Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following facts were found: At all times relevant hereto, respondent was licensed as a real estate salesman in the State of Florida having been issued license No. 0204657 which license was inactive and scheduled to expire on March 31, 1983. Respondent's license was renewed on April 1, 1983. On or about May 13, 1983, on Information filed by the office of the State Attorney of the 12th Judicial Circuit in the State of Florida, respondent was charged with the commission of prostitution, lewdness or assignation; contrary to Section 796.07, Florida Statutes. Thereafter, on December 19, 1983, respondent made her appearance in the County Court of Sarasota County, Florida, before the Honorable Robert Stahlschmidt, County Court Judge, and entered a plea of no1o contendere to the charge of prostitution. On the same day, Judge Stahlschmidt, withheld adjudication; sentenced respondent to sixty (60) days in the county jail which was suspended; fined respondent $340, including court costs; placed respondent on supervised probation for a period of one (1) year under the supervision of the Salvation Army Correction Division upon the condition that she serve 50 hours of community services and not be involved in any acts of prostitution.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the respondent be found guilty of violation of Section 475.25(1)(f), Florida Statutes, 1983. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of REPRIMAND to the respondent. Respectively submitted and entered this 17th day of May, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 17th day of May, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Gerald C. Surfus, Esquire 150 East Avenue South Sarasota, Florida 33577 Sharla Speakman Post Office Box 4202 Sarasota, Florida 33578 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802
Findings Of Fact At all times pertinent to the matters involved herein; Petitioner held Florida real estate salesman's license number 0403224. Her license was listed with Century 21 ACR Equities; Inc., 4222 W. Fairfield Drive, Pensacola; on May 25; 1983. On March 4, 1985, Respondent listed her license with Century 21; Five Flags Properties; Inc., in Pensacola, without terminating her listing with ACR Equities. On March 22, 1985, Five Flags terminated her listing with that firm and on April 30; 1985, ACR Equities terminated her listing with that firm. On May 14; 1985; Respondent applied for a change of status to list her license with Old South Properties; Inc., in Pensacola. That firm terminated the association on July 9, 1985. On March 19; 1985; Emmison Lewis and his wife; Lillie Mae signed a handwritten sales agreement prepared by Respondent for the purchase of a piece of property located in Escambia County; for $33,000.00. The Lewises gave her a deposit of $500.00 by check made payable to Respondent and which bears her endorsement on the back. This check was made payable to Respondent because she asked that it be made that way. Several days later; Respondent came back to the Lewises and asked for an additional $1,500.00 deposit. This was given her, along with a rental payment of $310.00; in a $2,000.00 check on March 29, 1985. Respondent gave the Lewises the balance back in cash along with a receipt reflecting the payment of the $1,500.00. On that same date; Respondent had the Lewises sign a typed copy of the sales agreement which reflected that both the $500.00 deposit and the additional $1,500.00 were due on closing. This typed copy was backdated to March 19; 1985. Both the handwritten and typed copies of the sales agreement bear the signature of the Respondent as a witness. The sale was never closed and the Lewises have never received any of the $2;000.00 deposit back. On about four different occasions, Mr. Lewis contacted Respondent requesting that she refund their money and she promised to do so, but never did. They did, however, receive the $310.00 rent payment back in cash approximately two weeks later. On April 26, 1985, James E. Webster and his wife Pearlie signed a sales agreement as the purchasers of real estate with Respondent. This property had a purchase price of $31,900.00. At the time of signing, Mr. Webster gave Respondent $150.00 in cash and a check drawn by his wife on their joint account for $400.00. Due to Mrs. Webster's change of mind, the Websters did not close on the property. They requested a refund of their deposit and Respondent gave the Websters a check for $400.00 which was subsequently dishonored by the bank because of insufficient funds. The Websters called Respondent at home several times, but she was always out. Calls to the broker with whom her license was placed were unsuccessful. Finally, however, Respondent refunded the $400.00 to the Websters in cash. Respondent had listed her license with ACR Equities in May, 1983. At no time while Respondent had her license with Mr. Bickel's firm did she ever turn over to him as broker either the $2.000.00 she received from the Lewises or the $550.00 she received from the Websters. Mr. Bickel, the broker, was not aware of these contracts and did not question her about them. He terminated the placement of her license with his firm because he found out that in early March 1985, she had placed her license with another firm., Both sales agreements for the Lewises and that for the Websters had the firm name of ACR Equities printed on them as broker.
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that Respondent's license as a real estate salesman in Florida be revoked. DONE and ORDERED this 23rd day of May, 1986, in Tallahassee; Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Arthur R. Shell, Esquire p. O. Box 1900 Orlando, Florida 32802 Ralph Armstead; Esquire P. O. Box 2629 Orlando; Florida 32802
The Issue Whether Respondent's Florida real estate license should be revoked or otherwise disciplined for violations of Sections 475.25(1)(b), 475.25(1)(e), and 475.25(1)(k), Florida Statutes.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to enforce the provisions of Chapter 475, Florida Statutes, and the rules promulgated pursuant thereto. At all material times, Respondent, Lee Scott Marose, was a licensed real estate salesperson in the State of Florida, having been issued license No. 0584225, pursuant to Chapter 475, Florida Statutes. From December 10, 1993 to June 6, 1994, Respondent was employed as a real estate salesperson with Tam-Bay Realty, Inc., in Hillsborough County, Florida. On or about February 1, 1994, Respondent solicited and obtained a residential lease between Richard Akers, Sr. (Owner), and R. Dugan Fry (Tenant) for property located at 1731 Staysail Drive, Valrico, Florida. The lease provided for rental payments of $850.00 per month. On or about May 1, 1994, in accordance with the lease, the Tenant sent Respondent a check in the amount of $850.00 payable to Tam-Bay Realty. Respondent did not deliver the May 1, 1994 check to Tam-Bay Realty, but instead caused the Tenant to issue another check dated May 9, 1994, in the amount of $850.00 payable to Respondent. Respondent received the May 9, 1994 check, cashed the check, and diverted the funds to his own use. Due to Respondent's actions, Tam-Bay Realty refunded the money to the Owner, and dismissed Respondent from its employment. During the investigation of this matter by Petitioner, Respondent admitted to Petitioner's investigator the conversion of the rental check, but explained that his actions were an attempt to shorten the "turn-around" time on the rental check, and that he had been unable to replace the funds because money had been stolen from his personal checking account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found in violation of the above-cited statutory provisions, and that Respondent's Florida real estate license be revoked. RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of September, 1995. RICHARD HIXSON 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 8th day of September, 1995. APPENDIX As to Petitioner's proposed findings: 1.-9. Accepted and incorporated. COPIES FURNISHED: Steven W. Johnson,, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lee Scott Marose 18950 U.S. Highway 144, #133 Mount Dora, Florida 32757 Darlene F. Keller, Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 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.
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.
The Issue The issue in this case is whether Respondents are guilty of mishandling an escrow deposit.
Findings Of Fact Respondent Vu is and was at all material times a licensed real estate broker, holding Florida license number 0394778. He is and was at all material times the qualifying broker for Respondent American Homes and Investment Realty, Inc., which holds Florida license number 0250718. Respondent Vu owns Respondent American Homes. In 1990, Mr. and Mrs. Serge Delisfort contacted Respondents about purchasing a residence. The Delisforts eventually signed a contract to purchase a home and paid the $500 earnest money deposit to Respondents. Later learning that they would be liable to pay an annual homeowners' fee of $72, the Delisforts told Respondent Vu that they did not want to complete the purchase. The listing broker, which was not either Respondent, omitted mention of the homeowners' fee from the listing information supplied Respondents and the Delisforts. The sellers refused to release the deposit. Confronted with the dispute, Respondent Vu promptly requested an escrow disbursement order from the Florida Real Estate Commission on March 29, 1991. Due to the presence of a factual or legal dispute, the Florida Real Estate Commission informed Respondents, in a 47-word letter dated October 16, 1991, that it could not issue an escrow disbursement order. The October 16 letter warns Respondents to "immediately choose one of the other two alternatives available to you under ss. 475.25(1)(d), Florida Statutes, to settle this dispute, i.e., arbitration or a civil court." Instead, Respondents did nothing. The Delisforts periodically contacted Respondent Vu and asked if he could release their deposit. The sellers sold their house to another party and moved to Puerto Rico. The Delisforts contacted another broker and purchased a different house through the new broker. Eventually, the Delisforts contacted the Florida Real Estate Commission and asked its help in obtaining the deposit. An investigator for the Division of Real Estate interviewed Respondent Vu on March 1, 1994. Explaining the reason for the delay, Respondent Vu, possibly confused, stated that the buyers had left Orlando for awhile. In fact, the buyers had remained in Orlando. At the suggestion of the investigator, Respondent Vu contacted both parties, and they agreed to split the deposit equally. Respondent Vu prepared the paperwork, which the parties signed on March 11, 1994. At that time, Respondents paid each party $250. The Delisforts have since listed their home for sale by Respondents. While improperly holding the $500 deposit, Respondent Vu was preoccupied by the illnesses and deaths of his parents, who remained in Vietnam. Despite the possibility of trouble upon his return to Vietnam, Respondent Vu traveled to Vietnam at least once during this time to care for one or both of his parents. Respondents failed to implement timely the remedies established by law and identified by the Florida Real Estate Commission in its letter of October 26, 1991. Respondent Vu acted two and one-half years later, only after one of Petitioner's investigators contacted him. It is no excuse that the costs of arbitration or court would have consumed a large part of the amount in dispute. Confronted with that prospect, the sellers or the Delisforts would probably have settled the matter. If not, that would have been their problem, not Respondents'. The fact is that Respondents failed to discharge their obligations by presenting the dispute for resolution in a timely fashion. Nonetheless, the amount involved is modest. Neither party had a clear claim to the funds, nor was either party exceptionally troubled by Respondents' casual handling of the matter. The Delisforts contacted the Florida Real Estate Commission, but did not realize that they were in effect filing a complaint against Respondents, in whom they entrusted the sale of their current home. A final order issued July 18, 1988, involves Respondents' mishandling of a salesperson's commission. The husband of the salesperson owed Respondent Vu some money, and both men agreed that the debtor's wife would work off the debt by selling real estate at Respondent American Homes. However, the debtor's wife was of a different mind. After earning her first commission, she refused to allow Respondents to credit it against her husband's debt. When Respondent Vu ignored her demand for payment, she filed a complaint, which resulted in the final order and Respondents' proper payment of the commission.
Recommendation It is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding both Respondents guilty of violating Section 475.25((1)(d)1, reprimanding both Respondents, and requiring Respondent Vu to take a thirty-hour broker management course. ENTERED on February 22, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on February 22, 1995. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Steven W. Johnson, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Legal Section--Suite N-308 Hurston Bldg., North Tower 400 West Robinson Street Orlando, FL 32802-1772 Dau Viet Vu 1048 Pine Hills Rd. Orlando, FL 32808
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent John Politis has been a licensed real estate broker in the State of Florida, having been issued license number 0069773. The last license issued to him was as a broker for Florida Mortgage & Realty Co., 1001 West Cypress Creek Road, Fort Lauderdale, Florida. At the time of the events which are the subject of this dispute, Respondent Center Associates, Inc., was a corporation registered as a real estate broker in the State of Florida, having been issued license number 0259310. The last license issued was at the same street address and suite number as Florida Mortgage & Realty Co. At all times, Respondent Politis has been licensed and operating as the qualifying broker, the sole officer, the sole director, and the 100 percent stockholder of Respondent Center Associates. In approximately March of 1989, Catherine P. Young, a real estate salesperson licensed in the State of Florida, was employed by the Respondents to solicit and negotiate agreements for leases of commercial shopping center space through the Respondents. For the first three or four months of that employment, Respondents paid Young an agreed salary. Thereafter, that salary agreement was cancelled, and a second agreement was entered into among Young and the Respondents. Under that new agreement any commissions resulting from Young's efforts were to be split so that Young received 80 percent of the commission and the Respondents received 20 percent of that commission. It was further agreed that Young would pay for her own travel expenses and her long distance calls, while Respondents would bear the expense of providing the office and paying for the local telephone service. During the term of that second agreement, Young negotiated several commercial lease agreements to their conclusions and received the commissions to which she was entitled. In the leasing industry, one-half of the commission is paid when the lease is signed and one-half is paid when the tenant moves into the leased premises. However, the commission is owed as of the time that the lease is executed. On or about March 2, 1990, Young terminated her employment relationship with the Respondents. On the day she left the employ of Respondents, she met with Respondent Politis and discussed with him her claim for commissions on leases already fully executed through her efforts, but which commissions had not yet been paid to Respondents. Respondent Politis agreed that she was entitled to 80 percent of the commissions which Respondents had not yet received but which had resulted from Young's efforts. Young asked Respondent Politis to put that agreement in written form, and he agreed to do so. When Young returned the following week to sign the agreement, Respondent Politis informed her that he had changed his mind and had decided that he would not pay her any more commissions since she was no longer employed by the Respondents. Young advised Respondent Politis that she was still entitled to commissions earned by her during her employment as a result of her efforts even though the commissions were not paid to Respondents until after she left their employment. In response to Young's anger that Respondents would refuse to pay her commissions which she had already earned, Respondent Politis told Young that she could sue him. Thereafter, Respondents received real estate commissions on four or five transactions where commercial leases were entered into as a result of Young's efforts. Despite Respondents being aware that Young had made a claim for her share of those commissions, Respondents failed to pay Young any portion of those commissions and failed to place the disputed commissions in escrow until their dispute was resolved. Rather, when Respondents received those commissions, Respondent Politis deposited them into the operating account of Center Associates, Inc., and used those monies to re-pay himself for loans he had made to that corporation. By letter dated February 4, 1992, Respondent Politis wrote to Petitioner advising that Respondent Center Associates was no longer in existence and would not be filing for renewal of its broker's license. Thereafter, Petitioner's records were notated to reflect that Respondent Center Associates' licensure as a real estate broker was cancelled effective March 31, 1992. Young filed a civil lawsuit against Respondent Center Associates in the Circuit Court in Broward County. Young's complaint for damages alleged that Respondent Center Associates had failed to pay her the commission to which she was entitled on one specific transaction and also alleged that Respondent Center Associates would be receiving other commissions "over the next several months" to which Young was entitled. That complaint also alleged that Respondent Center Associates had breached its contract with Young by failing to pay Young monies due to her. The non-jury trial on Young's complaint was conducted on February 24, 1993. The Final Judgment for Plaintiff entered by the Court on March 1, 1993, ordered Respondent Center Associates to pay Young the sum of $51,505.04. That Final Judgment also provided for interest on the amount of judgment at the rate of 12 percent per year. By the time the Final Judgment was entered, Respondent Politis had "dissolved" the corporation and had "cancelled" the real estate broker license of Respondent Center Associates, Inc. Neither Respondent Politis nor Respondent Center Associates has paid any monies to Young in accordance with that Final Judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Dismissing the Administrative Complaint filed against Respondent Center Associates, Inc.; Finding Respondent John Politis guilty of the allegations contained in the Administrative Complaint; and Suspending Respondent John Politis' license as a real estate broker in the State of Florida for a period of ten years, said suspension to be terminated and his license to be reinstated earlier upon proof that he has made restitution to Catherine P. Young. DONE and ENTERED this 14th day of June, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 Administrat
Findings Of Fact Respondent, JAMES M. THOMAS, was at all times material to this proceeding a real estate broker licensed with the Florida Board of Real Estate and had been issued license number 0088265. Respondent, JAMES THOMAS REALTY, INC., was at all times material to this proceeding a Florida corporation licensed as a real estate broker and was issued license number 0180981. At all times material to this proceeding, Respondent, JAMES M. THOMAS, was the qualifying officer of the Respondent, JAMES THOMAS REALTY, INC. On May 7, 1980, Respondents, by and through their attorney, filed a civil lawsuit against Monroe Gray and Shirley Gray in which the Respondents sought the payment of a real estate brokerage commission in the Circuit Court of Hillsborough County, Florida. On May 7, 1980, the Respondents, by and through their attorney, filed a Notice of Lis Pendens in connection with the above referenced lawsuit. The sole purpose in the filing of the above referenced Complaint and Notice of Lis Pendens was to protect and collect a real estate brokerage commission which the Respondents believed was owed to them by the owners of the property. To the knowledge of Respondents, the Grays had no other assets located in Florida. On June 3, 1981, the Respondents, by and through their attorney, filed a Release of Lis Pendens on this property.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondents guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondents $250.00 each. DONE and ENTERED this 30th day of August, 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 30th day of August, 1982.
