The Issue The issues in this case are whether Respondent, Rosa Fernandez, committed the violations alleged in a six-count Administrative Complaint filed with the Petitioner Department of Business and Professional Regulation on July 17, 2008, and, if so, what disciplinary action should be taken against her Florida real estate broker license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes. The Division is charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Rosa Fernandez, is, and was at the times material to this matter, the holder of a Florida real estate broker license, license number 3000310, issued by the Division. At all times relevant, Ms. Fernandez was the broker for Vizcaya Realty of Miami, Inc., located at 1630 Southwest 17th Terrace, Miami, Florida 33145. Count One. In August 2005, Ms. Fernandez was the listing agent in the Multiple Listing Service (hereinafter referred to as the “MLS”), for property located at 1827 Southwest 18th Avenue, Miami, Florida 33145 (hereinafter referred to as the “Count One Property”). She also represented the buyer in the sale of the Count One Property. The Count One Property, despite the fact that Ms. Fernandez had listed the property in the MLS for $285,000.00, was purchased for $350,000.00, facts which Ms. Fernandez had to be aware of. In response to a complaint concerning Ms. Fernandez’s real estate broker practice, Derrick Ham, an investigator for the Division, met with her. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count One Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count One Property. While the evidence as to Ms. Fernandez’s precise role in the sale and purchase of the Count One Property was not clear (there was a letter in the file purporting to discharge her services by the seller of the property, but she still continued to be involved with the transaction thereafter), at no time while meeting with Mr. Ham did she indicate that she did not act as broker for the property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: A broker’s disclosure, an executed sales contract, or a closing statement (HUD1 form); An explanation as to why the sales price ($350,000.00) exceeded the listing price ($285,000.00). Nor was there an authorization from the seller authorizing the change in listing price; and A valid listing agreement between the broker and the seller of the Count One Property. Count Two. In April 2005, Ms. Fernandez represented Carlos Damain in the purchase of property owned by Isaac and Teresa Moncarz, which was located at 447 Aragon Avenue, Coral Gables, Florida 33134 (hereinafter referred to as the “Count Two Property”). The Count Two Property was purchased for $595,000.00, although it was listed for sale at $545,000.00, facts which Ms. Fernandez had to be aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Two Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Two Property. Upon review of the records provided to Mr. Ham, it was found that, while the file contained a sales contract and an HUD1 form for the Count Two Property, the following information or documents were not maintained in Ms. Fernandez’s records: A broker disclosure; An explanation as to why the sales price ($595,000.00) exceeded the listing price ($545,000.00). While a “bidding war” would explain this discrepancy, there was no evidence in the file that such a bidding war had taken place; While the file contained a sales contract, nothing in the sales contract dealt with any repairs to the Count Two Property in connection with the sale. Count Three. In March 2006, Ms. Fernandez represented Ramon Rubiera in the purchase of property located at 1852 Southwest 10th Street, Miami, Florida 33135 (hereinafter referred to as the “Count Three Property”). The Count Three Property, despite the fact that the property was listed for $450,000.00, was purchased for $499,000.00, facts which Ms. Fernandez had to be aware of. Pursuant to an addendum to the contract for the sale to Mr. Rubiera of the Count Three Property, the property was sold to Blanca Dellasera on or about April 12, 2006. The sales price increased to $515,000.00. The increase in price, according to the contract, was for “repairs.” Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Three Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Three Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: the HUD1 failed to reflect the terms of the contract without explanation. In particular, the HUD1 indicated a seller’s contribution of 3 percent while the contract provided for a 6 percent seller’s contribution. Count Four. On or about April 20, 2005, Ms. Fernandez represented the buyer of property located at 903 Red Road, Miami, Florida (hereinafter referred to as the “Count Four Property”). The Count Four Property was purchased for $549,000.00, although it was listed for sale at $499,000.00, facts which Ms. Fernandez had to be aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Four Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Four Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: An indication that the seller made a contribution to cover buyer’s closing costs in the amount of $32,994.00; An indication that the seller made a contribution to cover repairs in the amount of $17,000.00; A broker’s disclosure; and An explanation as to why the sales price ($549,000.00) exceeded the listing price ($499,000.00). While a “bidding war” would explain this discrepancy, there was no evidence in the file that such a bidding war had taken place. Count Five. On or about June 21, 2005, Ms. Fernandez represented the buyer in the purchase of property located at 3707 Le Jeune Road, Coral Cables, Florida (hereinafter referred to as the “Count Five Property”). The Count Five Property sold for $575,000.00 while the asking price was $525,000.00, facts which Ms. Fernandez had to have been aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Five Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Five Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: An indication that the seller made a contribution to buyer for repairs in the amount of $15,000.00; A broker’s disclosure; and An explanation as to why the sales price ($549,000.00) exceeded the listing price ($499,000.00). While a “bidding war” would explain this discrepancy, there was no evidence in the file that such a bidding war had taken place. Count Six. On or about March 19, 2006, Ms. Fernandez represented the buyer in the purchase of property located at 1631 Southwest 13th Street, Miami, Florida (hereinafter referred to as the “Count Six Property”). The Count Six Property sold for $500,000.00 while the asking price was $390,000.00, facts which Ms. Fernandez had to have been aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Six Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Six Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: A copy of an assignment of the sales contract; and A sales and purchase contract signed by Gleen Cabezas; An explanation as to why the sales price ($500,000.00) exceeded the listing price ($390,000.00). Ultimate Facts. Ms. Fernandez failed to maintain complete real estate broker records for the transaction on the Count One through Six Properties. Because of the inadequacies of Ms. Fernandez’s real estate broker records, the Division, through its representative, Derrick Ham, was unable to ascertain, for any of the properties at issue in this case, the specifics of what had transpired. As a consequence of the foregoing, the Division, through Mr. Ham, was unable to determine whether Ms. Fernandez complied with the requirements of Chapter 475, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission: Finding that Ms. Fernandez is guilty of the violation alleged in Counts One through Six of the Administrative Complaint as found in this Recommended Order; Placing Ms. Fernandez’s real estate broker license on probation for a period of five years, conditioned on her successful completion of continuing education courses on record- keeping in an amount to be determined by the Commission. Should she fail to complete the continuing education, her license should be suspended until the courses are completed; and Requiring that she pay an administrative fine of $3,000.00. DONE AND ENTERED this 26th of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 26th day of January, 2009. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Douglas D. Stratton, Esquire Stratton & Feinstien, P.A. 407 Lincoln Road, Suite 2A Miami Beach, Florida 33139 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations of the Administrative Complaint, Gerald Schultz was a real estate broker holding License #0215135 and active firm broker for Choice Rentals and Realty Corporation (formerly Choice Rentals, Inc., and hereinafter "Choice Rentals"), which was a corporate broker holding License #0195222. Rosemary Hufcut entered into a contract with Choice Rentals on July 30, 1980, for Choice Rentals to provide her with rental information based upon criteria she gave Choice Rentals. Hufcut paid a fee of $50 to Choice Rentals for its services. Hufcut was looking for an apartment for herself and her two daughters. She specified she wanted a good neighborhood with good schools. Hufcut was given rental data by Choice Rentals and, with her father, visited a number of the apartments listed. The apartments were not suitable. On the following day, Hufcut requested a refund and submitted a written request for a refund on August 6, 1980. On August 26, 1980, Hufcut's refund request was denied by a letter from Choice Rentals (Petitioner's Exhibit #6). This letter provided in part: Refusal to accept available rental properties meeting the requirements as set forth in your contract with us, does not constitute cancellation of contractual agreement. (This is pursuant to the Florida Law regarding "obtaining a rental".) note - produced available rental property meeting the requirements stated on contract. Hufcut has never received a refund from Choice Rentals. The Board introduced Petitioner's Exhibits #1 through #6, which were received in evidence.
Recommendation Having found the Respondents guilty of violating Section 475.25(1)(b), Florida Statutes, the Hearing Officer recommends that the Board of Real Estate suspend the licenses of Respondents for ten years. DONE and ORDERED this 25th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1982. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 Bird Road Miami, Florida 33165 Mr. Gerald Schultz c/o John Hume, Esquire 5100 North Federal Highway, Suite 405 Fort Lauderdale, Florida 33308 Choice Rentals & Realty 3367 North Federal Highway Fort Lauderdale, Florida 33308 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined for alleged violations of Chapter 475, F.S. as set forth in Administrative Complaint dated December 22, 1981. This proceeding arises from the filing of an administrative complaint by the Board of Real Estate against Jack Braunstein on December 22, 1981, which alleges that he failed to refund an advance rental fee to Annette Richard on May 13, 1980, thus violating a duty imposed upon him by law or by the terms of a listing contract in a real estate transaction in violation of subsection 475.25(1)(b), Florida Statutes. The complaint further alleges that Respondent thereby violated subsection 475.25 (1)(d), Florida Statutes, in failing to account to Ms. Richard, and violation of Section 475.453, Florida Statutes, for failing to provide repayment of any amount over 25 percent of the fee for rental information, if the prospective tenant does not obtain a rental. Respondent requested an administrative hearing, and the case was referred to this Division for assignment of a Hearing Officer on February 8, 1982. At the commencement of the hearing, the parties stipulated as to the truth of Paragraphs 2-3, 5-7, 9-11, and 19-20 of the Administrative Complaint. The parties further stipulated that Respondent was licensed by Petitioner at the time of the incident alleged in the Administrative Complaint. Respondent objected to the proceeding on various grounds, as reflected in the transcript of the hearing. The Hearing Officer treated the objection as a motion to dismiss and denied the same. Petitioner moved to amend Paragraph 22 of the Complaint to correct a typographical error to allege a violation of subsection 475.25(1)(d), F.S. in lieu of the inadvertent recitation of a violation of subsection 475.25(d), F.S. The motion was granted. The post-hearing submission by the Petitioner has been fully considered, and those portions not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact Respondent Jack Braunstein is licensed as a real estate broker and was so licensed at all times relevant to the matters alleged in the Administrative Complaint. Respondent operates Rent-Aid, Inc. located in Fort Lauderdale, Florida, a corporate real estate broker, He is the active broker for that firm. (Petitioner's Exhibits 1-2, Stipulation) On April 15, 1980, Annette H. Richard went to Respondent's firm to ascertain the availability of an apartment for rent in the school district where her child attended school. She had previously talked to Respondent by telephone concerning her needs, and Respondent had informed her that rentals were abundant and that she should come into the office. After she arrived, Respondent turned her over to his associate Jeannie Nemett who took down the information concerning Ms. Richard's apartment requirements. Ms. Nemett informed her that they could find her an apartment in the area, but had nothing available at that time. Although Ms. Nemett looked through the firm's book of apartment listings, she did not permit Ms. Richard to do so. Ms. Nemett told her that there was a new duplex listing not far from the desired area and Ms. Richard agreed to look at it. Ms. Nemett had explained the fact that the firm's services were available for a $50.00 "membership" fee. Since Ms. Richard did not have the money with her, she and Ms. Nemett stopped at the bank on the way to see the property and, after paying the requisite fee, Ms. Nemett gave her a copy of the "membership" agreement. She then showed the duplex and one other rental apartment to Ms. Richard. (Testimony of Richard, Nemett, Petitioner's Exhibit 3) A few days later, Ms. Nemett, having identified some existing available apartments in the school district area in her book of listings, called Ms. Richard several times but could not reach her. The messages were recorded on a telephone answering device. Ms. Richard did not return the calls immediately. About four days after having been shown the duplex by Ms. Nemett, she found an apartment which met her needs as a result of a newspaper ad. Prior to locating this apartment, Ms. Richard had also left telephone messages for Ms. Nemett which had not been returned. About a week or ten days after their initial meeting, Ms. Richard telephoned Ms. Nemett and informed her that she had secured her own apartment and did not wish Rent-Aid, Inc. to proceed any further in her behalf. (Testimony of Nemett, Richard, Petitioner's Exhibit 3) The agreement signed by Ms. Richard with Rent-Aid, Inc. included the following statement: If you do not obtain a rental you are entitled to receive a return of seventy-five percent of the fee paid, if you make demand within thirty days of this contract date. All notices shall be sent by certi- fied mail. A rental has been obtained when company provides a guaranteed available rental unit upon the terms specified and requested by member. (Emphasis added) By letter dated May 10, 1980, Ms. Richard requested a refund of her $50.00 fee from Rent-Aid, Inc., but by letter dated May 13, 1980, signed by Ms. Nemett, Ms. Richard was informed that a refund could not be made, as follows: It has been construed that the obtaining of rental property is when you receive listings--available, shown by us, in your price range and area, or any other listings which you agree to see. We did, in fact, show you available rental property under the terms of the Rent-Aid policy #011061. Also at that time, I left messages on your answering machine, concerning other avail- able rentals. Under the conditions and terms of this policy--a refund cannot be made. On advice of counsel, Respondent refunded the amount of $37.50 to Ms. Richard on January 11, 1982. (Testimony of Richard, Respondent, Petitioner's Exhibits 4-5) On March 27, 1980, Respondent's attorney wrote to Salvatore A. Carpino, Staff Attorney of the Department of Professional Regulation enclosing Rent-Aid, Inc.`s contract form and requesting review of it to determine whether or not it met the requirements of Chapter 475. The form sent to Mr. Carpino contained the same language as that used in the Richard transaction. By letter of April 1, 1980, the attorney informed Respondent that he had heard from the Department of Professional Regulation about the case and that the form would be acceptable if he deleted the word "registered" in "registered mail." Thereafter, on May 8, 1980, the attorney again wrote Mr. Carpino enclosing print sizes of the form to determine if it met the Department's print size requirements. By letter of May 15, 1980, Carpino informed the attorney that the Respondent could continue to use the existing forms "with the changes that we have previously discussed." Respondent utilized the contract form in question in reliance upon the advice given to him by his attorney in the above regards, and believed that he was operating properly in accordance with the Department's requirements. He had inserted the definition of "obtaining a rental" in the contract form in order to eliminate the vagueness of the statute pertaining to refunds. (Testimony of Braunstein, supplemented by Respondent's Exhibits 1-2)
Recommendation That the Florida Real Estate Commission (formerly Board of Real Estate) issue a private reprimand and impose a $100 administrative fine against Respondent, Jack Braunstein, pursuant to subsection 475.25(1)(d), Florida Statutes. DONE and ENTERED this 20th day of July, 1982. THOMAS C. OLDHAM 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 20th day of July, 1982. COPIES FURNISHED: Bruce Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 John P. Gaudiosi, Esquire 3801 North Federal Highway Pompano Beach, Florida 33064 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32801
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(b), Florida Statutes (1997), by failing to disclose that a tenant was her son, by failing to collect a required security deposit, and by acting as the agent for the tenant rather than the landlord. (All reference to Chapters and Sections are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate broker pursuant to license number 0480790. At all relevant times, Respondent was employed by Norris Realty, Inc. ("Norris"). In March 1990, Mr. and Mrs. George and Margaret Nichols entered into a property management agreement with Norris. Respondent was aware of the management agreement. Norris was the agent for the Nichols and assumed all duties owed to a principal by an agent. The managing broker was Mr. Alan Norrie. On March 22, 1996, Mr. Norrie died, and Respondent assumed responsibility as the broker/office manager for Norris. Respondent had no experience managing a real estate office at the time. She continued in that role for approximately seven months. During the time Respondent was the broker/office manager for Norris, another agent for Norris obtained a lease from Mr. Joseph McGee to rent the Nichol's property. There were no written amendments made to the lease during the time Respondent was the broker/office manager of Norris. The lease required all rents and other monies to be paid to Norris. The tenant was to deposit with Norris a $750.00 security deposit and the last month's rent of $750.00 prior to occupying the property. Respondent failed to disclose to the Nichols that the tenant was her son. The lease does not disclose the relationship of the tenant to the broker/office manager of Norris. The Nichols did not learn that the tenant was Respondent's son until March or April of 1997, approximately four months after the tenant occupied the rental property. Respondent permitted the tenant to move into the property without collecting either the security deposit or last month's rent from the tenant. Respondent failed to disclose to the Nichols that the tenant had paid neither the security deposit nor the last month's rent. Shortly after occupying the property, the tenant failed to pay further rent. A judgment of eviction was eventually entered against the tenant. The tenant vacated the property and took the stove that was in the rental property. Respondent acted as her son's agent in the rental transaction. By letter dated May 21, 1997, the Nichols filed a complaint against Respondent with Petitioner. During the formal hearing, Respondent admitted to being negligent regarding the transaction in question and acting as her son's agent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b), reprimanding Respondent, requiring Respondent to complete continuing education relevant to the specific offenses, and either imposing an administrative fine of $1,000 or requiring restitution to the Nichols. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 1st day of September, 1998. COPIES FURNISHED: Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Dorothy A. McGee pro se 109 11th Avenue Indiatlantic, Florida 32801
The Issue The issue in this case is whether the Respondent's real estate broker's license should be revoked or otherwise penalized based upon the charges set forth in the Administrative Complaint.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the state of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 445 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Michael L. Liddle, is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0241275 in accordance with Chapter 475, Florida Statutes. The last license was issued to Respondent as a broker, c/o Liddle Property Services, Inc., 10877 Overseas Highway, Marathon, Florida 33050. In 1988, Respondent undertook to manage the rental of an apartment for Patricia D. King and her husband Leonard King. Chris Fullum, an employee of the Respondent, was handling the details of renting the apartment for the Kings. In conjunction with the rental of the Kings' apartment, Respondent sent the Kings a net rental income check dated October 1, 1988, for $612 which the Kings attempted to deposit in their bank account. The escrow check from the Respondent was returned to the Kings on October 21, 1988, marked "NSF" (non-sufficient funds). At the request of Respondent, Ms. King attempted to redeposit the check, but it was returned again on November 1, 1988 marked "NSF" and "do not present again as a cash item enter only for collection." Ms. King filed a complaint with the Florida Department of Professional Regulation and sent a copy of her complaint letter to the Respondent on November 10, 1988. On November 15, 1988, she received a cashier's check from Respondent for the returned net rental income check plus returned check charges. In the latter part of 1988, Respondent managed the rental of an efficiency apartment (#116 Ocean Isles Fishing Village), for Marva Kay Mizell. In conjunction with the rental described in paragraph 7, the Respondent sent to Ms. Mizell her net rental income checks for September and October 1988 totaling $620.37. After Marva Kay Mizell deposited the checks, the checks were returned to her marked "NSF". Ms. Mizell sent a copy of the complaint she filed with the Department of Professional Regulation to the Respondent. Thereafter, on January 9, 1989, Respondent sent Marva Kay Mizell a cashier's check covering the returned net rental income checks plus returned check charges. On January 20, 1989 Respondent was interviewed in his office by Petitioner's investigator, George B. Sinden, who was accompanied by another investigator, William Reich. Respondent advised Petitioner's investigators that his bookkeeper had left his employ in August 1988, and Respondent had been lax in maintaining the escrow account during September and October of that year during which period of time approximately IS checks were returned for insufficient funds. At the January 20, 1989 meeting, Respondent further advised that he had "made all the checks good." In response to a request for documentation regarding the rentals he was managing, Respondent admitted he had no written rental agreements or leases. He offered as an explanation that his rentals were short term, i.e., one day to three months. Investigator Sinden determined from Respondent that Respondent typically maintains a "tally sheet" on each unit and sends the owner a monthly "recap" with their net rental income check each month. On January 20, 1989, an office inspection and audit of Respondent's escrow trust accounts was conducted by Petitioner's investigator George B. Sinden, assisted by Petitioner's investigator William Reich. Respondent's escrow accounts were found to be short in the amount of $1,236.19. There were no pending sales at the time of the audit. Respondent told Petitioner's investigators that he (Respondent) would deposit $1,236.19 into the escrow account and would provide proof thereof along with a copy of the last 13 bank statements, all returned checks and proof of payment by February 6, 1989, to the Miami FDPR office. As of February 23, 1989, the documentation promised by Respondent had not been received. As of March 28, 1989, very little documentation had been received by Petitioner's investigators. Efforts by Petitioner's investigators to contact Respondent have been unsuccessful and Respondent has failed to return phone calls from the investigators. Because of Respondent's lack of good accounting practices, both Ms. Mizell and Ms. King were unable to determine whether their real property had, in fact, been rented or leased during any given time or how often the units were rented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent Michael L. Liddle guilty of all charges as alleged in Case No. 89-4981 and that the real estate broker's license of Respondent be revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1990. 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 2nd day of February, 1990. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Michael L. Liddle c/o Liddle Property Services, Inc. 10877 Overseas Highway Marathon, Florida 33050 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 APPENDIX TO RECOMMENDED ORDER CASE NO. Case Number 89-4981 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. 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 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 2. 3. Adopted in substance in Findings of Fact 3. 4. Adopted in substance in Findings of Fact 4. 5. Adopted in substance in Findings of Fact 5. 6. Adopted in substance in Findings of Fact 6. 7. Adopted in substance in Findings of Fact 7. 8. Adopted in substance in Findings of Fact 8. 9. Adopted in substance in Findings of Fact 9. 10. Adopted in substance in Findings of Fact 10. 11. Adopted in substance in Findings of Fact 11. 12. Adopted in substance in Findings of Fact 12. 13. Adopted in substance in Findings of Fact 13. 14. Adopted in substance in Findings of Fact 14. 15. Adopted in substance in Findings of Fact 15. 16. Adopted in substance in Findings of Fact 16. 17. Adopted in substance in Findings of Fact 17. 18. Adopted in substance in Findings of Fact 18.
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, disciplinary action should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with responsibility for prosecuting administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed real estate salesman in the state, holding license number 0189734. The license was last issued as a salesperson %Say Realty & Investments, Inc., 6306 Pembroke Road, Hollywood, Florida 33023. Respondent was employed as a salesperson with Sales Alvin, Inc. from June 28, 1990, to March 10, 1991. Respondent's license was placed with Say Realty and Investments, Inc. effective March 11, 1991. During the time Respondent was employed by Sales Alvin, Inc., she carried out a series of acts in connection with the listing for rent of a condominium without the knowledge and consent of her employing broker. While Respondent was a salesperson for Sales Alvin, Inc., on or about February 19, 1991, Respondent listed an unfurnished condominium for rent at a monthly rental price of $700. The condominium was owned by Mr. Roy Barrett. Respondent listed the rental unit, and Alon Granovsky, another salesperson employed by Sales Alvin, Inc., procured a tenant for the condominium. Respondent drafted a lease between the tenant and the owner of the condominium on or about February 21, 1991. Respondent collected a check from the tenant in the amount of $2,100 for payment of the initial rent and security deposit. Respondent then delivered the check to the owner of the condominium, and the owner gave Respondent a receipt for $2,100. Respondent gave Mr. Granovsky a personal check for $210 on or about February 21, 1991, as a commission for procuring the tenant for the condominium. Respondent did not inform her employing broker of the rental transaction or that she had given a commission check to Mr. Granovsky. Mr. Granovsky disclosed the transaction to his employing broker and delivered his commission check to his broker. Respondent's broker gained additional knowledge of the transaction when he received a money order from the tenant in the amount of $700 for the rent due for the month of March. Respondent's employing broker confronted Respondent regarding the transaction. Respondent provided her employing broker with a personal check for $350 as a portion of the commission due the employing broker and subsequently delivered the balance of the commission due. The entire commission was disbursed by the employing broker. While employed by Sales Alvin, Inc., on or about March 3, 1991, Respondent solicited and obtained a listing for the sale of a house. Respondent provided the owners of the house with a Sellers Net Sheet on the letter head and form used by Sales Alvin, Inc. The Sellers Net Sheet approximated the cash to seller at closing if the house sold at the listed price. Respondent became employed by Say Realty and Investment, Inc., on or about March 11, 1991. Respondent listed the house while she was employed by Sales Alvin, Inc. When Respondent placed the house in the multiple listing service ("MLS"), she showed Say Realty and Investment, Inc., as the listing broker. When the brokers at Sales Alvin, Inc. questioned the listing with Say Realty and Investment, Inc., the listing was transferred to Sales Alvin, Inc. Respondent has no history of prior disciplinary action against her license.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order suspending Respondent's license for 90 days, imposing an administrative fine of $1,000, and placing Respondent on probation for one year subject to such reasonable conditions as may be imposed by the Commission. DONE and ENTERED this 22nd day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 23rd day of January, 1992.
