The Issue The issue in this case is whether the real estate license issued to the Respondent, Kenneth A. Norberg, should be revoked or otherwise disciplined based upon the acts alleged in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Kenneth A. Norberg, was a licensed real estate broker in the State of Florida having been issued License Nos. 0143669 and 0243001 in accordance with Chapter 475, Florida Statutes. The last licenses issued to Respondent were as a broker t/a Arden Real Estate Associates, 525 West Lantana Road, Lantana, Florida 33462. Respondent operates both an insurance business and a real estate business out of his office. There is a large sign outside the office near the street that indicates both "INSURANCE" and "REAL ESTATE" in large letters. Beneath those words in smaller print, are the words "Arden Insurance" Association and "Ken Norberg Real Estate". This sign is reflected in Respondent's Exhibit 1 and has been in place for approximately fifteen years. Sometime prior to March of 1989, Joe Ann Shoop was awarded ownership of a corporation known as Jerraang Enterprises, Inc. as part of a divorce settlement. That corporation owned certain property located at 7967 Overlook Road, Hypoluxo, Palm Beach County, Florida. There are two small cottages located on the property. Ms. Shoop's attorney is an officer of the corporation, but it is not clear whether he is a stockholder. Ms. Shoop visited Respondent's office in order to inquire about insurance for the property. While she was in Respondent's office, Ms. Shoop asked Respondent if he would be interested in listing the property for sale. She explained that she did not need the property and was anxious to sell it in order to get some cash. Respondent agreed to list the property. Sometime in March of 1989, Respondent received an offer to purchase the property from Bernadette Butler. Included with that offer was a $500.00 earnest money deposit. Respondent placed the $500.00 deposit into his escrow account maintained at the Bank of South Palm Beaches, Hypoluxo, Florida. Ms. Shoop accepted Ms. Butler's offer and a contract was agreed upon in March of 1989 with an anticipated closing date in May of 1989. The contract price was $30,000. The specific terms of that initial contract have not been established. Neither party offered the contract into evidence at the hearing. The parties agreed to extend the closing date of that contract and a new written contract was entered on June 23, 1989. That new contract indicated that the closing was to take place on July 26, 1989. The second contract provided that the sale was contingent upon the purchaser obtaining financing in the amount of $21,000.00. The purchaser was unable to arrange financing and the transaction failed to close by July 26, 1989. The parties verbally agreed to extend the contract, however, the evidence is inconclusive as to how long an extension was agreed to. By October of 1989, it became clear that the transaction would not close. At that time, Ms. Shoop demanded the deposit and began efforts to sell the property to someone else. Ultimately, the property was sold at auction for $15,000. Ms. Shoop claims that she was not advised and would not have agreed to a contract that was contingent upon the buyer obtaining financing. As indicated above, the terms of the first contract have not been established. However, it is clear that the second contract did provide a contingency for financing. On October 31, 1989, Respondent sent a letter to Ms. Butler indicating that Ms. Shoop had requested the release of the deposit to her. Respondent enclosed a copy of a Release of Deposit Receipt form for Ms. Butler to execute. Ms. Butler did not execute the form and/or authorize the release of the deposit to Ms. Shoop. Respondent retained the deposit in his escrow account for several more months. During this time, Ms. Butler continued her attempts to obtain financing and also began searching for additional properties. Ms. Butler indicated to Respondent her intention to apply the money held in escrow to any new purchases that may arise if the contract with Ms. Shoop did not close. On several occasions in late 1989 and early 1990, Ms. Shoop attempted to contact the Respondent and determine the status of the escrow money. Respondent did not answer her inquiries. On September 10, 1990, an investigator from the Department visited Respondent's office to conduct a random audit of Respondent's business and his escrow account. During this audit, the investigator discovered the deposit being held in escrow without a current contract. She advised Respondent that he needed to be sure to comply with the requirements of Section 475.25(1)(d), Florida Statutes and Rule 21V-10.032, Florida Administrative Code. In October of 1990, the Respondent sent a letter to both Ms. Butler and Ms. Shoop enclosing a Release of Deposit Receipt form pursuant to which he suggested that the parties divide the deposit equally. Respondent sent a copy of this letter to the Department to notify it of his attempt to resolve the dispute over the deposit. By letter dated October 11, 1989, Gerri E. Barnoski, an analyst for the Florida Real Estate Commission, (the "Commission") advised Respondent of his options. In this letter, Ms. Barnoski told Respondent that he had to either (1) arrange for arbitration, (2) place the matter before a civil court or (3) request an Escrow Disbursement Order from the Florida Real Estate Commission. The Respondent subsequently requested an Escrow Disbursement Order from the Florida Real Estate Commission and the matter is currently pending resolution by the Commission in Case No. E902949. The deposit remains in Respondent's escrow account. In sum, the evidence demonstrated that Respondent failed to promptly notify the Commission of the conflicting demands to the escrow deposit. Respondent claims that he never received a formal written demand from either party. However, the evidence is clear that by at least October of 1989, Respondent was aware of the conflicting demands for the deposit. After delay of approximately one year, Respondent finally attempted to resolve the matter in an appropriate manner. Respondent says he was concerned that attorney's fees would consume the entire deposit. However, this concern does not excuse the delay. There is no indication that Respondent was manipulating the transaction for his own personal gain and/or that he was trying to defraud either party. There is no indication that Respondent ever used the escrow account for improper purposes or withdrew money from the escrow account for his own personal or business use. At the time Petitioner's investigator visited Respondent's office in September of 1990, there was no sign immediately outside the entrance door to Respondent's office. The large sign alongside the roadway (which is described in Finding of Fact 2 above) was in place and there was a trademark indication of a Realtor on the entrance door. However, a sign which had previously been on the wall immediately next to the entrance door was missing. The evidence established that the sign at the entrance door was temporarily missing due to unusual circumstances. Respondent was in the middle of a hotly contested divorce. Respondent and his former wife had previously worked out of the office together. The sign next to the entrance door had both of their names on it. Respondent taped over the name of his former wife and the sign was subsequently vandalized. Respondent had delayed obtaining a new sign until the divorce proceedings were concluded. The evidence indicates the road side sign was in place approximately fifteen feet from the entrance. Visitors to the office were sufficiently alerted to the identity of the real estate broker within. In view of all the circumstances, Respondent was not in violation of the requirement that he have a sign on or about the entrance to the real estate office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order finding Respondent not guilty of the allegations contained in Count I of the Administrative Complaint, finding Respondent guilty of Counts II and III, reprimanding him, placing him on probation a period of one year and imposing a fine of $250.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. J. STEPHEN MENTON 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 24th day of June, 1991. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 7. Subordinate to Findings of Fact 9-15. Subordinate to Findings of Fact 15-18. Adopted in substance in Findings of Fact 17. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as irrelevant. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 2 and 21. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 7-15. Subordinate to Findings of Fact 11. Subordinate to Findings of Fact 10-17. Adopted in substance in Findings of Fact 17. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Kenneth A. Norberg Arden Real Estate Associates 525 West Lantana Road Lantana, Florida 33462 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the matters involved herein; Petitioner held Florida real estate salesman's license number 0403224. Her license was listed with Century 21 ACR Equities; Inc., 4222 W. Fairfield Drive, Pensacola; on May 25; 1983. On March 4, 1985, Respondent listed her license with Century 21; Five Flags Properties; Inc., in Pensacola, without terminating her listing with ACR Equities. On March 22, 1985, Five Flags terminated her listing with that firm and on April 30; 1985, ACR Equities terminated her listing with that firm. On May 14; 1985; Respondent applied for a change of status to list her license with Old South Properties; Inc., in Pensacola. That firm terminated the association on July 9, 1985. On March 19; 1985; Emmison Lewis and his wife; Lillie Mae signed a handwritten sales agreement prepared by Respondent for the purchase of a piece of property located in Escambia County; for $33,000.00. The Lewises gave her a deposit of $500.00 by check made payable to Respondent and which bears her endorsement on the back. This check was made payable to Respondent because she asked that it be made that way. Several days later; Respondent came back to the Lewises and asked for an additional $1,500.00 deposit. This was given her, along with a rental payment of $310.00; in a $2,000.00 check on March 29, 1985. Respondent gave the Lewises the balance back in cash along with a receipt reflecting the payment of the $1,500.00. On that same date; Respondent had the Lewises sign a typed copy of the sales agreement which reflected that both the $500.00 deposit and the additional $1,500.00 were due on closing. This typed copy was backdated to March 19; 1985. Both the handwritten and typed copies of the sales agreement bear the signature of the Respondent as a witness. The sale was never closed and the Lewises have never received any of the $2;000.00 deposit back. On about four different occasions, Mr. Lewis contacted Respondent requesting that she refund their money and she promised to do so, but never did. They did, however, receive the $310.00 rent payment back in cash approximately two weeks later. On April 26, 1985, James E. Webster and his wife Pearlie signed a sales agreement as the purchasers of real estate with Respondent. This property had a purchase price of $31,900.00. At the time of signing, Mr. Webster gave Respondent $150.00 in cash and a check drawn by his wife on their joint account for $400.00. Due to Mrs. Webster's change of mind, the Websters did not close on the property. They requested a refund of their deposit and Respondent gave the Websters a check for $400.00 which was subsequently dishonored by the bank because of insufficient funds. The Websters called Respondent at home several times, but she was always out. Calls to the broker with whom her license was placed were unsuccessful. Finally, however, Respondent refunded the $400.00 to the Websters in cash. Respondent had listed her license with ACR Equities in May, 1983. At no time while Respondent had her license with Mr. Bickel's firm did she ever turn over to him as broker either the $2.000.00 she received from the Lewises or the $550.00 she received from the Websters. Mr. Bickel, the broker, was not aware of these contracts and did not question her about them. He terminated the placement of her license with his firm because he found out that in early March 1985, she had placed her license with another firm., Both sales agreements for the Lewises and that for the Websters had the firm name of ACR Equities printed on them as broker.
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that Respondent's license as a real estate salesman in Florida be revoked. DONE and ORDERED this 23rd day of May, 1986, in Tallahassee; Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Arthur R. Shell, Esquire p. O. Box 1900 Orlando, Florida 32802 Ralph Armstead; Esquire P. O. Box 2629 Orlando; Florida 32802
Findings Of Fact At all times relevant hereto, Virginia King was registered with the Florida Real Estate Commission as a real estate salesperson. She has been so licensed for at least 15 years working for Tam Bay Realty. Respondent manages the residential unit here involved for the owners to whom she has sold several properties in past years and who have been out of the country for an extended period. In renting the property the rent is paid to Respondent, deposited into her account from which various expenses associated with the rental of the property is paid, and she makes an accounting to the owners for all monies owed to them. The dwelling in question was listed with Tam Bay Realty for sale with Respondent as listing agent, but she was also renting the property on behalf of the owner. To the Tam Bay For Sale sign on the property, Respondent attached a For Rent sign. Richard D. and Linda Grey were looking for a rental and saw the For Rent sign on the property and called Tam Bay Realty where they were put in touch with Respondent who subsequently met the Greys at the residence. The Greys liked the property and gave Respondent a check for $100 as a deposit on the lease to be executed when the Grey's presented their first month's rent. The residence needed some cleaning which Respondent agreed to have done if the Grey's would have the water turned on. Grey also wanted some trimming of hedges to which Respondent agreed. The Greys later met Respondent at the dwelling before the cleaning and trimming had been done. Grey contends that he did not have the water turned on because "that was the owner's responsibility," but the water was turned on and Respondent had the dwelling cleaned and the hedges trimmed for which she paid in excess of $100. Before the time for occupancy arrived, the Greys encountered a delay in the closing on the home they were selling and called Respondent to say they no longer wanted to rent the house and demanded a return of their $100 deposit. Respondent, contending that Grey breached the agreement to rent the property, credited the $100 to the account of the owner (whose account was also charged for the cleaning and trimming), and refused to remit the deposit to Grey.
The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents violated a rule and various provisions within Chapter 475, Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Tracy Anne Hardman and Ruby Joyce Litton, were licensed as a real estate salesperson and broker, respectively, having been issued license numbers 0458811 and 0424762 by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Litton served as the qualifying broker/owner of Respondent, Carrabelle Realty, Inc., a corporation registered as a real estate broker and located at 104 West Highway 98, Carrabelle, Florida. The corporation holds license number 1008111, also issued by the Division. On December 14, 1995, Thomas E. Gavers, who resides in East Troy, Wisconsin, executed a contract offering to purchase a vacant lot on U. S. Highway 98 in Franklin County, Florida, from John M. Brannen for the price of $22,000.00. After a counteroffer was made by Brannen raising the price to $25,000.00, the contract was accepted by Gavers on January 6, 1996. It can be inferred from the evidence that Gavers was an experienced investor since he also owned "quite a bit of other property" in the county. The contract called for Gavers to pay $500.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that the transaction "shall be closed on or before Feb. 15, 1996, unless extended by adding an addendum to the contract." A special condition added by Gavers provided that the "contract [is] contingent on [the] lot being buildable and [the buyer] obtaining [a] permit to fill [the] lot and build [a] driveway." Finally, paragraph 17 of the contract provided in part that if the buyer "fails to perform any covenants of this contract within the time specified, all deposits shall be forfeited." Hardman was the seller's agent in the transaction. At some point in the process, but probably when the contract was signed, Gavers sent Hardman a note which asked her to "[c]heck to see if lot is buildable & permit is okayed to fill lot & build driveway before spending monies to [sic] survey & title ins." Although paragraph 16 of the contract clearly provided that this responsibility fell upon the buyer, Hardman undertook the process of assisting Gavers since he was then residing in Wisconsin, and her only means of communicating with him was by telephone or mail. In doing so, Hardman made clear that she would assist the buyer as much as possible, but it was the buyer's responsibility to actually secure the permits. Because of time constraints in attempting to secure the information necessary to satisfy the special condition, it was necessary for Gavers to extend the closing date to March 15, 1996. This was accomplished by an addendum to the contract executed by the parties around February 14, 1996. After expending a considerable amount of time and effort in assisting Gavers, Hardman eventually obtained most of the information pertaining to requirements for filling and building on the lot. She learned, however, that a permit would be required from the U. S. Army Corps of Engineers in order to fill the lot. Before that federal agency would even inspect the lot to see if it was permittable, it was necessary that the lot be surveyed. Based on the foregoing advice, Hardman ordered a survey for a cost of $150.00. The survey was performed on or about February 7, 1996. Although Respondents paid for the survey when it was performed, they were ultimately reimbursed for this expense from Gavers' deposit. Hardman did not advise Gavers in writing that a survey was being ordered; however, Litton believed that Gavers was notified of such action by telephone, and this assertion has been accepted. This testimony is especially credible since Gavers had just authorized Hardman to spend $85.00 to file a septic tank permit application with the County. In addition, notwithstanding the instructions in his note that Hardman was not to spend any money until a permit was actually obtained, Gavers subsequently told Hardman to "proceed" and "keep going" in her efforts to help him obtain a permit. Therefore, Hardman was not culpably negligent in ordering the survey, and she did not breach her trust in the transaction by doing so. After the property was inspected by the federal agency, Hardman learned that it would be necessary for Gavers to personally fill out a portion of the application for a permit showing the type of filling and construction he desired and to return it with a filing fee to the agency's Jacksonville office. Gavers obtained the necessary documentation for Gavers to complete, and she filled in a portion of the form. The packet was then mailed to Gavers on a date not of record, but probably before March 15, 1996, with instructions that he needed to complete the application in order to obtain a permit. Gavers claims that he "wasn't aware of" receiving it, but his testimony is not found to be credible. He declined to complete the application, which would have satisfied his contingency request and allowed the contract to close. From that point on, he also stopped communicating with Respondents. The time for closing the contract expired on March 15, 1996. Although Gavers had probably breached the contract by that date by failing to make any reasonable effort to satisfy the contingency, as required by paragraph 16 of the contract, he telephoned Hardman on an undisclosed date and asked that she obtain another extension of time. The seller agreed to a second extension, and a second addendum to the contract was eventually prepared and executed by the seller on April 29, 1996, which extended the closing date to May 31, 1996. The addendum was then faxed to Gavers for his signature. Although Gavers acknowledged receiving the document, he says he did not receive it "until it was about ran [sic] out," he did not want to make a decision on purchasing the property "that quick," and in any event, it was the realtors' responsibility, and not his, to obtain the permits. He declined to respond in any fashion to Respondents. During this same time period, Litton and Hardman repeatedly attempted to contact Gavers by telephone and mail, and in March, April, and May they left "numerous" telephone messages with Gavers' daughter at his Wisconsin home. Although Gavers says he returned every telephone call, his testimony is not deemed to be credible, and it is found that he failed to return any calls. He also claimed that he visited Florida sometime that spring and spoke to Hardman, and that she was pressuring him into making a decision. However, Respondents established that Gavers never returned to Florida to speak with them after the process began, and their testimony has been accepted on this issue. By this time, the seller's property had been tied up for many months, and Brannen had another buyer ready to purchase the property for $10,000.00 more than Gavers had offered. After hearing nothing from Gavers for months, despite continued efforts to contact him, in August 1996 Litton mailed Gavers a Release From Sales Contract, which provided that Gavers would "be released from Contract For Sale, dated 12-14-95," and that he understood that he would "forfeit any earnest money deposit [he] had given." Gavers acknowledged receiving this document, but like the other messages and packets of documents, he declined to respond in any fashion. According to Gavers, he had been "patiently" waiting for a return of his deposit, and that after receiving the release, he immediately filed a complaint with the Real Estate Commission (Commission) seeking a return of his money. However, it was established that his complaint was not filed until almost two years later. In addition, the evidence shows that Gavers never once requested that Respondents return his money or even hinted to them that he thought he was entitled to a refund. Gavers insisted that he "cooperated" with Respondents and "did everything [he] could" to assist Hardman in securing the information necessary to satisfy the contingency in the contract. This assertion has been rejected as not being credible. To the contrary, Gavers refused to even communicate with Respondents, and he failed to take even minimal action to satisfy his responsibility under the contract. On the reasonable belief that Gavers was not making a claim on his deposit, and that he had failed to fulfill his obligation under the contract, on September 13, 1998, Litton issued checks in the amount of $172.73 to Hardman and herself from Gavers' deposit. A part of that was used to reimburse Respondents for the expenses incurred in having a survey performed. The remaining part of the deposit, $172.74, was issued to the seller on October 21, 1996. In making this disbursement, there was no intent on the part of Litton and Carrabelle Realty, Inc. to trick or deceive the buyer, breach their trust in the transaction, or otherwise commit an unlawful act. Gavers never made a demand for his deposit at any point in the process, and he had failed to make a reasonable effort to satisfy the contingency. Under these circumstances, there was no reasonable doubt in Litton's mind, nor should she have had one, as to who was entitled to the $500.00 deposit, and she was not confronted with conflicting demands for the money. Therefore, she was under no obligation to send Gavers a letter by certified mail requesting that he respond within a date certain or that his deposit would be forfeited. Likewise, there was no responsibility on Litton to request a disbursement order from the Commission. After Gavers defaulted on the contract, Brannen sold his lot to another buyer. The new owner satisfied all requirements necessary to build on the lot, and he thereafter built a driveway on the lot and constructed a new dwelling. It is clear, then, that the lot was "buildable," and a permit could be obtained "to fill [the] lot and build [a] driveway," which would have satisfied the contingencies in Gavers' contract. Respondents have never been the subject of prior disciplinary action. In addition, Hardman and Litton are associated with a small real estate firm in a small community, and the imposition of an administrative fine would create a financial hardship. Finally, throughout this process, Respondents acted in good faith; they cooperated with the Division; and they expended considerable time and effort in attempting to assist a buyer who refused to return calls, acknowledge mail, or fill out the necessary documentation that was required to obtain a permit.
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 the administrative complaint, with prejudice. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1998. COPIES FURNISHED: James Kimbler, Acting Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ghunise Coaxum, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Tracy Ann Hardman 865 CC Land Road Eastpoint, Florida 32328 Ruby J. Litton Post Office Box 490 Carrabelle, Florida 32322 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 the Administrative Complaint, dated March 22, 1982. This proceeding commenced with the filing of an Administrative Complaint by Petitioner alleging that Respondent had acted as a broker in three separate real estate transactions in 1981 at a time when his real estate license had lapsed, and that he also had failed to place and maintain earnest money deposits in a trust account with reference to the same transactions. Respondent requested an administrative hearing under Section 120.57(1)(a), Florida Statutes, and the case was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. Petitioner appeared at the hearing unaccompanied by legal counsel. He was thereupon advised by the Hearing Officer as to his right to counsel and as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. Respondent indicated that he understood his rights and elected to represent himself. At the hearing, the parties submitted a Prehearing Stipulation of facts and exhibits. (Exhibit 1) In addition, the deposition of Respondent was received in evidence (Exhibit 2), and Respondent testified in his own behalf. Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unwarranted in fact or law.
Findings Of Fact The following findings of fact are contained in the Prehearing Stipulation: The Respondent, WILLIAM McCOY, was a real estate broker licensed by the Florida Board of Real Estate prior to October 1, 1980. On or about October 1 1980, the Respondent's real estate license lapsed due to the fact that Respondent failed to apply for a renewal of such license. The Respondent did not renew such license until November 9, 1981. The Respondent acted as a real estate broker on behalf of Clinton and Elizabeth Johnson in their efforts to purchase the property located at 3015 East Fern, Tampa, Florida. Such efforts led to the Johnsons' purchasing the property of [sic] July 29, 1981. A true and correct copy of the contract for sale which was executed by the parties to the sale is attached hereto and identified as Exhibit A. The signature which appears to be the signature of the Respondent is, in fact, the Respondent's signature. The Respondent received payment of a commission for brokerage services on the sale of the East Fern Street property in the amount of One Thousand Dollars ($1,000.00) at closing on July 21, 1981. The Respondent acted as broker on behalf of George B. Wilds and Jetie B. Wilds in their efforts to purchase a residence located on West Palm Street in Hillsborough County, Florida. A true and correct copy of the contract for sale executed by the parties to the Palm Street transaction is attached hereto and identified as Exhibit B. The signature which appears to be the Respondent's signature is in fact the Respondent's. The Respondent received a commission for his efforts on behalf of Mr. and Mrs. Wilds in the above referenced real estate transaction at the closing which occurred on November 6, 1981. The Respondent received an earnest money deposit check on the Palm Street property from the Wilds, a true and correct copy of which is attached hereto and identified as Exhibit C. The copies of checks and checking account statements which are attached and identified as Exhibit D are true and correct copies of such records. The trust account from which the records which constitute Exhibit D were the Respondent's only trust account during the relevant period. The following additional facts are found from the evidence presented at the hearing: Respondent maintained both personal and escrow accounts at the Seminole Bank of Tampa. He admitted at the hearing that checks for personal purposes were drawn on his escrow account at various times, although the money expended was money belonging to him after the closing of real estate transactions. (Testimony of Respondent, Exhibits 1-2) In the Wilds transaction, Respondent received a $100.00 binder which he placed in his escrow account. (Testimony of Respondent) On September 28, 1981, Respondent executed an exclusive listing contract with Herbert H. Holley. However, he did not perform services under this agreement, or consider it binding because Holley did not obtain his wife's signature on the contract as had been requested by the Respondent. (Testimony of Respondent, Exhibit 2) Respondent maintained at the hearing that he was unaware of the fact that his broker's license had lapsed because he had been in the process of obtaining a divorce from his wife and that she had taken his credentials at the time they had separated. He had not received a notice from Petitioner to renew his license because his wife was living at home at the time and there was a lot of mail that he had never received prior to their separation. He was aware of the need for periodic renewal of his license, but had not been aware that it had lapsed in 1980. (Testimony of Respondent, Exhibit 2)
Recommendation That Petitioner impose an administrative fine of $250 on Respondent, William McCoy, pursuant to subsection 475.25(1)(a), Florida Statutes, for violation of subsection 475.42(1)(a), Florida Statutes. DONE and ENTERED this 14 day of September, 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 14th day of September, 1982. COPIES FURNISHED: David P. Rankin, Esquire Freeman & Lopez, P.A. 4600 West Cypress (Suite 410) Tampa, Florida 33607 William McCoy 5725 North 40th Street Tampa, Florida 33610 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32801 Fred Wilsen, Esquire Department of Professional Regulation, Legal Services 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32801
The Issue Whether Respondent's registration as a real estate broker should be suspended or revoked for alleged violations of Sections 475.25(1)(a) , (i) & (j) , Florida Statutes. The Respondent appeared at the hearing without legal counsel and was advised as to his right to be represented by legal counsel at his own expense. He elected to represent himself at the hearing. He was also advised of his rights under the Administrative Procedure Act, including his right to testify under oath if he so desired, and he indicated his understanding of these rights. The hearing officer advised counsel for Petitioner that although the Administrative Complaint contained an alleged violation of Section 475.25(1)(i), this violation was not stated in the Notice of Hearing. Petitioner's counsel stated that Paragraph 2, Count 2, of the Administrative Complaint stated a violation of that subsection, but that it had not been alleged as a separate ground therein for adverse action. However, counsel stated that if the evidence presented indicated such a violation, Petitioner would amend its complaint at that time to conform to the evidence, and that it desired to present evidence concerning such a possible violation. At the conclusion of the hearing, Petitioner requested that this alleged violation be included in its Complaint. Respondent was advised that he could request a continuance if necessary to defend against the additional allegation, but he stated that he was able to defend against it without need for a continuance.
Findings Of Fact Respondent was a registered real estate broker during the period when the alleged violations occurred and is currently registered in the same capacity. (Petitioner's Exhibit 9). On or about February 27, 1973, Respondent was the real estate broker for Associated Real Estate of Broward, Inc., a Florida Corporation, in which he owned all of the stock. On that date, one Lawrence Tellschow delivered to Respondent a check in the sum of 4000.00 as a deposit upon property which he desired to purchase from Louise M. Orner, located in Boca Raton, Florida. Tellschow signed a deposit receipt contract on that date which provided on the reverse under "Deposit" that "(Checks issued for the deposit on this contract will be deposited promptly for clearance (after acceptance of this contract by all parties) and the holder of the deposit will not be responsible for the nonpayment of checks". Respondent thereupon obtained the signature of the seller on the contract and returned to his office at which time Tellschow told him not to deposit the check in the escrow account because he had no bank and the check was no good. He further stated that someone else was supposed to give him a check for the deposit, but had not done so. Respondent thereupon returned the check to Tellschow, called up the seller's son and informed him that there was no contract and that he would send a letter to that effect. He did so on March 1st, wherein it was stated that the check did not clear the bank and that after returning the check to Tellschow, the latter had then decided to withdraw his offer. However, Respondent also stated in this letter words that indicated he had not, in fact, deposited the check (Testimony of DeGeorge, Harper, Chappell; Petitioner's Exhibits 1,4,5,6,7) On March 1, 1973, Respondent, Henry Pinelli, Lawrence Tellschow, and Associated Real Estate of Broward, Inc., entered into an agreement whereby Pinelli and Tellschow would contribute monies for the purchase of stock in the corporation, and become officers and directors thereof. The agreement further provided that the corporation would engage in real estate investment and development. It also stated that Pinelli had made certain loans to the corporation for the purchase of properties, that he contemplated making and/or securing additional loans for such purpose, and that he would be entitled to receive a note and mortgage from the corporation as to all such funds. This agreement was modified by a later undated agreement which provided that a certain single family residence under construction at Lighthouse Point, Florida, real property owned by the corporation should be held by the corporation simply as "nominee and for the account of Henry Pinelli" who would assume all obligations and be entitled to all profits derived from said property. It further provided that Respondent and the corporation would have the exclusive right to sell the said property and that the six percent commission there for would go solely to the benefit of Respondent Respondent's Exhibits 1 & 2). The three principals in the corporation had a number of disputes with respect to the activities of the corporation which resulted in the resignation of Tellschow on June 15, 1973, and differences between Respondent and Pinelli as to entitlement to real estate commissions. Although their agreement provided that Respondent would have the exclusive right to sell properties which were acquired by funds advanced by Pinelli (and which were later deeded to him by the corporation), Pinelli gave listings to other realtors for his property located at 3531 N.E. 30th Avenue, Lighthouse Point, Florida. Respondent's conviction that he was being ill-treated by Pinelli led him to place a mechanic's lien on the Lighthouse Point property on November 1, 1973. This lien was predicated upon Respondent allegedly having furnished labor, services or materials consisting of: "exclusive sales agent". On May 9, 1974, the Circuit Court of Broward County, Florida, issued an Order requiring Respondent to remove the claim of lien. Respondent had not had the permission of the owners of the property to place the lien thereon. By the time the lien was removed, various law suits were pending between the parties which had not been resolved (Testimony of Bamman, Henry Pinelli, Patricia Pinelli, Waderlow, DeGeorge; Petitioner's Exhibits 10 & 11: Respondent's Exhibits 4-20).
Recommendation That Respondent Donald D. DeGeorge be issued a written reprimand for violation of Section 475.42(1)(j) , Florida Statutes. DONE and ORDERED this 4th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J.R. Parkinson, Esquire Mr. Donald G. DeGeorge Florida Real Estate Commission c/o Grear Real Estate, Inc. .2699 Lee Road 901 S.E. 17th Causeway Street Winter Park, Florida 32789 Ft. Lauderdale, Florida
Findings Of Fact Respondents were licensed real estate brokers at all times relevant to this proceeding. Robert M. Hall, Respondent LaRossa's nephew, gave LaRossa an $18,000 bank draft around January 1, 1982, toward purchase of an apartment building. LaRossa was to acquire the property in partnership with Hall. The deal fell through and Hall sought return of his $18,000. However, Respondents had not placed the funds in a trust or escrow account but had diverted them to other uses. As a result, LaRossa was not able to return the funds on demand by Hall. Hall then accepted LaRossa's promissory note to be discharged by June 2, 1982. However, when the debt remained unpaid, Hall filed a civil suit in Dade County and obtained a judgment for $22,145 on March 23, 1983. LaRossa finally paid this amount plus interest to the satisfaction of Hall on May 1, 1984. Hall, who was the complaining witness in this proceeding, stated that he "had no trust arrangement" with LaRossa in his letter acknowledging receipt of the funds. However, Hall had turned over the $18,000 to LaRossa with an expectation of investment or return and was distressed at LaRossa's failure to return the funds on demand. Although Hall and LaRossa are related and planned to enter a joint business venture, Hall relied on LaRossa to arrange the purchase of the commercial property in his capacity as a broker. There was no legitimate reason for Respondents to divert Hall's deposit, which was held by them in a trust capacity.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending the real estate brokers licenses held by Respondents for a period of 90 days. DONE and ENTERED this 14th day of August, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1984. COPIES FURNISHED: Fred A. Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 3202 Monroe Gelb, Esquire GELB and SPATZ 3400 Southwest 3rd Avenue Miami, Florida 33145 Mr. Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact William J. Francis, Respondent, is now, and was at all times alleged in the Administrative Complaint, a licensed real estate broker in the State of Florida, having license No. 0388666. Respondent, V R Business Brokers of Lakeland, Inc., is currently, and was at all times alleged in the Administrative Complaint, a real estate broker corporation, having been issued license No. 0224405. At all times alleged in the Administrative Complaint, Respondent Francis was licensed and operating as a real estate broker and sole qualifying broker and officer of Respondent, V R Business Brokers of Lakeland, Inc. Respondent, via Theresa Rosalie Francis, a broker/salesman and wife of Respondent, employed by V R Business Brokers, obtained from Joyce Houser a listing agreement (Exhibit 1) to sell a restaurant called "Bac O' The Mall at a price of $43,000. This listing agreement provided a minimum commission of $6,000 to the broker. Subsequent to obtaining the listing agreement, another employee of V R Business Brokers, James Rice, a real estate salesman, obtained a written offer to purchase "Bac O' The Mall" on January 13, 1983 (Exhibit 2). This offer was made by Robert Stevens and Richard Destin to purchase the business for $30,000, with a $500 deposit and an additional $1,500 down payment when the seller accepted the offer and the balance of $28,000 at closing. Joyce Houser was advised the offer had been received and was requested to come down to Respondent's office to have it presented. Mrs. Houser went to the office of Respondent and was quite upset with the disparity in asking price and the offer. Salesman Rice, who had obtained the offer, urged Mrs. Houser to accept the contract immediately because the business had been losing money and a better offer might not be forthcoming. Mrs. Houser refused this offer and contacted her brother, a real estate broker, who helped her prepare a counteroffer. Prior to this offer being submitted, Mrs. Houser had become unhappy with her dealings with V R Business Brokers due to salesmen bringing clients in at inopportune times to show the business and for failing to maintain secrecy with respect to her employees of the fact that the business was for sale. A prior offer had also been obtained on which Mrs. Houser felt she had been pressured by Respondent to accept; and she had directed all negotiations to be made through her brother, Charles Whitten. The buyers accepted the counteroffer (Exhibit 7) When the counteroffer was accepted, Whitten reminded Respondent that the additional $1,500 was due. When the buyers did not appear the following day with the additional deposit, Respondent, who had agreed to hold the buyers' personal check for $500 to be replaced with a cashier's check for $2,000, apparently became suspicious of the buyers' ability to pay and called the bank on which the check had been written to find out if sufficient funds were on deposit to cover the check. When advised that there were insufficient funds to cover the check, Respondent sent the check to his escrow agent to have the check sent to the bank where, in fact, it was subsequently dishonored. Respondent never advised Mrs. Houser or Charles Whitten that the $500 check bounced or that the buyers had failed to deposit the additional $1,500 required by the contract until after the scheduled date of closing. A few days before the February 15, 1983, scheduled closing date Respondent or his salesman contacted Whitten to solicit Mrs. Houser to finance part of the purchase price. She declined to do so. At the time the initial contract was submitted by Destin and Stevens, Respondent knew these buyers were unemployed engineers and soon thereafter learned they were attempting to borrow the money to finance the deal, and that the banks would not lend them the money they needed. Nevertheless, Respondent attempted to induce the seller to finance the sale of the business when he knew, or should have known, the buyers to be sufficiently poor credit risks they could not obtain financing. When February 15, 1983, passed without the scheduled closing taking place by reason of default on the port of the buyers, Mrs. Houser, on February 18, 1983, wrote to Respondent (Exhibit 5) requesting the earnest money deposit as liquidated damages and a release from the listing agreement which she had been promised. In response thereto, Respondent, by letter dated February 24, 1983 (Exhibit 6), advised Mrs. Houser that the buyers' $500 check was no good and that they had failed to put up the additional $1,500 required by the contract. He agreed to cancel the listing agreement `as soon as this matter is resolved." Mrs. Houser then reported the entire transaction to the Florida Real Estate Commission and these proceedings followed their investigation.
Findings Of Fact The parties stipulated to facts set forth in paragraphs 1-8, below. Stipulated Facts The Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts as the licensing and regulatory agency for real estate broker licensees. The Respondent is Harriet M. Arndt, holder, at all times pertinent to these proceedings, of license number 0002216 issued by Petitioner. Her address of record is One South Ocean Boulevard, Suite 322, Boca Raton, Florida 33431. On January 28, 1987, Respondent received in trust an earnest money deposit in the amount of $39,000 from a buyer for a piece of property listed with another realtor, Merrill Lynch Realty, Inc. At closing of the sales transaction on February 25, 1987, Respondent delivered a check drawn on her trust account in the amount of $15,600 and made payable to Merrill Lynch Realty, Inc. This payment represented payment of one half of the $31,200 real estate brokerage commission. The check was subsequently returned to Merrill Lynch Realty, Inc. due to "non-sufficient funds." On March 27, 1987, Respondent delivered a cashier's check in the amount of $15,600 to Merrill Lynch Realty, Inc., to replace the February 25, 1987, check. The Respondent's real estate brokerage trust account was overdrawn from January 8, 1987 through March 4, 1987, by amounts ranging from $12,991.39 to $14,306.53 on various days during that period. The Respondent failed to maintain the $39,500 earnest money deposit in her trust account from February 2, 1987 until February 25, 1987, because the trust account's daily balance was less than that amount during that period. The Respondent subsequently failed to maintain the $15,660 due to Merrill Lynch Realty Inc., in the trust account from February 25, 1987, through March 25, 1987, because the trust account's daily balance was less than $15,600. From March 19, 1987, through October 29, 1987, Petitioner's investigator requested Respondent to produce for inspection and copying those books and papers relating to Respondent's trust account which are maintained in connection with Respondent's real estate activities. The Respondent failed to make the requested trust account books and records available at any time. Other Facts The Respondent offered mitigating testimony establishing that she was initially licensed in 1978 and has never been censured by Petitioner for any professional violations. She is 57 years of age and her real estate license is her sole source of support. Further, Respondent has borrowed money from her children to make up the deficit in her trust account. The testimony of Respondent also established that she was introduced to a gentleman named Robert H. Lajoie by another realtor in December of 1986. Subsequently, on or about December 8, 1986, Respondent entered into a nefarious arrangement with Lajoie. Under terms of the arrangement, Lajoie gave Respondent a check for $25,500 as a deposit to purchase a property listed with Respondent. In turn, Respondent gave Lajoie back a cash deposit of $10,000 from her trust fund in connection with a contract between the two of them whereby Respondent was to purchase a property of Lajoie's. The closing of the sale of Lajoie's property to Respondent would not take place until May, 1987. Lajoie returned to his native Canada shortly after receiving the $10,000 cash payment from Respondent and died. Shortly thereafter, payment on Lajoie's $25,500 check to Respondent was stopped. The Respondent is not sure whether this action was taken by Lajoie prior to his death or by his estate subsequent to that event. It is Respondent's contention that the loss of the $10,000 cash deposit to Lajoie resulted in a negative net balance in her trust account and eventually all of her financial difficulties in this case. The Respondent was sent an overdraft notice by her bank on January 8, 1987, stating that her trust account was overdrawn by $13,500 and that a check for $25,500 had been returned. Subsequent overdraft notices dated January 13, 1987 and January 21, 1987, were received by Respondent noting the rejection of two of Respondent's checks; one in the amount of $294.90 and the other in the amount of $34.35. The notice of January 13, 1987, indicated a hold on the account in the amount of $2,862.94 against the account's balance of $3,006.19. The January 21, 1987, notice continued this hold on the account's balance of $2,891.45. The Respondent related a series of personal matters at hearing that had prevented her from keeping appointments with Petitioner's investigators to inspect her records. She agreed to make access to those records immediately available.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint, imposing an administrative fine of $1,000 and suspending her license for a period of six months. DONE AND RECOMMENDED this 22nd day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1472 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1-2. Included in finding 1. 3-8. Included in findings 3-8 respectively. Respondent's Proposed Findings 1. Included in finding 2. 2-5. Included finding 10. Included in finding 3. Included in finding 4, 5, and 10. Included in finding 8 and 12. 9-10. Rejected. 11. Included in finding 9. COPIES FURNISHED: Steve W. Johnson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Robert E. Gordon, Esquire 2601 Tenth Avenue North Suite 314 Lake Worth, Florida 33461-3197 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Department of Professional Regulation Division of Real Estate 130 North Monroe Street Tallahassee, Florida 32399-0750
