The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact The Defendant was at all material times registered with tie Florida Real Estate Commission as a real estate salesman in the employ of Razook Real Estate, Inc. Razook Real Estates Inc. is a duly registered real estate broker. During 1973, the Defendant negotiated the sale of a business known as Carvel Ice Cream Supermarket number 1034, located in Riviera Beach, Florida, between Philip Caruso and Dorothea Caruso, as sellers, and Beverly Barratt, as purchaser. The Carusos and Ms. Barratt entered into a Purchase and Sale Agreement on May 14, 1973. (See: Defendant's Composite Exhibit 1). The agreement included assignment from the sellers to the purchaser of a lease covering the property on which the business was located. The lease assignment was incidental to the sale of the business, and was not a prime factor in the transaction. The Defendant negotiated the sale as a business broker employed by Rabern Business Associates, Inc., and not as a real estate salesman employed by Razook Real Estate, Inc. The Defendant was not registered with the Florida Real Estate Commission as a real estate salesman for Rabern Business Associates, Inc. When she signed the contract on May 14, 1973, Ms. Barratt delivered to the Defendant a $4,060 check made out to Rabern Business' Associates, Inc. which amount was to serve as a deposit. The contract provided that the sale would be subject to the approval of Carvel Corporation the franchisor of the business. On August 15, 1973, the transaction between the Carusos and Ms. Barratt was closed, except that the approval of Carvel Corporation had not yet been received. It was the clear understanding of the parties that the approval of Carvel Corporation was essential and that the closing was conditional upon that approval. The sellers were represented at the closing by Attorney Walter Colbath. Ms. Barratt was represented at the closing by Attorney Gustave Broberg. Shortly after the closing, Ms. Barratt went to New York to participate in a training program offered by Carvel Corporation for franchisees. Carvel Corporation would not approve the transaction unless the new franchisee completed this program. Upon her arrival in New York, Ms. Barratt was advised by representatives of Carvel Corporation that the Carusos owed Carvel Corporation more than $8,000, which amount was not reflected in the agreement between the Carusos and Ms. Barratt nor in the closing statement dated August 15, 1973. This is the first occasion upon which Ms. Barratt was apprised of this indebtedness on the part of the Carusos to Carvel Corporation. Carvel Corporation reluctantly permitted Ms. Barratt to participate in their training program with the hope that a resolution of the indebtedness could be made. Carvel Corporation would not approve the agreement between the Carusos and Ms. Barratt unless an arrangement was made respecting the indebtedness. When Ms. Barratt returned to Florida, negotiations respecting the $8,000 commenced, and although at one juncture the parties were close to an agreement, no final resolution was reached. The transaction was therefore not concluded. At no time did Carvel Corporation approve the sale as set out in the contract of May 14, 1973, or in the closing statement dated August 15, 1973. On October 23, 1973, Mr. Broberg, representing Ms. Barratt, wrote to Mr. Colbath, the attorney for the Carusos, stating that the transaction could not be consumated, and demanding that monies held by Attorney Colbath be returned to Ms. Barratt. He further stated in the letter: "It would be appreciated if you would forthwith inform Mr. Ralph J. DePaola of Rabern Business Associates, Inc. that the sale has terminated and request that he return the $4,000, which he is holding, to Mrs. Barratt." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). On December 19, 1973, Mr. Colbath wrote to Mr. Broberg concerning monies that had been held by him, and with respect to the monies held by Mr. DePaola stated as follows: "The balance of $4,000 that was originally deposited with Mr. DePaola has, as you know, been retained by him as his commission. I am by copy of this letter informing Mr. DePaola what has transpired since we last talked and ask that you contact him directly." A copy of this letter was sent to Mr. DePaola. (See: Defendant's Composite Exhibit 1). No further demands were made by Ms. Barratt, or on her behalf, to the Defendant for the return of the $4,000. The Defendant did not have any agreement with Ms. Barratt that Ms. Barratt would be responsible to pay any commission to the Defendant. Four thousand dollars is listed on the August 15, 1973 closing statement as a sellers' expense. Mr. DePaola testified at the hearing that he considered the matter closed as of August 15, 1973; however, Mr. DePaola did know, or should have known, that approval by Carvel Corporation had not been obtained, and was necessary. Mr. DePaola has retained the $4,000, and it has not otherwise been returned to Ms. Barratt. The Defendant was not aware of the additional $8,000 obligation which the sellers owed Carvel Corporation on May 14, 1973, when the Purchase and Sale Agreement was signed, or on August 15, 1973, when the transaction was preliminarily closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Count I of the Information against Ralph J. DePaola be dismissed. That Count II of the Information against Ralph J. DePaola be dismissed. That Count III of the Information against Ralph J. DePaola be dismissed. RECOMMENDED this 24th day of February, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact From December 12, 1975, to June, 1976, Steiner was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners where names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. Steiner, although a salesman and not a broker, was the person responsible for running the operations of the FAR. A Mr. Lawrence Mann was employed as a figure-head broker for FAR and named as its president. Mann's only duties were to insure that all salesmen employed were properly licensed with the Real Estate Commission. Steiner hired and fired salesmen, sometimes took over difficult listing cases, provided the preplanned sales pitch for the salesmen and generally supervised the over-all operation. Steiner had a monitor in his office so that he could listen in on telephone calls being made to prospective clients. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. However, Steiner would set the listing price for the property after receiving a description of the property from the salesman. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Steiner. FREC introduced no evidence to show that Steiner represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Steiner either made the representations or knew them to be false. There was no evidence introduced to show that Steiner knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Steiner was dishonest or untruthful.
The Issue The issue presented for decision herein is whether or not Respondent's real estate license should be disciplined based on conduct, set forth hereinafter in detail, which is specifically alleged in an Administrative Complaint filed herein dated June 24, 1987.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. At all times pertinent to the charges herein, Respondent was the holder of a Florida Real Estate license and operated as a real estate broker. (Petitioner's Composite Exhibit 1 and Stipulation of the parties). On October 17, 1985, Respondent obtained four exclusive listing agreements from John S. Blosnick (Blosnick) for warehouses he owned located in Miami, Florida. (Petitioner's Composite Exhibit 2). Respondent was unable to find a buyer for the units and instead leased them to Jim Gardner and V.I.P Car Care pursuant to a business lease entered into on July 22, 1986. During the time, Blosnick was experiencing financial difficulties and needed someone to either purchase or lease the premises. The lease specified that Mr. Gardner would use the premises for the manufacture and repair of cars and boats. (Petitioner's Exhibit 3). During the fall of 1986, a company that Respondent was affiliated with and served as President, Reaction Marine, Inc., took over the rental units and began constructing boat hulls from fiberglass resin. At this time, Reaction Marine erected a sign outside the warehouses where it remained during the time of the instant hearing. (Petitioner's Exhibit 4). On January 6, 1987, Respondent's bookkeeper, a Mrs. Bryant, issued a check for payment of rent drawn on the account of Reaction Marine, Inc. to John Blosnick for $945.00. The check was subsequently returned for insufficient funds. That check remains unpaid as of the date of hearing. After Reaction Marine began occupancy of the Blosnick warehouses, Respondent and Jim Gardner had a dispute and Gardner is no longer affiliated with Reaction Marine. Respondent who owned the molds for boat manufacturing, continued to store the molds in the leased warehouses. During the time when Respondent obtained the exclusive listing agreement to sell the warehouses for Blosnick, they were good friends and Blosnick frequented Respondent's office and home two to three times per week. Respondent is an entrepreneur of sorts and owns three bars and various and sundry other businesses in the Miami area. Respondent and Blosnick often talked about different business ventures as Blosnick was interested in pursuing business ventures with Respondent. As early as the fall of 1986, Blosnick was aware that Respondent was affiliated with Reaction Marine, Inc., and that Reaction Marine thereafter occupied the subject warehouse. Respondent has offered to make good on the check which was returned for insufficient funds against the account of Reaction Marine, Inc., however that offer is contingent upon Blosnick's tender of the check to Respondent upon payment. Blosnick has requested that payment be made to a third party and has not offered to tender the check to that third party simultaneous with Respondent's tender of payment to make good on the returned check. Respondent has attempted to clean the floors of the warehouses by removing the resins, epoxys, and gel coats caused by Reaction Marine, Inc. This was done during January and February, 1987 by Respondent using the assistance of an acquaintance, Heather Rockcastle, who was involved with the cleaning of the warehouse and restoration of the floors to their original condition. The cleanup process took more than one day. In Respondent's second attempt to gain entry to the warehouses, Blosnick had hired a locksmith to change the locks and thereby prevented Respondent from gaining entry. The lease agreement entered into by Blosnick and VIP Car Care specifies that the property was to be used and occupied as a place for car and boat manufacture/repair. (Petitioner's Composite Exhibit 3). Pursuant to the terms of that business lease, VIP Car Care was authorized to assign or sublet the premises for the usage here which was consistent with the usage for which VIP Car Care leased the premises. (Petitioner's Composite Exhibit 3, first stipulation and condition of the business lease).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 11th day of May 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. COPIES FURNISHED: Steven W. Johnson, Esquire Contract Attorney DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mark Weissman, Esquire Katz and Weissman 300 Aragon Avenue Suite 330 Coral Gables, Florida 33134 William O'Neil Esquire General Counsel Department of Professional Regulation 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact I.Z. Mann Realty Corporation was at all times material to this proceeding a corporation registered as a real estate broker with the Commission, with its principal business address at 240 North Washington Boulevard, Sarasota, Florida, 33577. Irving Z. Mann was at all times material to this proceeding a real estate broker registered with the Commission, and the holder of two registration certificates: one as an individual broker with an office at 2197 Princeton Street, Sarasota, Florida 33577; and the other license as president and active broker of I.Z. Mann Realty Corporation. Stanley M. Robbins was at all times material to this proceeding a registered real estate salesman in the employ of I.Z. Mann Realty Corporation. At all times material to this proceeding Fritz K. Grolock was a registered real estate salesman, and from April 12, 1972, to February 2, 1976, he was registered with the Commission as a real estate salesman in the employ of I.Z. Mann Realty Corporation. From February 2, 1976, to November 29, 1976, Mr. Grolock was registered with the Commission as a real estate salesman in the employ of I.Z. Mann & Associates, Inc. At all times material to this proceeding Irving Z. Mann was president, and Stanley M. Robbins was vice president, assistant secretary, treasurer and general sales manager of I.Z. Mann & Associates, Inc., a Florida corporation which was the owner and developer of the Palma Sola Harbor condominium development in Sarasota County, Florida. On or before February 4, 1976, Mr. Grolock and Mr. Robbins had agreed that Mr. Grolock would receive for his services as a real estate salesman for I.Z. Mann & Associates, Inc. a three percent commission based upon the sales price of individual condominium units sold at Palma Sola Harbor. Commissions were to be paid to Mr.Grolock at the end of the month in which the sale of each such unit was consummated. Mr. Robbins explained to Mr. Grolock at the time of this agreement that I.Z. Mann & Associates, Inc. was short of cash, and that should Grolock make any sales, he might have to wait for some indefinite period of time to receive his commission. Mr. Grolock indicated his willingness at the time to proceed on that basis. No testimony was adduced, and no documentary evidence was offered to establish that Mr. Grolock was employed by I.Z. Mann Realty Corporation, Inc., at any time material to the allegations contained in the Administrative Complaint. During the course of his employment as a real estate salesman with I.Z. Mann Realty Corporation, Inc. Mr. Grolock solicited and obtained a real property sales contract between Elmer C. Sutter and Ruth W. Sutter, as purchasers, and I.Z. Mann Realty Corporation, Inc., as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $26,450, and the evidence established that Mr.Grolock is due, and has not been paid, a commission of $793.50 for that sale. During the course of his employment as a real estate salesman with I.Z. Mann & Associates, Inc., Mr. Grolock solicited and obtained a real property sales contract between Martin G. Tepatti and Dorothy L. Tepatti, as purchasers, and I.Z. Mann Realty Corporation, Inc., as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $37,450, and the evidence established that Mr. Grolock is due, and has not been paid, a commission of $1,123.50 for that sale. During the course of his employment as a real estate salesman with I.Z. Mann Realty Corporation, Inc., Mr. Grolock solicited and obtained real property sales contract (Petitioner's Exhibit #1) dated April 29, 1976, between Donald F. Brown and Barbara S. Brown, as purchasers, and I.Z. Mann Realty Corporation, Inc. as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $37,450, and the evidence established that Mr. Grolock is due, and has not been paid, a real estate commission of $1,123.50 for that sale. Mr. Grolock did not attend the closing of any of the three transactions referenced above and described in the Administrative Complaint. However, the only evidence of record establishes that these transactions resulted in "negative closings" that is, after deductions of amounts due on the pre-existing construction mortgage, charges for documentary stamp taxes, tax pro-rations and the like, no funds remained for disbursement to I.Z. Mann Realty Corporation, Inc. for payment to Mr. Grolock as a commission. Neither Mr. Mann, Mr. Robbins, I.Z. Mann Realty Corporation, nor I.Z. Mann & Associates, Inc. received any funds at the closing of these transactions. Some time after the closings of the three transactions described in the Administrative Complaint, Mr. Grolock spoke with Mr. Robbins concerning non- payment of his commissions. Mr. Robbins explained t6hat the three transactions had resulted in "negative closings," but that if Mr. Grolock would be patient he would be paid his commissions in due course. Mr. Robbins discussed the commissions once or twice thereafter with Mr. Grolock, each time explaining that the company was short of money but that Mr. Grolock would be paid eventually. Because of poor market conditions in the condominium industry, I.Z. Mann Realty & Associates experienced financial problems which ultimately resulted in the company's insolvency. The company eventually voluntarily relinquished its assets to creditors, or had its interest in those assets foreclosed, and at the present time is no longer actively engaged in business. By letters to Mr. Robbins dated December 7, 1976, and January 19, 1977, (Petitioner's Exhibit #2) Mr. Grolock demanded that some arrangements be made for payment of his past due commissions. When he received no reply to these letters, Mr. Grolock sent a letter (Petitioner's Exhibit #2) to Mr. Mann dated April 25, 1977, listing the transactions which resulted in $3,040.50 being owed to him for real estate commissions. Shortly after receiving this letter, Mr. Mann telephoned Mr. Grolock, on May 5, 1977, and told him ". . . the company had been inactive for a long time, but that I would see to it that he would get paid eventually. Just give us a chance to get some money to do it." (Transcript, p. 63). Mr. Grolock agreed at that time to wait for payment of his commissions. Some time after his May 5, 1977, telephone conversation with Mr. Mann, Mr. Grolock filed a complaint with the Commission ". . . [b]ecause I found no other recourse. . . [t]o obtain my commission . . . ." (Transcript, p. 26).
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violations of Sections 475.25(1) (a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florida Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent James Henkel appeared at the hearing after it had commenced unaccompanied by legal counsel. The Hearing Officer advised him of his rights in the administrative hearing. Respondent Henkel is a registered non-active real estate sales percentian, and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 4).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwin who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James H. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for it. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to, sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to' assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that the property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowner "service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, in fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent James Henkel be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James Henkel c/o Dory Auerbach 456 Northeast 29th Street Miami, Florida 33137
The Issue Whether Respondent committed various violations of Chapter 475, Florida Statutes, sufficient to justify the imposition of disciplinary measures against her license as a licensed Real Estate Salesperson.
Findings Of Fact Respondent Barbara Gordon Schneider, at all times material to this matter, was a licensed Florida Real Estate Salesperson, holding license no. 0481077 with an address of 5825 Indian Trail, Keystone Heights, Florida 32656-9773. As a consequence of previous disciplinary action, Respondent’s license has been suspended since February 17, 1995, due to non-payment of a fine. Basically, that case revolved around a finding of Respondent’s guilt of culpable negligence and operating as a broker while licensed as a salesperson. Respondent did not inform her then current employer, Coursey and Associates Real Estate (Coursey and Associates) of the February 1995 suspension of her license. Additionally, as documented by a certified copy of judgment admitted at final hearing as Petitioner’s Exhibit 2, Respondent also failed to notify Petitioner of Respondent’s plea of guilty to a felony charge of obtaining property in return for a worthless check in the Fourth Judicial Circuit, Clay County, Florida, on December 19, 1989. Adjudication was withheld by the Court and Respondent was placed on probation for 18 months. On or about July 14, 1995, while employed as office manager and selling manager for Coursey and Associates, Respondent prepared a contract for sale and purchase for Flint and Jessica Banther as buyers for property located at 2276 Chablis Court, West, Orange Park, Florida. Also, Respondent negotiated an occupancy agreement whereby the Banthers agreed to rent the property they were planning to purchase. Kevin Coursey, the broker for Coursey and Associates, had no knowledge of this transaction although Respondent signed the occupancy agreement on behalf of Coursey and Associates. On or about July 14, 1995, the Banthers gave Respondent a $500 cash binder for the purchase of the Chablis Court property. The money was not turned over to her employer by Respondent. Respondent had previously procured, on or about May 17, 1995, a listing agreement on behalf of Coursey and Associates for a home owned by Gary J. and Agnes Beagles which was located at 4854 Gopher Circle North, Middleburg, Florida. Respondent rented the Beagles’ home to Christine and Jim Weaver, without the knowledge or permission of Kevin Coursey on behalf of Coursey and Associates. Coursey and Associates were not in the business of brokering rental property and had no insurance to cover such activity. Respondent was accepting checks from the Weavers and depositing them into the Beagles’ bank account. On or about June 23, 1995, Christine Weaver made check no. 2952 in the amount of $250 payable to Coursey and Associates. Respondent endorsed the check by writing “Coursey & Assoc.” On the back of the check and signed her name with “co-owner” written under her name. Kevin Coursey did not authorize Respondent to endorse the check. Respondent never informed Kevin Coursey of the check’s existence and deposited it into her personal bank account at the Jax Navy Federal Credit Union without Coursey’s authorization. Respondent also procured renters for the Weavers’ home without the knowledge and consent of her employer. Initially, Robert and Pamela Campbell, the renters of the Weaver home, gave Respondent a check which was returned for insufficient funds. When the check was returned, the Campbells gave Respondent cash in the amount of $600 in place of the check. Respondent did not turn the cash over to the Weavers and, as a result, Coursey and Associates were later compelled to pay the Weavers the $600. Sometime around July 26, 1995, Respondent prepared a contract for sale and purchase for Charles Crum as the buyer of property located at 5615 Indians Trail, Keystone Heights, Florida. Crum gave Respondent a binder for the property consisting of three money orders totaling $500. The money orders were payable to Coursey and Associates, but Respondent did not deliver the funds to her employer. Approximately three weeks later, Respondent did deliver the binder, in the form of a different set of money orders, to Kevin Coursey. At some point prior to July 30, 1995, Respondent negotiated the rental of property owned by Mr. and Mrs. Richard J. Connell. The renter was James Cawley. This was accomplished without knowledge or consent of Kevin Coursey, although Respondent led the Connells to believe that the property was being rented through Coursey and Associates. The Connells never received the cash security deposit paid to Respondent by Cawley. By letter dated September 19, 1995, Richard J. Connell and James L. Cawley informed Coursey and Associates of Connell’s entry into a rental agreement with that firm on February 25, 1995. Respondent had negotiated the agreement which provided that Cawley would initially rent the property for $350 a month until he established credit for the purchase. Respondent, it was agreed, on behalf of Coursey and Associates, would collect the rent every month. Coursey and Associates would receive a ten percent commission on the rental proceeds and also retain $65 per month in escrow for repairs. Respondent signed the Connells’ names to the agreement without their consent. Respondent left the employ of Coursey and Associates, without notice, on or about July 30, 1995, and contacted Martha J. O’Shields, co-broker for Century 21 Bryant and O’Shields Realty, about coming to work for O’Shields. Respondent did not tell O’Shields that Respondent’s salesperson license was suspended. O’Shields hired Respondent. On or about August 2, 1995, Respondent negotiated a contract for sale and purchase of the property owned by the Beagles. Coursey and Associates were, of course, the listing agents. Instead of presenting the offer to Coursey and Associates, Respondent presented the offer directly to the owners. Respondent signed the contract on behalf of Coursey and Associates, although she was then working for O’Shields. Respondent had the buyers of the property sign a consent to dual agency although she was not acting as a dual agent and had not been authorized by O’Shields to present the offer in this fashion. On or about August 2, 1995, Respondent proceeded to list the buyers’ property located at 1594 Twin Oaks Drive West in Middleburg, Florida, on behalf of Bryant and O’Shields. O’Shields discovered on or about August 15, 1995, that Respondent had taken all files upon which she was working from the office. By letter dated August 18, 1995, O’Shields notified Petitioner that she had terminated Respondent’s employment on August 15, 1995. According to O’Shields’ notification, Respondent had sales pending and O’Shields had not been previously aware of Respondent’s license suspension.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding Respondent guilty of counts I through V, counts VII through VIII, counts X through XII, counts XV through XVI, and counts XIX through XXI of the Administrative Complaint and revoking Respondent’s license. DONE AND ENTERED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801-1772 Barbara Gordon Schneider 5086 Granny's Place Keystone Heights, Florida 32656 James Kimbler, Acting Director Division of Real Estate Department of Business and Professional Regulation 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
Findings Of Fact The Defendants, Barry Shelomith and Isaac Shelomith, son and father, respectively, were, during times material to the allegations filed herein, registered with the Commission as real estate salesmen with Alan Leavitt, a registered real estate broker, who maintains offices at 1110 N.E. 163rd Street, Suite 345, Miami Beach, Florida 33162. Defendant Barry Shelomith sometimes identifies himself as a "Mr. Barry", also being publicly known by such pseudonym, and Defendant Isaac Shelomith sometimes identifies himself as "I.B. Shelly" and is also publicly known by that pseudonym. During the period between March 15, 1975 and November 15, 1975, the Defendants, Barry Shelomith and Isaac Shelomith, jointly and/or severally and for their own accounts or for the accounts of others, negotiated the sale of a number of platted, unimproved lots located in a subdivision near DeFuniak Springs in Walton County, Florida and identified as Country Club Heights, Northeast, in Plat book 3, Page 21, Walton County, Florida. In negotiating for the sale of the lots, the Defendants placed various ads in Florida newspapers as an inducement for sale. Typical of such ads is the following: OWNER SACRIFICE Seven Mobile and Camping lots on Spring Lake. Boating, fishing, swimming. Electricity, water available. Only $375 each lot. Cash only. Call Owner, 931-1809 after 6 PM for appointment. (See Commission's Exhibit #6). Donald Vesey and his wife Jeanette Vesey purchased two lots from the Defendants based on an inducement prompted by a newspaper ad cause to be published by the Defendants. Mr. Vesey testified that Isaac Shelomith advised him that the lots were easily accessible; that owners could drive to their lots and that the lots were platted and that electricity and water was available. The Veseys were given warranty deeds for the lots during early April, 1975, and thereafter they attempted to see the lots during a visit to Defuniak Springs. The Veseys stated that they were unable to see the lots because they are "completely surrounded by privately owned property and there is absolutely no access to this property". However, the adjoining land owner, a Mr. Strickland, showed them approximately where their property was situated and was further able to show them that their property was "land-locked". Mr. Vesey testified that there were no access roads to the property and that the surrounding area is heavily wooded. (See Commission's Exhibits 3 & 4). Cynthia and Charles Derditsch, husband and wife, also purchased a lot from Defendant, Barry Shelomith, who advised that the property was accessible to the lake and Mr. Derditsch, based upon this representation, considered the property to be a good investment. Carl and Francis Milam also purchased property from the Defendants which was located in Walton County. Mrs. Milam testified that Isaac Shelomith told her the lot sizes were approximately 25 by 150 feet, however, she testified that she later learned that the property was smaller. Mrs. Milam's testimony in this regard is unspecific inasmuch as she could not either confirm or deny the lot sizes because she did not view the property and her husband had no recollection of the transaction involving the purchase of the property. George A. Torrence, also purchased a lot from the Defendants which he was unable to see because there was no easy access. He went to Spring Lake, the adjoining property, and the land owner, Mr. Strickland denied his access. To the best of his recollection, he testified that a Mr. Astor, who accompanied Defendant Barry Shelomith, made all the representations regarding the amenities of the property. Defendant Barry Shelomith told him that he represented Miami Sunshine, Inc., an active Florida Corporation to which he (Torrence) tendered the purchase price for the property. His testimony is that Barry Shelomith advised that his uncle, Ben Mione, was President of Miami Sunshine, Inc. (See Commission's Exhibit #12). Mr. Torrence also recalled that the property was represented to be 50 by 100 feet whereas in actuality it only measured 25 by 100 feet. Barry Shelomith testified that there were two means of access to the property in question. One mean was through the adjoining landowner's property and the other is through the use of a heavily wooded area off State Road #183. He testified that the plat map which was provided to all prospective purchasers was given them (the Defendants) by Budget Systems, Inc., the former owner and that the plat map was certified by a licensed surveyor. He denied any intent to defraud prospective purchasers by using the pseudonym "Mr. Shelly" instead of his last name which means "peace" in the Jewish community. He testified that by utilization of the word "Shalom" would possibly hinder his sales efforts outside the Jewish community. He denied any attempt to conceal his last name and admitted that he was not registered with the Commission as being employed by anyone other than his then registered broker, Alan Leavitt. He further admitted that the pseudonym "Shelly" was not registered with the Commission. While he admitted to directly selling the property of an owner while having his license registered with the Commission through broker Alan Leavitt, he saw no violation in this instance inasmuch as the property was owned by his uncle. He opined that this was permissible inasmuch as an owner was free to sell less than 49 parcels and secondly that the property owner in question here was a blood relative i.e., his uncle.
Recommendation Based on the foregoing findings and fact and conclusions of law, it is hereby, RECOMMENDED as follows: That the Defendant, Barry Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years. That the Defendant, Isaac Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years. That the complaint in all other respects be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1977. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 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 March, 1977. COPIES FURNISHED: Richard Morgentaler, Esquire 1600 NE Miami Gardens Drive Greater Miami Beach, Florida 33179 Bruce I. Kamelhaire, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact From December 29, 1975, to January 13, 1976, Reed was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters or qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. Respondent's correct name is Daniel L. Reed and no evidence of pseudonyms or aliases was introduced. While there was evidence introduced to indicate that a Mr. and Mrs. Norman G. Schmidt of McLean, Virginia, had telephone conversations with a representative of FAR named Reed, the first names do not coincide. The Schmidts testified that the first name of the Reed that they talked with was Ben and not Daniel. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Reed. FREC introduced no evidence to show that Reed represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Reed either made the representations or knew them to be false. There was no evidence introduced to show that Reed knew than no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Reed was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Reed was guilty of a violation of a duty imposed by law.
