michael Jackson, Esquire Post Office Drawer 790 Ft. Myers, Florida 33902 Ms. Shirley Puhala c/o Edison Realty, Inc. 2373 West First Street Ft. Myers, Florida 33901
Recommendation Based upon the resolution of all disputed issues of fact and law by the stipulation of the parties to this proceeding, which includes the agreed penalty as set forth above, it is RECOMMENDED that the Board of Real Estate (now Florida Real Estate Commission) adopt the stipulation of the parties, together with the agreed penalty, in its final order to be entered herein. THIS RECOMMENDED ORDER entered this 26th day of May, 1982, in Tallahassee, Florida. COPIES FURNISHED: James Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Eric A. Lanigan, Esquire 1214 East Robinson Street Orlando, Florida 32801 Fred Wilsen, Esquire 130 North Monroe Street Tallahassee, Florida 32301 WILLIAM B. THOMAS, 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 27th day of May, 1982. Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner is a state government 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 is now and was at all times material hereto a licensed real estate broker in the state of Florida having been issued license number 0223671 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Sunshine Express Realty, 300 S. Pine Road 262, Fort Lauderdale, Florida 33324. On or about November 22, 1983, an information was filed in the Circuit Court of the 17th Judicial Circuit, Broward County, Florida, charging Respondent with one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes; and two counts of grand theft in the first degree, in violation of Sections 812.014(1)(a), 812.014(1)(b), and 812.014(2)(a), Florida Statutes. On March 27, 1985, a verdict was rendered which found Respondent guilty of one count of insurance fraud by false or fraudulent claim, and two counts of grand theft in the first degree. The Court adjudged Respondent guilty of one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes, and two counts of grand theft in the first degree in violation of Section 812.014(1)(a), Florida Statutes. The Court thereupon sentenced Respondent to a prison term of eighteen months in state prison to be followed by a term of five years of probation. The Respondent does not appear to be possessed of the mental skills necessary to be the master-mind behind a complex fraud scheme, nor has he demonstrated a tendency to be devious, shrewd, calculating, or cunning. To the contrary, the Respondent appears to be gullible and vulnerable to being taken advantage of, which tendencies may account for the circumstances which led to his conviction. The Respondent enjoys an excellent reputation in spite of his criminal convictions and probably would not be a danger to the real estate community if he were allowed to keep his license. The quality of the Respondent's reputation is reflected by the fact that in spite of his convictions, he is currently employed in another broker's real estate company and holds the positions of vice president and head of the commercial department. With the exception of the incident which led to his convictions, the Respondent appears to have demonstrated a high degree of honesty and integrity in his personal and business dealings. The Respondent has excellent teaching skills in the field of real estate and is probably one of the better technicians in the field of real estate.
Findings Of Fact George A. Heyen is a duly registered real estate salesman with the Florida Real Estate Commission, and was so registered and has been so registered continuously since October 1, 1972, as evidenced by Petitioner's Exhibit number 1. While serving in the capacity as a real estate salesman, the Respondent entered into a listing agreement with one Thomas S. Bowers and Brenda L. Bowers, his wife. This agreement was drawn on December 11, 1973 and is Petitioner's Exhibit number 4. On February 6, 1974, a purchase and sell agreement was drawn up by the Respondent and entered into between Maria A. Hindes and the Bowers. This purchase and sell agreement is Petitioner's Exhibit number 3. This contract of February 6, 1974 was submitted to Molton, Allen and Williams, Mortgage Brokers, 5111 66th Street, St. Petersburg, Florida. The contract, as drawn, was rejected as being unacceptable for mortgage financing, because it failed, to contain the mandatory FHA clause. When the Respondent discovered that the February 6, 1974 contract had been rejected, a second contract of February 8, 1974 was prepared. A copy of this contract is Petitioner's Exhibit number 5. The form of the contract, drawn on February 8, 1974, was one provided by Molton, Allen and Williams. When, the Respondent received that form he prepared it and forged the signature of Mr. and Mrs. Bowers. The explanation for forging the signatures as stated in the course of the hearing, was to the effect that it was a matter of expediency. The expediency referred to the fact that the parties were anxious to have a closing and to have the transaction completed, particularly the sellers, Mr. and Mrs. Bowers. Therefore, in the name of expediency the signatures were forged. Testimony was also given that pointed out the Bowers were very hard to contact in and around the month of February, 1974, and some testimony was given to the effect that the Bowers made frequent trips to Ohio, but it was not clear whether these trips would have been made in the first part of February, 1974. The Bowers discovered that their name had been forged when they went to a closing on April 11, 1974. They refused to close the loan at that time. On April 24, 1974, a new sales contract was followed by a closing which was held on April 26, 1974 and a copy of the closing statement is Petitioner's Exhibit number 6. The Respondent has received no fees or commissions for his services in the transaction and there have been no further complaints about the transaction. Prior to this incident, the Respondent, George A. Heyen, was not shown to have had any disciplinary involvement with the Florida Real Estate Commission and has demonstrated that he has been a trustworthy individual in his business dealings as a real estate salesman.
Recommendation It is recommended that the registration of the registrant, George A. Heyen, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George A. Heyen c/o Gregoire-Gibbons, Inc. 6439 Central Avenue St. Petersburg, Florida 33710
Findings Of Fact The Respondent is a real estate broker holding license number 0032735 issued by the Department of Professional Regulation, Board of Real Estate. His professional address of record is 2555 Enterprise Road, Suite 142, Clearwater, Florida 33515. In May, 1974, H. M. Hunter, Jr., entered into a contract for the sale and purchase of real estate from the Respondent, Geoffrey B. Gordon and Linda M. Gordon, his wife. This contract provided for the buyer, H. M. Hunter, Jr., to assume two mortgages. The first mortgage required annual payments of $5,000 plus interest of 7 percent on the unpaid balance, with the first payment to be due in March, 1975. The second mortgage called for annual payments of $2550 plus interest of 7 1/2 percent on the unpaid balance, with the first payment due in May of 1975. This transaction was consummated, and a warranty deed was issued by Geoffrey B. Gordon and his wife, Linda M. Gordon, to H. M. Hunter, Jr., dated July 5, 1974. On or about May 15, 1975, H. M. Hunter sent a check to the Respondent in the amount of $4,462.50, for delivery to Alma Young Laird, as payment of the second mortgage held by Laird on the property which Hunter had purchased from Gordon. The check was made payable to Geoffrey B. Gordon, and was endorsed and negotiated by him. This check was sent to the Respondent because Hunter did not know Laird's address, and the Respondent said he would see that Laird got it. On or about May 15, 1976, Hunter was contacted by an attorney for Laird who advised Hunter that Laird had not received the annual mortgage payment and that Laird was contemplating filing a foreclosure suit. Hunter attempted to locate the Respondent, but could not find him for two years. As a result, Hunter had to make the payment a second time, and incurred additional interest expense because the payment was not timely made. When Hunter finally located the Respondent, he found that the proceeds of the check had been converted to Gordon's own use because of his financial hardship. Since then, the Respondent has repaid approximately $4,000 to Hunter, but nothing has been paid as interest although at one time an interest rate of eight percent had been agreed upon.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Geoffrey B. Gordon, pay a fine of $1,000 within 30 days from the date of the Final Order herein. If the Respondent should fail to make timely payment of this fine, it is RECOMMENDED that license number 0032735, held by Geoffrey B. Gordon be revoked. THIS RECOMMENDED ORDER entered on this 29th day of April, 1981. WILLIAM B. THOMAS 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 29th day of April, 1981. COPIES FURNISHED: John Huskins, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Geoffrey B. Gordon 2555 Enterprise Road Suite 142 Clearwater, Florida 33515
Findings Of Fact On October 3, 1975, Respondent filed an application with Petitioner for registration as a real estate broker (Stipulation, Petitioner's Exhibit 2). That said application contained therein Question 8 which is set forth in paragraph 2 of the Amended Complaint and to which Respondent answered "No." (Stipulation, Petitioner's Exhibit 2.) That thereafter the application was approved and the Respondent subsequently received his registration as a real estate broker and has been continuously registered the Petitioner as a broker since December 22, 1975 (Stipulation.) That at the time of the execution of the application, as aforesaid, Respondent'S answer to Question 8 was incorrect in that he failed to reveal, disclose and fully explain a Complaint filed against him on August 6, 1973, in the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, by one Kenneth Beard, an individual, which complaint alleges false representations on the part of the Respondent in a business transaction. A judgment of the aforesaid Circuit Court in the above-mentioned action was in the process of appeal at the time Respondent filed his application for registration as a real estate broker (stipulation.) Respondent testified at the hearing substantially as follows: After the civil action had been filed against him, he sought the advice of counsel who informed him that the complaint therein was defective as a matter of law. He was therefore of the opinion that there was not a viable suit against him at the time he filled out his application, and thus was not attempting to mislead or hide any facts from the Petitioner. He also felt that, since he had not, in fact, committed any fraud or misrepresented any matters to the purchaser of the business in question, a negative answer on the question in the application was justified. However, upon reflection at the hearing, he conceded that, probably he had misread the question and misconstrued its meaning. Respondent's good reputation for truth and veracity in the community and in his business dealings was attested to by past officials of the Clearwater, Largo, Dunedin Board of Realtors (Testimony of Merhige, Blanton).
Recommendation That the Complaint against Respondent, William D. Folz, be dismissed. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard B. Moritz, Esquire 801 West Bay Drive Suite 704 Largo, Florida 33540
Findings Of Fact Respondent, Brian H. Morgenstern, holds and at all times material hereto held, Florida Real Estate Salesman's License No. 0320190. From February 4, 1983 to December 2, 1983, Respondent was licensed as a real estate salesman in the employ of E & I Realty, Inc. Mr. Ira Messinger was the qualifying broker for E & I Realty, Inc. On July 12, 1983, Respondent, purporting to act on behalf of E & I Realty, Inc., solicited and obtained a two-year lease agreement between Craig Brass, lessor, and James Joss, lessee, for condominium unit No. 705, Towers of Oceanview, 400 Leslie Drive, Hallandale, Florida. Pursuant to the express terms of the lease agreement, the lessee agreed to pay a monthly rental of $450.00 for the first year, and a monthly rental of $475.00 for the second year. In consideration for securing the lease agreement, Dr. Brass agreed to pay a broker's fee of $925.00, representing one month's rent for the first and second year of the term. Respondent delivered an E & I Realty receipt to Dr. Brass evidencing the receipt of the first month's rent, the last month's rent, and a security deposit, for a total sum of $1,375.00. From this $1,375.00 the receipt evidenced a deduction of $925.00 as a broker's fee, and delivery of the balance of $450.00 to Dr. Brass. There is disagreement between the parties whether the Respondent actually received $1,375.00 from Mr. Joss. Respondent insists that Mr. Joss, an acquaintance, could only raise $450.00 so be and Mr. Messinger "agreed" to forego receipt of the broker's fee of $925.00 and, in effect, loan such sum to Mr. Joss. There is, however, no promissory note or other memoranda to commemorate such an agreement. Mr. Messinger insists that his office made no such agreement, that he had no knowledge of the transaction, and that no monies were ever received by his office. Dr. Brass testified to a conversation on a speaker phone between Mr. Joss and the Respondent wherein the Respondent admitted receiving the funds. Further, Kenneth Rehm, an investigator for the Department of Professional Regulation, personally interviewed Respondent and the Respondent admitted he had collected the full $1,375.00 and that be had retained $925.00 as a broker's fee. Respondent further insists that his version of the incident is given credence by the commission structure he had with Mr. Messinger. Under their agreement, Respondent was to receive 90 percent of any commission earned on business he produced. Therefore, Respondent argues, it would be "foolish" for him to risk his license for $92.50 (10 percent of the $925.00 commission). While Respondent's argument appears at first blush to have merit, the value of money is relative. On February 23, 1984, Respondent entered into a written agreement with Dr. Brass to pay him $350.00 within 17 days in consideration of which Dr. Brass would not file any complaints with anyone, including the Department of Professional Regulation. Respondent did not have the funds necessary to pay Dr. Brass, and in point of fact has never paid Dr. Brass. If Respondent did not have $350.00 to circumvent these proceedings, then $92.00 may well have been of import to him. The clear and consistent testimony of Dr. Brass, Ira Messinger, and Kenneth Rehm, Respondent's conflicting statements and testimony together with his demeanor, render Respondent's testimony inherently improbable and unworthy of belief. Accordingly, the Hearing Officer finds that the Respondent did in fact receive $1,375.00 from Mr. Joss, that he delivered $450.00 to Dr. Brass, and retained $925.00 for his own use and benefit without the knowledge or consent of his registered broker.
