Findings Of Fact In December, 1976, Respondent Murray was registered with Petitioner as a real estate broker and Respondent Doyle was registered as a real estate salesman associated with Murray. Negotiations conducted between Murray, Doyle and representatives of Cameron-Brown led to the execution of an Exclusive Right of Sales Agreement, dated December 1, 1976 (Exhibit 1). This agreement was negotiated between the parties with the final draft prepared by Cameron-Brown legal staff and approved by R.E. Murray and Associated (REMA) by Murray and Cameron-Brown Company by a vice-president. The contract covered condominiums that had been foreclosed on by Cameron-Brown and which they were anxious to sell. In addition to providing commissions to be paid on sales, how down payments were to be handled, how the agreement could be terminated, reports to be submitted, defining responsibility for employees, and establishing the closing agent for Seller, the agreement, and Addendum A, provided that Doyle was to have sole control of managing and marketing the project. This latter provision was interpreted by the principal drafters of the agreement to indicate that Cameron-Brown was interested in having Doyle as sales manager of the project but in all respects working under Murray as broker. Little discretion was left to the agent in executing contracts which were provided by the Seller, handling of the escrow deposits or in preparing closing statements, as the manner of carrying out these duties was established by the agreement which also provided that all deposits were to be placed in escrow with the title company designated as closing agent for the Seller. During the period the condominium units were being sold this was the major, if not sole, real estate function performed by REMA. The agreement was carried out to the satisfaction of Cameron-Brown with all units sold quicker than had been expected. From the summer of 1976 through the selling of the condominiums, Respondent Murray, who is also a licensed broker in Minnesota, was engaged in a real estate development project in Minnesota and spent the major part of his time in Minnesota. Murray was in communication with his Clearwater office by telephone and discussed all aspects of the agreement with Doyle doing the negotiations. After the agreement was executed by Murray, he was also available by telephone and was contacted by Doyle and others in the office when they deemed it necessary. Murray signed all listing agreements and approved all salesmen employed. One sales person, Mrs. McGhan, was interviewed by a REMA salesperson and Doyle and her employment was approved by Murray. Because her registration was close to expiration when she was hired, Murray authorized Doyle to sign his, Murray's name to her application to be forwarded to FREC. No effort to emulate Murray's signature was made by Doyle in signing Murray's name on the McGhan application. During the period involving the sales of these condominiums Murray received weekly reports on the progress of the sales and was in frequent contact with the office. Procedures to be followed in the REMA office had been established by Murray orally and in written memoranda and were, after the charges herein involved were brought, published in a Procedures Manual, a copy of which was admitted into evidence as Exhibit 7. Respondent Doyle at all times here involved was employed by REMA as a salesman. Doyle holds an inactive real estate broker's license in California and has been a licensed Florida real estate salesman since March 1976. He passed the C.P.A. exam in California in 1970 and also holds a Florida Mortgage Broker's license. He has a Master's degree from UCLA in Real Estate and Urban Land Economics, and is a certified teacher at St. Petersburg Junior College, teaching Real Estate Finance since 1977. During the negotiations leading up to the Exclusive Right of Sale Agreement with Cameron-Brown, Doyle did most of the negotiations for REMA and John Sullivan, an employee of Cameron-Brown, did the negotiations for Cameron- Brown. In conducting these negotiations, Doyle was in frequent communication with Murray and Murray was the final approving authority for REMA. Doyle was authorized to sign checks drawn on the REMA escrow account, but no evidence was presented that he ever signed checks on this escrow account or that it would have been wrong had he done so. During the period Murray was spending most of his time in Minnesota, the principal efforts of REMA were involved in the condominium project and none of the earnest money deposits there received were placed in REMA escrow account.
Findings Of Fact Petitioner and Respondent stipulated at formal hearing to Paragraphs 1- 6 of the Administrative Complaint, (TR-5-6) and it is accordingly found that: Petitioner seeks to suspend, revoke or take other disciplinary action against Respondent as licensee and against his license to practice the real estate brokerage business under the laws of the State of Florida. Respondent is now and was at all times alleged in the administrative complaint a licensed real estate broker having been issued license number 0191613. The last license issued was as a broker c/o Cluett Realty, Inc., 4720 Palm Beach Boulevard, Fort Myers, Florida 33905. On about July 14, 1983, Respondent received a check in the amount of $400.00 from Mary Snodgrass, a salesman, who at the time was associated with Respondent. Snodgrass had received the money from Robert James. James had submitted four contracts which were accepted for purchase of four duplexes listed with Respondent. The $400.00 represented a deposit of $100.00 on each of the four contracts. When the check was entrusted to Respondent, Snodgrass stated that the buyer had requested the check be held a couple of days before depositing into escrow to insure it would clear. Respondent indicated this was wrong and the check should be deposited immediately. 1/ The check was not deposited into Respondent's escrow account, but, was held by Respondent until September 15, 1983, two months after initial receipt of the check. The check presented by Mr. James (buyer) to Mrs. Snodgrass (saleswoman) was drawn on the Fort Myers Barnett Bank and on its face represents it is drawn on an account in the name "Clara A. James For: Caj-Raj-Casa De Chihuahua's." There is no indicator on the check itself that Robert A. James is an appropriate signatory on this account. At hearing, Mr. James represented that he was a proper signatory on the account because Clara A. James is his wife. Mrs. Snodgrass represented that she knew Mr. James had this authority but there was no predicate laid for this knowledge on her part and there is nothing about the check itself which would convey such knowledge to someone not intimate with the James' household, nor does the check itself reveal any relationship between Mr. James and "Caj-Raj-Casa De Chihuahua' s." At the time Snodgrass submitted the check to Respondent, she informed Respondent that it was possible that the check would not clear the bank due to insufficient funds. At the time of his conversation with Mrs. Snodgrass on July 14, Respondent was aware of previous problems arising from failure of an earlier check written by Mr. James for rent to one of Respondent's other clients to clear the bank. Respondent was also aware that Mr. James had refused to vacate the premises which James, James' wife, and approximately 80 Chihuahuas occupied by rental from this other client. Respondent perceived Mr. James resented Respondent due to Respondent's involvement in getting the James entourage out of the rental properties so that Respondent's other client as seller could close sale of that property to a third party buyer. Accordingly, Respondent retained the check when it was given him by Mrs. Snodgrass for a few minutes to think about the situation. He then returned it to her and explained it was an inappropriate deposit because it did not represent cash if they knew at the time it was tendered that it might be returned for insufficient funds. He told Mrs. Snodgrass to either secure a check which would clear or to inform both potential buyer and sellers that there was no deposit placed in escrow on the four contracts. Mrs. Snodgrass denied that the check was returned to her by Respondent or that this conversation ever took place; she assumed the check would be held by Respondent until evening and in the evening she went out and got the sellers to sign the 4 contracts previously signed by James. Mrs. Snodgrass placed the signed contracts in a file drawer in Respondent's office and never again initiated any title work or any conversation with Respondent about the transaction. The testimony of Mrs. Weise and Mrs. Cluett support the material particulars of Respondent's version of this second interchange between Mrs. Snodgrass and Respondent. Mr. James testified that he did, indeed, go the following day (July 15) to the bank to transfer funds if needed, but did not then notify Mrs. Snodgrass or Respondent because the money transfer was not necessary. Upon this evidence and due to the credibility problems recited in footnote 1, supra and in Findings of Fact Paragraph 8 infra, the Respondent's version of this interchange is accepted over that of Mrs. Snodgrass and provides additional, but not contradictory, information to Finding of Fact Paragraph 1-e as stipulated by the parties. In early September, Mrs. Snodgrass secured employment with Barbara Ware Realty, a competitor of Respondent. She then turned in all of her keys, gear, and papers to Cluett Realty. Shortly thereafter, Helen Weise, secretary to Respondent, discovered the July 14, 1983, check on what had been Mrs. Snodgrass's desk. This discovery is confirmed by both Respondent and Mrs. Weise. Respondent knew Mrs. Snodgrass and Mr. James were personal friends. He telephoned Mrs. Snodgrass about the status of the James' transaction when the check was discovered. Mrs. Snodgrass admitted she thereafter called Mr. James to verify the status of the transaction and then called Respondent to tell him she thought the sale would go through, but she now denies telling Respondent that the July 14, 1983, check was good or even that Respondent mentioned the check when he called her the first time. Respondent then deposited the check into his escrow account the next day, September 15, 1983. He immediately placed the request for title search and insurance. Thereafter, two duplexes out of the four involved in the four James contracts with Cluett Realty were sold by Mrs. Snodgrass through her new employer, Barbara Ware Realty, and two were sold by Mary Cluett, Respondent's wife, through Cluett Realty. During the period from July 14, 1983, until September 15, 1983, Mr. James was apparently aware that the check submitted to Cluett Realty had never been deposited by Cluett Realty because it did not show up in monthly bank statements. After September, Mr. James clearly was further aware of what was going on because he admits to trying to get Mary Snodgrass to pursue the transaction under her new employer's auspices, despite Cluett's retaining the exclusive listing for the sellers of the properties. It was not established whether or not the sellers were misled by Respondent's failure to immediately deposit the July 14, 1983, check, but Mr. James testified that when Respondent approached him about refunding his deposit or at least a portion thereof, he, (Mr. James), told the Respondent to keep it or give it to the sellers or at least not to give it back to him due to all the inconvenience. Mr. James and Mrs. Snodgrass were friends on July 14, 1983. They became friendlier thereafter. Apparently, in early September, Mrs. Snodgrass left Respondent's employ upon very unfriendly terms. The terms may be characterized as "unfriendly" even if one accepts Mrs. Snodgrass' version that her job hunt was successful before she was fired by Respondent and therefore she should be viewed as quitting upon being asked by Respondent to resign. Respondent has previously filed an unsuccessful complaint with the Department of Professional Regulation against Mrs. Snodgrass. It was she who initiated the complaint giving rise to these instant proceedings against Respondent. Mrs. Snodgrass' resentment of Respondent's filing a complaint against her was evident in her demeanor on the stand. An attempt at formal hearing to impeach Respondent's credibility upon the basis of a supposed prior admission to Petitioner's investigator that Respondent forgot to deposit the crucial check and upon the basis of Respondent's July 13, 1984, letter to the Department of Professional Regulation (P-7) left Respondent's credibility intact. When Investigator Potter's testimony as a whole is compared with Respondent's letter as a whole in light of Potter's investigation of three separate complaints over a period of many months 2/ there is no material variation of Respondent's representations. Also, what was "forgotten" and when it was forgotten is vague and immaterial in light of consistent information supplied to the investigator by Respondent that there was a request to hold the July 14, 1983, check for a couple of days due to insufficient funds.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing all charges against Respondent. DONE and ORDERED this 14th day of August, 1985, in Tallahassee, Florida. ELLA JANE P. 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 14th day of August, 1985.
The Issue The issues to be resolved in this proceeding are whether the Respondent has committed the violations alleged in the Administrative Complaint and, if so, whether any disciplinary action against his licensure status is warranted.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: At all times material herein, Respondent was a licensed real estate salesman having been issued license number 00335420. The last license issued was as a salesman, c/o Ancla Realty, Inc., 292 Aragon, Coral Gables, Florida 33134. Respondent, on or about January 24, 1983, in Dade County, Florida, did unlawfully obtain or use, or did endeavor to obtain or use the property of another, Steffi Downs or Joann Downs, being a lamp, with the intent to deprive that person of the right to the property or of a benefit therefrom, or to appropriate the property to his own use or to the use of any person not entitled thereto, in violation of Subsection 812.014 (1) and (2)(c), Florida Statutes. As a result thereof, an information alleging petit theft was filed against the Respondent on March 1, 1983. Respondent entered a plea of nolo contendere to the information and by order of April 22, 1983, Respondent was found guilty of petit theft, adjudication was withheld, Respondent was placed on six months probation and was assessed $100.00 court costs.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law it is Recommended that a Final Order be entered which would: Dismiss Count I of the Administrative Complaint; Find the Respondent guilty of the violation charged in Count II of the Administrative Complaint; and Revoke the Respondent's license, without prejudice to his reapplication for licensure upon a showing of rehabilitation. DONE and ORDERED this 24th day of July, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH 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 24th day of July, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Mr. Eddie Garcia 1260 N. W. 124th Street North Miami, Florida 33167 Harold Huff, Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Orlando Florida 32801
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
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 both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
Findings Of Fact The Department of Professional Regulation, Division of Real Estate (Petitioner) is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 475, Florida Statutes, and rules promulgated pursuant thereto. At all times material hereto, Stanton S. Bank (Respondent) was a Florida licensed real estate broker, having been issued license number 0003707, with an address of Bank Enterprises, Inc., 1959 NE 148th Street, North Miami, Florida 33131. Respondent was initially licensed in or around the mid-1970s. On or about April 17, 1992, the United States Attorney for the Southern District of Florida charged Respondent by Information with a felony, which was filed in the U.S. District Court, Southern District of Florida, Case No. 92- 0233-CR-KEOE, for filing a false 1985 Form 1040 U.S. Individual Income Tax Return in violation of Title 26, United States Code, Section 7206(1). Respondent falsely represented his distributive share of income from a corporation called Aqua Shield, Corp. On or about June 29, 1992, Respondent entered into a plea agreement with the U.S. Attorney's Office on the charge, agreeing, inter alia, to plead guilty to the Information. No promises regarding sentencing were made to Respondent in the agreement. On or about September 16, 1992, Respondent pled guilty to the criminal offense and was sentenced as follows: suspended sentence and three years probation with special conditions, among them, performing 100 hours of community service and paying the cost of prosecution, not to exceed $2,000. Approximately 28 days later, on or about October 14, 1992, Respondent informed Petitioner of his conviction of the felony. In 1978, Respondent and Robert "Bud" Smith (Smith) formed a business called Aqua Shield Corp. which was engaged in the business of painting and waterproofing. Smith was the President, owning 51 percent of the stock, and Respondent was the Treasurer, owning 49 percent. Respondent's main responsibility was developing the business, whereas Smith controlled the payroll and handled most of the financial matters. By 1978, Respondent was no longer actively involved in real estate but kept his license active. Subsequently, in 1979 Respondent was licensed by the State of Florida as a general contractor. His contractor's license was not needed for the work performed by the business. Also, very little of the business was construction related. Aqua Shield employed a certified public accountant, Glenn Lapides (Lapides), whose services Smith had used in his prior business. Smith and Lapides developed a scheme whereby the salaries of Smith, Respondent and employees of the business would periodically be paid in cash, instead of by check. Smith would selectively choose certain checks that the business received for services rendered and take them to Lapides who, in turn, would give Smith cash, after deducting nine percent for himself (Lapides). Smith would then pay himself, Respondent and the employees' wages in cash. On some occasions, after Smith selected the checks, Respondent would take the checks to Lapides and exchange them for cash. Respondent knew that the scheme was illegal. In December 1988, a U.S. Internal Revenue Service (IRS) agent, investigating Lapides, visited Aqua-Shield Corp. The IRS agent had no knowledge of the scheme. Immediately after the agent's visit, Respondent informed Smith that the illegal activity had to stop. Shortly thereafter, Respondent began to cooperate with the IRS and convinced Smith to do the same, with both fully cooperating throughout the investigation. For almost four years Respondent provided documents and testimony to the IRS. Smith cooperated until his death from cancer. Respondent resigned from Aqua-Shield Corp. in 1990. During the IRS investigation, Respondent filed amended tax returns and paid the IRS in interest and penalties approximately $40,000 to $45,000. Even though Respondent was charged in the Information for filing a false 1985 federal tax return, his 1986 and 1987 returns were also false. Presently, Respondent actively uses his general contractor's license. He operates a highrise waterproofing business, restoring homes and buildings damaged by Hurricane Andrew. The business is licensed to operate through his contractor's license which is the sole license for the business. Respondent employs approximately 42 people on a full-time basis. As his probation has not expired or been terminated on his criminal conviction, he and his business are being monitored by the federal government. Even though Respondent also continues to maintain an active real estate broker's license and an office at the location listed on his license, he does not engage in the real estate business and has no sales persons. The prosecuting Assistant United States Attorney in the federal criminal action supports and recommends leniency toward Respondent regarding the discipline of his license due to the considerable cooperation of Respondent with the criminal investigation. No prior disciplinary action has been taken against either Respondent's real estate broker's license or construction license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's real estate broker license for one year, with the suspension being stayed provided Respondent completes a two-year probation under terms and conditions that Petitioner deems appropriate. Imposing an administrative fine of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1993.
Findings Of Fact Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11). Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William Grossbard, Esquire Suite 6175M 6191 Southwest 45 Street 6177 North Davie, Florida 33314 Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C 1125 Northeast 125 Street North Miami, Florida 33161 Lawrence J. Spiegel, Esquire Spiegel and Abramowitz Suite 380 First National Bank Building 900 West 49th Street Hialeah, Florida 33012 Mr. Gary Lee Sexsmith 321 Southwest 70t Avenue Pembroke Pines, Florida 33023 Mr. Guiseppe D. Bellitto 2635 McKinley Street Hollywood, Florida 33020 Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and Trustee of Select Realty, Inc. 321 Southwest 70th Avenue Pembroke Pines, Florida 33023 Mr. Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Respondent, Robert William English, is a licensed real estate salesman having been issued license number 0532972 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Respondent was last associated with a real estate firm known as Terry W. Pacetti, Inc., 5413 Highway A1A South, St. Augustine, Florida. He has been licensed as a salesman since January 9, 1989. Except for this proceeding, there is no evidence that respondent has ever been the subject of a disciplinary action in connection with his license. In May 1991, respondent accepted a position as manager of the Creston House Condominiums in Crescent Beach, Florida. Prior to that time, he worked for two realtors and a developer. From May 1991 until October 1991, respondent did not have his license placed with any real estate broker and accordingly his license was known in the trade as being "in limbo." In July 1991 Clark Wheeler and his wife approached respondent and inquired if any units in the Creston House Condominiums were for sale. He was advised that Nancy Ho, who owned unit 7-C, had her unit on the market. As it turned out, Ho had entered into an exclusive right-of-sale contract with Carol Collins, broker of record for Remax 100 Realty, Inc., on April 24, 1991. The contract was in effect until August 23, 1991. Under the terms of the contract, Collins was to have exclusive rights to sell the property during that period of time and was to receive a 6% sales commission in the event the property was sold. The contract further provided that Ho would pay the commission if the property was sold within 120 days after the termination of the contract if the negotiations for such sale occurred before August 23, 1991. Respondent was aware of Collins' exclusive contract by virtue of Collins having told him in May 1991. Even so, respondent showed the Ho apartment to the Wheelers and attempted to telephone Ho to advise her the Wheelers were interested in her unit. He was unsuccessful in speaking with her. Eventually, Wheeler himself telephoned Ho and, after discussing a possible sale, mailed her a deposit receipt and purchase and sale agreement on July 13, 1991, wherein Wheeler and his wife offered to purchase the unit for $78,500.00. Wheeler placed a provision in the contract which provided that the "seller shall pay for: realtor's commission due Bob English and/or other realtors." However, respondent was not involved in the preparation of the contract and did not actually see the contract until the day of final hearing. Notwithstanding this, the evidence shows that respondent knew he would receive a sales commission for his services if the transaction closed. Shortly after receiving the contract, Ho accepted Wheeler's offer. On October 14, 1991, but before the closing on the Wheeler-Ho transaction, respondent placed his license with Century 21 At the Beach Realty, Inc., a St. Augustine Beach real estate firm. The broker of record was Barry Carver. However, respondent was hired as a "referral agent" by Peter Oliver, also a broker and president of the firm. According to Carver, this meant that respondent could only conduct sales through Oliver rather than the firm in general and was to be under Oliver's direct supervision. On November 26, 1991, the Ho-Wheeler transaction closed. The closing was handled by Raymond M. Ivey, a Gainesville attorney identified on the settlement statement as the "settlement agent". The statement reflects that a realtor's commission of $4,710.00 was paid by the seller. However, respondent accepted only $2,355.00 as a commission, and Ivey apparently deposited the remainder of the commission in his trust account. Whether it still remains in his account is not of record. According to respondent, the $2,355.00 represented the sales commission which a salesperson would be paid on such a transaction. He says the remainder was to be given to whatever broker was entitled to receive the same. When he accepted the commission, he did so in his own name and not in the name of Century 21, with whom his license was placed. Indeed, prior to closing respondent did not notify either Century 21 or the broker who had the exclusive listing that a contract had been executed and a closing would be held. After the closing, respondent carried his commission check to Oliver and explained the circumstances under which he had received the money. After obtaining what respondent says was Oliver's approval to keep the commission, respondent endorsed the check and deposited the same into his personal bank account. The hearsay statements of Oliver contained in a letter identified as respondent's exhibit 1 tend to corroborate respondent's testimony on this issue. On an undisclosed date after the closing, a Century 21 salesman apparently learned of the sale and the fact that Century 21 received no share of the commission. At about the same time, Collins also learned of the sale. Although respondent then visited the offices of Century 21 and explained his role in the transaction, at least two brokers were not satisfied with his explanation, and the broker of record later filed a complaint against respondent with DPR in March 1992. Century 21 acknowledged that it has no claim on the escrowed money but is concerned that respondent had to "work through" a broker in order to receive a commission. After learning of Century 21's dissatisfaction, but prior to the filing of the complaint, in February 1992 respondent voluntarily advised Carol Collins that the sale had taken place and she should contact Ivey to collect her commission. Although Collins appears to be entitled to receive a commission on the sale pursuant to the exclusive right of sale contract, she has never received any money. She has spoken with attorney Ivey and Ho concerning the commission due under the contract but her efforts have been unsuccessful.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that respondent violated Subsections 475.25(1)(a) and (b) and 475.42(1)(b) and (d), Florida Statutes. It is further recommended that his license be suspended for ninety days and he be assessed a $500 administrative fine. DONE AND ENTERED this 20th day of January, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5757 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on petitioner's proposed findings of fact: 1-3. Partially adopted in finding of fact 1. 4. Partially adopted in finding of fact 3. 5. Partially adopted in findings of fact 3 and 4. 6-7. Partially adopted in finding of fact 4. 8. Partially adopted in finding of fact 5. 9-10. Partially adopted in finding of fact 6. 11. Partially adopted in findings of fact 7 and 8. Note - Where a finding has been partially adopted, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 James H. Gillis, Esquire Post Office Box 1900 Orlando, Florida 32802-1900 Mr. Robert William English 5930 A1A South, #7B St. Augustine, Florida 32084
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of Florida, in particular Section 20.165, and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times pertinent to this proceeding, Respondent was a licensed real estate school instructor and real estate broker in Florida having been issued license numbers ZH35593 and 0520063 in accordance with Chapter 475, Florida Statutes. No evidence was presented of any prior disciplinary action against Respondent's licenses. The last licenses issued to Respondent were as a school instructor at 23424F SW 53rd Avenue, Boca Raton, Florida 33433, and as a broker c/o The Place for Real Estate, Inc., 2 E. Camino Real, Boca Raton, Florida 33432. From November 1992 through August 1993, Respondent was employed as a real estate instructor by the Gold Coast School of Real Estate II, Inc. ("Gold Coast"), a real estate school. During this time period, Gold Coast had five locations in Dade, Broward, and Palm Beach Counties. Respondent taught at all five locations. Sometime in August of 1993, Gold Coast terminated Respondent's employment as a real estate instructor. Respondent was given little or no advance notice of the termination. Respondent was extremely upset and distraught over the abrupt termination of his employment. Respondent's employment with Gold Coast was the primary source of income for his family. His contract with Gold Coast did not provide for any severance pay or benefits. After Respondent was terminated, he sent letters dated August 11, 1993 and August 20, 1993 to John Greer, vice president of Gold Coast. In those letters, Respondent threatened to report certain alleged improprieties in Gold Coast's operations to the Department of Professional Regulation (the "Department") unless Gold Coast provided Respondent with "an amicable severance package." Greer ignored the first letter he received from Respondent. After he received the second letter, Greer consulted with an attorney and conducted an investigation into the matters enumerated by the Respondent. Greer also reported the situation to the Department. Greer's investigation failed to corroborate any of the alleged improprieties that Respondent had threatened to report. The Department also conducted an investigation which did not result in any action against Gold Coast. In a letter to Respondent dated August 24, 1993, Greer responded to Respondent's August 11 and August 20, 1993 letters and stated, "[U]pon advice of counsel, I am informing you that the making of threats in pursuit of monetary gain is extortion." After receiving Greer's August 24 letter, Respondent discontinued his efforts to obtain a severance package from Gold Coast. Respondent sent a letter to Greer dated September 9, 1993, which stated "I certainly do no want my conduct to be construed as an extortion attempt . . . so, forget the severance check." Respondent never filed a lawsuit against Gold Coast nor has he made any other efforts to collect severance benefits. As of the date of the hearing, Gold Coast had not paid any kind of severance pay or severance benefits to Respondent. During the hearing in this case, Respondent expressed a great deal of remorse over his actions. He admitted that the two letters in August were ". . . rather stupid on my part . . ." and " . . . totally unprofessional . . ."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. As a penalty for the violation, Respondent should be reprimanded, an administrative fine of $250 should be imposed, and Respondent's licenses should be placed on probation for one year. DONE AND ENTERED this 16th day of December 1994 in Tallahassee, Leon County, Florida. 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 16th day of December 1994. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4 except the evidence established that the Respondent began working for Gold Coast in November of 1992. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Rejected as unnecessary. The subject matter is addressed in Findings of Fact 9. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 5 and 12. Adopted in pertinent part in Findings of Fact 5 and 13. Respondent's Proposed Findings of Fact. None submitted. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest 2nd Ave., Suite N-607 Miami, Florida 33128 Charles Seymour Smith 18768 Caspian Circle Boca Raton, Florida 33469 Darlene F. Keller, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Acting General Counsel Department of Buisness and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, John A. Nangle, is now and was at all times material to this matter, a licensed real estate salesman having been issued license number 0340127. He was employed in this capacity by Delray Realty, Inc. until January 4, 1982, when such employment terminated. Respondent did not thereafter become employed by another broker, but instead placed his license on inactive status. After heaving Delray Realty, Inc., Respondent negotiated a sales contract for the sale of a condominium unit from Marion Mowday to Anthony J. and Donna C. Amato, which closed on January 13, 1982. Respondent received $1,500.00 in compensation directly from the purchasers for his efforts in arranging this transaction.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's license for a period of three years. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. John A. Nangle 860 North West 8th Avenue Delray, Florida 33444 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 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.
