Findings Of Fact At all times material, Respondent, Gary Dean Upton, was a licensed real estate broker having been issued license number 0090905. Respondent was the broker for the other Respondent herein, Dean Upton Realty, Inc., which has its offices situated at 7045 W. Broward Blvd., Ft. Lauderdale, Florida. At times material herein, Respondent, Dean Upton Realty, Inc., was a corporation licensed as a real estate broker having been issued license number 0213092. On March 11, 1983, a hearing was held before an arbitration panel of the Ft. Lauderdale Area Board of Realtors in response to a complaint filed by Respondent herein, Upton, claiming a commission from another realtor based upon an exclusive rental agreement for property owned by Rex and Martha Anderson. (Tr pages 23, 28) Subsequently, the Ft. Lauderdale Area Board of Realtors filed a complaint with the Department of Professional Regulation alleging possible perjury in connection with Upton's testimony at the hearing or forgery in connection with the exclusive listing agreement with the Andersons. Unrefuted testimony shows that during a meeting at Anderson's home in October, 1982, Rex Anderson initialed a listing brochure for the Anderson property. (Tr page 111-112; Respondents' Exhibit 3; Anderson deposition at page 9; referring to the March 22, 1983 letter at Petitioner's Exhibit 3, page 60, paragraph 3) Anderson claimed he did not intend to give Upton an exclusive listing. However, because of the strain he was under at the time the agreement was purportly executed, he could not swear that he did not initial the document. Anderson's testimony about being under a "severe strain" and unable to remember what occurred in connection with the exclusive listing agreement is not inconsistent with that of the only other eye witness who has testified regarding the transaction, Kevin Scott, a former associate of Upton who is presently involved in hotel management at the Royal Orleans Hotel in New Orleans, Louisiana. (Tr page 108) The day Upton visited the Anderson residence to obtain the listing, Rex Anderson, who had been laid off from his job as an airline pilot, appeared "very upset," and appeared to be drinking. (Tr page 110) Thereafter, Upton and Scott left the Anderson residence for a brief period. When they returned, Anderson was a "very flustered, very nervous and an agitated individual." (Tr page 114) The credible testimony of persons familiar with Upton's reputation for honesty in the community evidenced that he was not reputed to be a person who would forge someone's name on a listing agreement. (Testimony of Clemente, Apuna and Marion Upton at Tr pages 126, 143 and 145, respectively) Based on Respondent's testimony that Anderson initialed the exclusive listing agreement, Kevin Scott's testimony which was corroborative of Respondent Upton's testimony and Anderson's inability to state, without evasiveness, what occurred in connection with the exclusive listing agreement respecting the subject property, there is no competent and substantial evidence herein to establish that Respondent Upton either forged Rex Anderson's initials to the exclusive listing agreement or that he gave perjured testimony before the Fort Lauderdale Area Board of Realtors. On October 17, 1984, Respondent Upton pleaded nolo contendere to the felony offense of possession of an unlawfully issued driver's license. (Petitioner's Exhibit 5) The plea resulted in a withheld adjudication and a sentence of 18 months probation plus the payment of fines and court costs. In making the nolo contendere plea, Respondent Upton considered that such was in his best-interests; however, he felt that he was not guilty and has been a model probationer since October, 1984. (Testimony of Susan Jean Davis, Respondent Upton's correctional officer) Respondent has completed a 30-day residential treatment program for alcoholism at the Beachcomber in Delray Beach, Florida. Since that time, he has also participated successfully in the Broward County Commission of Alcoholism, Inc. DWI program. (Respondents' Exhibits 4, 5 and 8) Those persons who have had the opportunity to observe Respondent since his bout with alcoholism consider him a reformed alcoholic. (Testimony of former judge, Lawrence C. Roberts; Marion Upton and former Broward sheriff and judge, George Brescher) Kendall D. DeVeaux, Broward County's chief evaluator for the substance abuse program had the opportunity to evaluate and supervise Respondent Upton since his DWI and drug abuse offenses. DeVeaux's testimony corroborates that of Roberts and Marion Upton respecting Upton's reformation. Based on the foregoing factual findings and conclusions, and the mitigating factors introduced herein, I hereby make the following:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Gary Dean Upton's real estate broker's license number 0090905 be suspended for a period of six (6) months. In all other respects, it is RECOMMENDED that the complaints in Case Numbers 84-0138 be DISMISSED. RECOMMENDED this 8th day of October, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1985.
Findings Of Fact The Respondent, M. Betty Murray, currently holds Florida Real Estate Broker's License number 62943. At all times material to this proceeding, the license was in full force and effect. The Respondent represented L. O. Huckaby and Sarah Huckaby in the sale of property located at 363 Boylston Avenue, Daytona Beach, Florida, to Elizabeth T. Stein, the complainant in this proceeding. Pursuant to her representation of the Huckaby's, the Respondent, on or about June 18, 1979, prepared a proposed contract for the sale and purchase of the subject property. Prior to signing the contract and tendering a deposit thereunder, Ms. Stein reviewed the contract with her attorney, Berrien Becks, Sr. When reviewing the contract with Mr. Becks, Ms. Stein failed to inform either Mr. Becks or his secretary, Sylvia Van De Mark, that she intended to use the property as either a duplex or a triplex. Had Ms. Stein indicated such an intent, a provision to that effect would have been included in paragraph VIII of the contract for sale and purchase. This was the normal procedure utilized in the ordinary course of business by the Becks' law firm. The contract for sale, Respondents Exhibit 1, shows no such provision or notation. The sellers, Mr. and Mrs. Huckaby, were represented by Charles E. Booth, Esquire. On behalf of Ms. Stein, Mr. Becks requested that certain repairs be made to the property. Mr. Booth rejected these demands by letter dated July 24, 1979. Although the contract does not state that the property was intended to be used as a duplex, the property is in fact recognized as a de facto duplex under the nonconforming use provisions of the city's zoning ordinance. Had Ms. Stein elected to proceed with the sale, she would have been permitted to utilize the property as a two unit property so long as she lived in one of the units which was her expressed intent. Prior to paying the balance of the deposit due on the contract, Ms. Stein and the Respondent went to Mr. Booth's office where Mr. Booth confirmed by telephone conversation with city officials and in the presence of both Ms. Stein and the Respondent, the lawful use of the property as a single family residence with attached rental unit. Following this information, Ms. Stein paid the balance into the Respondent's escrow account. On August 20, 1979, Ms. Stein demanded return of the $9,000.00 deposit from the Respondent. Upon receipt of this demand, the Respondent contacted Mr. Booth who instructed her to retain the deposit in her escrow account. Mr. Booth and Mr. Becks negotiated a release which was signed by the Sellers on August 28, 1979 and by Ms. Stein on September 11, 1979. The release authorized disbursements to be made including $500.00 to the Respondent, $150.00 to Mr. Booth, $43.00 to Lawyers Title Services, Inc. and the remaining $8,307.00 to Ms. Stein. On August 20, 1979, prior to signing the release, Ms. Stein sent a complaint to the Board concerning the return of her $9,000.00. On September 7, 1979, Ms. Stein sent another letter to the Board indicating that she had not agreed to the disbursements set forth in paragraph 8 above notwithstanding her agreement to sign the release. Ms. Stein's attorney, Mr. Becks, witnessed the release and explained the legal implications of the release in detail to her prior to her signing. Mr. Stein did not inform Mr. Becks of her correspondence with the Board which attempted to disclaim the release. At no time did the Respondent represent the property as a triplex, but only as a single family residence with a single attached rental unit, which was a permissible use under the city zoning ordinance. In fact, Ms. Stein defaulted on the contract and under its express terms could have forfeited the entire $9,000.00. The release negotiated between Mr. Becks and Mr. Booth which returned $8,307.00 to Ms. Stein was generous and demonstrated good faith efforts on the part of the Sellers to settle this matter amicably. The Respondent has maintained her registered office at 231 Gradview, Daytona Beach, Florida. The office consists of a room where she maintains her business files and which can be closed for privacy. The allegations of Ms. Stein against the Respondent were untrue and were made with knowledge that neither the Huckaby's nor the Respondent had engaged in any illegal or unethical activities regarding this transactions. The testimony of Mr. Becks, attorney for Ms. Stein and the affidavit of Mr. Booth, attorney for the Huckaby's, corroborates the Respondent's testimony and contradicts the allegations made in the complaint filed by Ms. Stein and the administrative complaint filed by the Board which was based entirely upon Ms. Stein's allegations. Ms. Stein's failure to appear at the final hearing supports the conclusion that she knew the allegations made by her could not be proved at the hearing. Any equitable or legal rights which Ms. Stein may have had to pursue this matter ended when she knowingly and voluntarily signed a release in order to secure the return of a substantial portion of her deposit monies. In effect, the only misrepresentation in this case was that made by Ms. Stein when she represented that the release would extinguish all responsibilities, obligations and rights arising from the contract in return for the $8,307.00 and then effectively requested the Board to proceed against the Respondent.
The Issue The two issues raised in this proceeding are: (1) whether the basis and reason Respondent, Vestcor Companies, d/b/a Madalyn Landings (Vestcor), terminated Petitioner, Carlos Gomez's (Petitioner), employment on June 28, 2002, was in retaliation for Petitioner's protected conduct during his normal course of employment; and (2) whether Vestcor committed unlawful housing practice by permitting Vestcor employees without families to reside on its property, Madalyn Landing Apartments, without paying rent, while requiring Vestcor employees with families to pay rent in violation of Title VII of the Civil Rights Act of 1968, as amended, and Chapter 760.23, Florida Statutes (2002).
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying, exhibits offered in support of and in opposition to the respective position of the parties received in evidence, stipulations of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002), and the entire record compiled herein, the following relevant, material, and substantial facts are determined: Petitioner filed charges of housing discrimination against Vestcor with the Commission on August 30, 2002. Petitioner alleged that Vestcor discriminated against him based on his familial status and his June 28, 2002, termination was in retaliation for filing the charge of discrimination. Vestcor denied the allegations and contended that Petitioner's termination was for cause. Additionally, Vestcor maintained Petitioner relinquished his claim of retaliation before the final hearing; and under oath during his deposition, asserted he would not pursue a claim for retaliation. Petitioner was permitted to proffer evidence of retaliation because Vestcor terminated his employment. The Commission's Notice was issued on January 7, 2005. The parties agree that Petitioner was hired by Vestcor on June 25, 2001, as a leasing consultant agent for Madalyn Landing Apartments located in Palm Bay, Florida. Petitioner's job responsibilities as a leasing consultant agent included showing the property, leasing the property (apartment units), and assisting with tenant relations by responding to concerns and questions, and preparing and following up on maintenance orders. Petitioner had access to keys to all apartments on site. At the time of his hire, Petitioner was, as was all of Vestcor employees, given a copy of Vestcor's Employee Handbook. This handbook is required reading for each employee for personal information and familiarity with company policies and procedures, to include the company requirement that each employee personally telephone and speak with his/her supervisor when the employee, for whatever reason, could not appear at work as scheduled, which is a basis and cause for termination. The parties agree that Vestcor's handbook, among other things, contains company policies regarding equal employment; prohibition against unlawful conduct and appropriate workplace conduct; procedures for handling employee problems and complaints associated with their employment; and procedures for reporting illness or absences from work, which include personal notification to supervisors, and not messages left on the answering service. Failure to comply with employment reporting polices may result in progressive disciplinary action. The parties agree that employee benefits were also contained in the handbook. One such employee benefit, at issue in this proceeding, is the live-on-site benefit. The live-on- site benefit first requires eligible employees to complete a 90-day orientation period, meet the rental criteria for a tax credit property, and be a full-time employee. The eligible employee must pay all applicable security deposits and utility expenses for the live-on-site unit. Rent-free, live-on-site benefits are available only to employees who occupy the positions of (1) site community managers, (2) maintenance supervisors, and (3) courtesy officers. These individuals received a free two-bedroom, two-bathroom apartment at the apartment complex in which they work as part of their employment compensation package. The rent-free, live-on-site benefit is not available for Vestcor's leasing consultant agent employees, such as Petitioner. On or about July 3, 2001, Petitioner entered into a lease agreement with Vestcor to move into Apartment No. 202-24 located at Madalyn Landing Apartments. The lease agreement ended on January 31, 2002. The lease agreement set forth terms that Petitioner was to receive a $50.00 monthly rental concession, which became effective on September 3, 2001. Although he was eligible for the 25-percent monthly rental concession, to have given Petitioner the full 25 percent of his monthly rental cost would have over-qualified Petitioner based upon Madalyn Landing Apartment's tax credit property status. Petitioner and Vestcor agreed he would receive a $50.00 monthly rental concession, thereby qualifying him as a resident on the property. Petitioner understood and accepted the fact that he did not qualify for rent-free, live-on-site benefits because of his employment status as a leasing consultant agent. Petitioner understood and accepted Vestcor's $50.00 monthly rental concession because of his employment status as a leasing consultant agent. The rental concession meant Petitioner's regular monthly rental would be reduced by $50.00 each month. On September 1, 2001, Henry Oliver was hired by Vestcor as a maintenance technician. Maintenance technicians do not qualify for rent-free, live-on-site benefits. At the time of his hire, Mr. Oliver did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Oliver was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 13, 2001, Michael Gomez, the brother of Petitioner (Mr. Gomez), commenced his employment with Vestcor as a groundskeeper. Groundskeepers did not meet the qualifications for rent-free, live-on-site benefits. At the time of his hire, Mr. Gomez did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Gomez was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 21, 2001, 81 days after his hire, Mr. Oliver commenced his lease application process to reside in Apartment No. 203-44 at Madalyn Landing Apartments. Mr. Oliver's leasing consultant agent was Petitioner in this cause. Like other eligible Vestcor employees and as a part of the lease application process, Mr. Oliver completed all required paperwork, which included, but not limited to, completing a credit check, employment verification, and income test to ensure that he was qualified to reside at Madalyn Landing Apartments. Fifteen days later, on November 28, 2001, Mr. Gomez commenced his lease application process to reside in Apartment No. 206-24 at Madalyn Landing Apartments. As part of the leasing process, Mr. Gomez, as other eligible Vestcor employees who intend to reside on Vestcor property, completed all necessary paperwork including, but not limited to, a credit check and employment verification and income test to ensure he was qualified to reside at Madalyn Landing Apartments. Included in the paperwork was a list of rental criteria requiring Mr. Gomez to execute a lease agreement to obligate himself to pay the required rent payment, consent to a credit check, pay an application fee and required security deposit, and agree not to take possession of an apartment until all supporting paperwork was completed and approved. Mr. Gomez's leasing consultant was Petitioner. On December 28, 2001, Petitioner signed a Notice to Vacate Apartment No. 206-24, effective February 1, 2002. The Notice to Vacate was placed in Vestcor's office files. Petitioner's reasons for vacating his apartment stated he "needed a yard, garage, more space, a big family room, and some privacy." Thirty-four days later, February 1, 2002, Mr. Gomez moved into Apartment No. 206-24 at Madalyn Landing Apartments without the approval or knowledge of Vestcor management. On January 9, 2002, a "Corrective Action Notice" was placed in Petitioner's employee file by his supervisor, Genea Closs. The notice cited two violations of Vestcor's policies and procedures. Specifically, his supervisor noted Petitioner did not collect administration fees from two unidentified rental units, and he had taken an unidentified resident's rental check home with him, rather than directly to the office as required by policy. As a direct result of those policy violations, Ms. Closs placed Petitioner on 180 days' probation and instructed him to re-read all Vestcor employees' handbook and manuals. Petitioner acknowledged receiving and understanding the warning. At the time she took the above action against Petitioner, there is no evidence that Ms. Closs had knowledge of Petitioner's past or present efforts to gather statements and other information from Mr. Gomez and/or Mr. Oliver in anticipation and preparation for his subsequent filing of claims of discrimination against Vestcor. Also, on January 9, 2002, Petitioner was notified that his brother, Mr. Gomez, did not qualify to reside at Madalyn Landing Apartments because of insufficient credit. Further, Petitioner was advised that should Mr. Gomez wish to continue with the application process, he would need a co-signer on his lease agreement or pay an additional security deposit. Mr. Gomez produced an unidentified co-signer, who also completed a lease application. On January 30, 2002, the lease application submitted by Mr. Gomez's co-signor was denied. As a result of the denial of Mr. Gomez's co-signor lease application, Vestcor did not approve Mr. Gomez's lease application. When he was made aware that his co-signor's application was denied and of management's request for him to pay an additional security deposit, as was previously agreed, Mr. Gomez refused to pay the additional security deposit. As a direct result of his refusal, his lease application was never approved, and he was not authorized by Vestcor to move into any Madalyn Landing's rental apartment units. At some unspecified time thereafter, Vestcor's management became aware that Mr. Gomez had moved into Apartment No. 206-24, even though he was never approved or authorized to move into an on site apartment. Vestcor's management ordered Mr. Gomez to remove his belongings from Apartment No. 206-24. Subsequent to the removal order, Mr. Gomez moved his belongings from Apartment No. 206-24 into Apartment No. 103-20. Mr. Gomez's move into Apartment No. 103-20, as was his move into Apartment No. 206-04, was without approval and/or authorization from Vestcor's management. Upon learning that his belonging had been placed in Apartment No. 103-20, Mr. Gomez was again instructed by management to remove his belongings. After he failed and refused to move his belongings from Apartment No. 103-20, Vestcor's management entered the apartment and gathered and discarded Mr. Gomez's belongings. As a leasing contract agent, Petitioner had access to keys to all vacant apartments. His brother, Mr. Gomez, who was a groundskeeper, did not have access to keys to any apartment, save the one he occupied. Any apartment occupied by Ms. Gomez after his Notice to Vacate Apartment No. 103-20 was without the knowledge or approval of Vestcor and in violation of Vestcor's policies and procedures. Therefore, any period of apartment occupancy by Mr. Gomez was not discriminatory against Petitioner (rent-free and/or reduced rent), but was a direct violation of Vestcor's policies. On February 10, 2002, Mr. Oliver signed a one-year lease agreement with Vestcor. Mr. Oliver's lease agreement reflected a 25-percent employee rental concession. Throughout Mr. Oliver's occupancy of Apartment No. 203-64 and pursuant to his lease agreement duration, Mr. Oliver's rental history reflected his monthly payment of $413.00. There is no evidence that Mr. Oliver lived on site without paying rent or that Vestcor authorized or permitted Mr. Oliver to live on site without paying rent, as alleged by Petitioner. On June 2, 2002, Ms. Closs completed Petitioner's annual performance appraisal report. Performance ratings range from a one -- below expectations, to a four -- exceeds expectations. Petitioner received ratings in the categories appraised as follows: Leasing skills -- 4; Administrative skills -- 2, with comments of improvement needed in paperwork, computer updating, and policy adherence; Marketing skills -- 4, with comments that Petitioner had a flair for finding the right markets; Community awareness -- 3, with no comment; Professionalism -- 2, with comments of improvement needed in paperwork reporting; Dependability -- 2, with comments of improvement needed in attendance; Interpersonal skills -- 3, with no comments; Judgment/Decision-making -- 3, with no comments; Quality of Work -- 2, with comments that work lacked accuracy; Initiative -- 4, with no comment; Customer service -- 3, with no comments; Team work -- 2, with comments of improvement needed in the area of resident confidence; Company loyalty -- 2, with comments of improvement needed in adherence to company policy and procedures; and Training and development -- 3, with no comments. Petitioner's Overall rating was 2.5, with comments that there was "room for improvement." On June 27, 2002, while on 180 days' probation that began on January 9, 2002, Petitioner failed to report to work and failed to report his absence to his supervisor, Ms. Closs, by a person-to-person telephone call. This conduct constituted a violation of Vestcor's policy requiring all its employees to personally contact their supervisor when late and/or absent from work and prohibited leaving messages on the community answering service machine. On June 28, 2002, Petitioner reported to work. Ms. Closs, his supervisor, informed Petitioner of his termination of employment with Vestcor for failure to report to work (i.e. job abandonment) and for probation violation, as he had been warned on January 9, 2002, what would happen should a policy violation re-occur. It was after his June 28, 2002, termination that Petitioner began his personal investigation and gathering of information (i.e., interviews and statements from other Vestcor employees) in preparation to file this complaint. Considering the findings favorable to Petitioner, he failed to establish a prima facie case of retaliation by Vestcor, when they terminated his employment on June 28, 2002. Considering the findings of record favorable to Petitioner, he failed to establish a prima facie case of housing and/or rental adjustment discrimination by Vestcor, based upon familial status of himself or any other employer. Petitioner failed to prove Vestcor knowingly and/or intentionally permitted, approved, or allowed either Mr. Gomez or Mr. Oliver to live on site without a completed and approved application followed by appropriate rent adjustments according to their employment status and keeping within the tax credit requirement, while requiring Vestcor employees with families (or different employment status) to pay a different monthly rent in violation of Title VII of the Civil Rights Act of 1968. Petitioner failed to prove his termination on June 28, 2002, was in retaliation for his actions and conduct other than his personal violation, while on probation, of Vestcor's policies and procedures.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Rights enter a final order dismissing the Petition for Relief alleging discrimination filed by Petitioner, Carlos Gomez. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005.
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 20th day of January, 1986
Findings Of Fact At all times here involved, Respondents Robert P. Powers and Allen L. Lindow were real estate brokers registered with Petitioner, Alan M. Levy was a salesman registered with Petitioner, and Quality Rentals, Inc. was registered as a corporate broker. During the summer of 1978 Respondent Levy became interested in acquiring a corporate broker and learned from Cynthia Odeneal that she had an inactive corporation that she could transfer to him. This corporation, Quality Rentals, Inc., was registered with the Secretary of State in 1977, but the authorized stock had never been issued nor had the corporation ever engaged in business. Ms. Odeneal assigned her subscription rights to the stock in the corporation to Levy by letter of 15 September 1978 which was received by him in October 1978. At the time Quality Rentals was incorporated Ms. Odeneal was doing business in Gainesville as Gates Rentals. The mailing address supplied to the Secretary of State for Quality Rentals, Inc. was Ms. Odeneal's residence address. Rose J. Vines was employed by Ms. Odeneal in Gator Rentals. In the summer of 1978 Ms. Odeneal contemplated moving Gator Rentals to a new address in Gainesville, but after she and Ms. Vines visited those offices, Ms. Odeneal decided to close Gator Rentals. On 15 September 1978 Ms. Vines leased this office space she and Ms. Odeneal had looked at and opened a lease referral service under the name of Quality Rentals. No authorization to use the name Quality Rentals was given by Ms. Odeneal and when she became aware of the use of her corporate name, she told Ms. Vines to stop. This occurred after Ms. Odeneal had transferred the subscription rights to Quality Rentals, Inc. stock to Levy. Ms. Vines paid the first month's rent in September, but no further rental payments were made. The second-month rental, due October 5, 1978, was extended until 15 October. When payment was not received then, the lease was terminated. During the period of September and October 1978, Rose Vines d/b/a Quality Rentals, advertised a lease referral service and charged fees to allow customers to look at lists of places for rent. In November 1978 Levy, holding subscription rights to the corporation, entered into discussions with Respondent Lindow for the latter to serve as broker and active firm member of Quality Rentals, Inc. Lindow, with the assistance of Levy, prepared and submitted the application for registration of Quality Rentals, Inc. (Exhibit 1) dated 15 November 1979. Lindow never performed any broker functions or received any compensation from Quality Rentals. By letter dated 8 January 1979 Lindow resigned as active firm member of Quality Rentals, Inc. By application dated 11 January 1979 Robert Powers applied for registration as active firm member of Quality Rentals, Inc. On December 5, 1978 the Secretary of State dissolved Quality Rentals, Inc. for failure to file the annual corporation report due before July 1978. This dissolution, effective 8 December 1978, was mailed to Quality Rentals at the former address of Gator Rentals, then closed. Notice of this dissolution was not received by Levy or anyone at Quality Rentals, Inc. until after the corporate report submitted January 1979 was received by the Secretary of State's office. Quality Rentals was then notified of the dissolution and the additional fees necessary to restore the corporation. Upon receipt of this information, the attorney for Quality Rentals submitted the necessary documentation and fees and Quality Rentals, Inc. was restored to good standing. At no time during this period was any Respondent aware of the activities of Ms. Vines in Gainesville under the name of Quality Rentals.
The Issue The issue is whether Respondent engaged in prohibited discriminatory conduct against Petitioners, Irene Cassermere (Ms. Cassermere) and Milagross Diaz (Ms. Diaz), within the terms and conditions, privileges, or provisions of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes (2002).
Findings Of Fact Ms. Diaz is a female of Hispanic ethnicity with a physical disability that limits one or more of her major life activities. At all times material, she lived in the State of New York. Ms. Diaz was in Florida during the month of February 2002. On February 20, 2002, she completed an application for lot rental in the Sherwood Forrest Mobile Home Park (Sherwood Forest) with the intent to purchase a mobile home located on a rental lot at 216 London Drive, Kissimmee, Florida, owned by Beth Koze (Ms. Koze), who did not testify. Respondent informed Ms. Diaz that her credit check would be completed within a couple of days to ascertain her income and credit history. It was her understanding that Respondent had no interest in the potential purchase transaction between her and Ms. Koze. However, Respondent explained to Ms. Diaz, that ownership of a mobile home at the time of application was not required in order to be approved. According to Ms. Diaz, Respondent eventually informed her that due to insufficient income shown on her application she had been disapproved for lot rental. Ms. Diaz testified that Respondent informed her that she needed approximately twice the amount of her reported monthly income to qualify for lot rental approval. Thereafter, Ms. Diaz submitted a second lot rental application to Respondent. On the second application, Ms. Diaz included a co-applicant, Ms. Cassermere, who intended to relocate to Florida with her when the mobile home purchase and the lot rental application were completed. No monthly income for Ms. Cassermere was included on the lot rental application. On the second lot rental application, Ms. Diaz testified that she listed her "Occupation of Applicant" as "disabled." In the column regarding "income," she included her income and listed a Mr. LaRosa as a source of monthly income of $400.00, the amount she claimed Respondent previously informed her she needed to qualify for lot rental. According to Ms. Diaz, Respondent received her second lot rental application and called her to discuss the matter. During the conversation Respondent asked "[W]hat she was doing for Mr. LaRosa that he would put out $400.00 on her behalf." Ms. Diaz testified that she was offended by the tone of Respondent's voice and the implications that she believed prompted the question. She believed the question to have been irrelevant and did not answer. Ms. Diaz testified that in the "Assets and Income" column of her second lot rental application, she listed the amount of $10,000. When asked by Respondent the source of the $10,000, which apparently was not initially included on her first lot rental application, she explained to Respondent she intended to make a cash purchase of the mobile home from Ms. Koze for $10,000. When asked by Respondent the source of such a large sum, when her monthly income was insufficient to qualify for lot rental, she explained that she was to receive a lump sum, five years' retroactive social security benefit payment. Ms. Diaz testified that approximately one month after submitting her second rental lot application to Respondent and having received no response, she called Ms. Koze to ascertain the status of the mobile home sale. Ms. Diaz also testified that Ms. Koze advised her to call Respondent to find out what was holding up her second lot rental application. Believing the lot rental approval was a condition precedent to the mobile home sale, Ms. Diaz testified that at no time during her conversation with Ms. Koze did Ms. Koze advise her that she intended to take the mobile home off the market. Ms. Diaz then called Respondent and spoke with Andy Windfelder (Mr. Windfelder) about the rental lot application status. Mr. Windfelder told her to call Ms. Koze. Ms. Diaz's recollection of the telephone conversation between her and Ms. Koze follows: [A]t this point it's just too much trouble, that at this point she was going to keep the house. . . for a family member--So I told her at this point, she's been patient and she's been holding up with me for that whole time that we were waiting on this credit report, which is four weeks, that I'm not going to put her on the spot of going against them and tell me what transpired in that conversation for them to convince her not to sell to me. I told her that at that point I have no alternative but to tell her that I was going to go file a housing complaint, and I'm sorry that I would have to involve her, but that we had a contract and I gave her a deposit. So at that point she took my name and address and she mailed me my deposit back on a check, and at that point, I didn't contact Sherwood--I contacted Sherwood Forest only to tell them right after that that I filed this housing complaint, that I was going to file this housing complaint . . . As stated, Ms. Diaz filed her discrimination complaint with the Florida Commission on Human Relations and no longer communicated directly with Respondent regarding the matter. The core of Ms. Diaz's complaint is Respondent's failure, or refusal, to contact her by mail or by telephone about the result of her second lot rental application. Further, Ms. Diaz opined that Respondent pressured Ms. Koze not to sell her mobile home to her, which caused Ms. Koze to return Ms. Diaz's purchase contract deposit money. Ms. Diaz argued that Respondent's conduct, unreasonable delay in acting upon her lot rental application and pressure on Ms. Koze not to sell, had two direct effects: (1) she lost the opportunity to purchase the mobile home located on the rental lot at 216 London Drive, Kissimmee, Florida, and (2) she was denied the right to reside in Respondent's facility because she was a dark, disabled, Hispanic female. At all times material, Jeff Leeds (Mr. Leeds) was general manager of Sherwood Forest in Kissimmee, Florida. In that position, Mr. Leeds supervised a staff of 28 persons, of whom many were Hispanic. The park consisted of approximately 1,600 rental sites. According to Mr. Leeds, approximately 30 percent of Sherwood Forest residents were Hispanic, and he had never met Ms. Diaz. According to Mr. Leeds, Ms. Diaz's background check reflected insufficient income that raised an alert. Her second application, based upon his conversation with Ms. Diaz, would include her sister, Ms. Cassermere, as co-applicant. Ms. Diaz was unaware that in October 2003, Ms. Koze placed her mobile home back on the market and was willing to sell to her. This information was made available to Ms. Diaz by and through Respondent through the report provided to Respondent by the Commission's investigator. Based on the evidence of record, Ms. Diaz failed to present any credible evidence to substantiate her claim of discrimination. Ultimate Factual Determinations Respondent rejected Ms. Diaz's initial lot rental application, not because of her handicap or her Hispanic ethnicity, but because through a reasonable process of credit check references, it was discovered that Ms. Diaz's disability income was insufficient to meet Respondent's requirements for lot rental. The additional income of $400.00, an apparent loan from her friend, entered on her second rental lot application raised reasonable concerns; and, when inquiry was made, she refused to respond. There is no credible, competent evidence that Respondent attempted to influence and/or pressure the mobile home owner, Ms. Koze, to take her mobile home off the market and/or cancel her contract for sale with Ms. Diaz. Ms. Koze voluntarily returned Ms. Diaz's deposit money. There is no credible, competent evidence that Respondent intentionally delayed processing Ms. Diaz's second lot rental application with the intent or for the purpose of denying her approval because of her disability, gender, or her Hispanic ethnicity. In short, Respondent did not unlawfully discriminate against Ms. Diaz; rather, the delay caused by her second lot rental application to Respondent was for a legitimate, nondiscriminatory reason and was not proven to be the reason Ms. Koze took her mobile home off the market.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing Petitioners', Irene Cassermere and Milagross Diaz, Petition for Relief. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2004.
The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2011.
Findings Of Fact At all material times, the Respondent Jay R. Toll ("Toll") was a licensed real estate broker, acting as the sole qualifying broker and officer of the Respondent The Home Agency Real Estate Corporation ("Home Agency"). At the time of the hearing, the licenses of the Respondent Toll and the Respondent Home Agency had expired, and were thus in inactive status. From October of 1980 to April 8, 1981, Laura Oxford was employed as a salesman for Home Agency. On April 8, 1981, Laura Oxford expired. By letter dated June 10, 1981, Attorney W. J. McNaughton, representing the estate of Laura Oxford, notified the Respondent Toll that he was to retain all commissions, together with a full accounting thereof, in Toll's escrow account until McNaughton advised Toll as to the time when the money should be delivered to the estate. By letter dated June 19, 1981, Toll responded that he owed Laura Oxford $883.73 for the Hawkins to Macaluso sales transaction, and that he would keep that sum in escrow. By letter of October 22, 1982, McNaughton informed Toll to forward the check for all commissions due to Laura Oxford to the estate of Laura Oxford. Hearing no response from Toll, McNaughton again wrote to both Respondent Toll and Respondent Home Agency and requested them to forward the commissions due Laura Oxford. McNaughton also stated that if he had not heard from Toll within seven days of Toll's receipt of the letter, he would report Toll to the Florida Real Estate Commission. Again hearing no response, McNaughton wrote to Toll on January 5, 1983 requesting the $883.73, and also indicated to Toll that McNaughton was aware of four real estate deals at the time of Oxford's death, for which she may have been owed commissions. This letter was sent to Toll at his home address, and to Home Agency at its business address, certified mail, but both were returned unclaimed. When this last attempt at communication with the Respondents' failed, McNaughton advised Ralph Oxford, personal representative of the estate of Laura Oxford, to file a complaint with the Florida Real Estate Commission. On February 26, 1982, Toll's escrow account in which the $883.73 in commission due Laura Oxford had been maintained was closed, and the funds were thereafter not maintained in escrow. The complaint Ralph Oxford filed against the Respondents was investigated from April 20, 1983 to May 27, 1983, by Department Investigator Frank King. On May 20, 1983, Frank King interviewed Toll with regard to Mr. Oxford's complaint. During that interview, Toll admitted that he owed the estate of Laura Oxford $927.50 for the Miller to Rivera sales transaction and $75 for the Price to Rosario sales transaction. Ralph Oxford first became aware that there were commission monies due Laura Oxford in excess of $883.73 when investigator Frank King so notified him during the course of investigation of Toll. At no time prior to May, 1983 did Toll report to McNaughton or Ralph Oxford that additional monies were due Laura Oxford. Toll utilized the commissions due the estate of Laura Oxford for his own use and benefit without the prior knowledge and consent of Laura Oxford or her estate. On July 25, 1980, Toll submitted an application for licensure of The Home Agency Real Estate Corporation, listing Jill Harris, wife of Harvey Harris, as vice president and registered agent of the corporation, and listing Harvey Harris as a 50 percent owner in the corporation. On July 29, 1980, Harvey Harris gave Toll a check in the amount of $2,550 as partial payment for ownership of 50 percent of Home Agency. The total purchase price for 50 percent of the stock of Home Agency was $3,500.00. The original agreement between Harvey Harris and Toll was that Harris was to own 50 percent of the profits of the corporation. The stock was never issued. On August 19, 1980, Harvey Harris became employed by Home Agency as a real estate salesman and remained so employed until approximately April 22, 1981. Early in Harris' employment, Toll told Harvey Harris that he did not want partners in the corporation, and offered instead to make Harvey Harris sales manager with Harvey Harris receiving 60 percent of listings and sales and Home Agency receiving 40 percent. Harvey Harris was also to get $100 for each deal that came in the office and $50 a week toward car allowance. Toll's agreement with Harvey Harris included the provision that Toll be placed on all of Harvey Harris' listings so that if Harris was out of the office canvassing or training salespeople and customers called to inquire about a listing, Toll would be able to take the calls. Further, if Harris took a listing and was also selling salesman for the listing, he would retain 70 percent of the money with 30 percent going to Home Agency. Through several payments, Toll paid back the $3,500 originally paid to him by Harvey Harris for the stock. Harris was the listing salesman in the Brown to Herrara transaction. Toll took no part in the listing which was sold by another real estate office. Under the terms of the agreement between Toll and Harris, Harris should have received 60 percent of Home Agency's share of the commission. Home Agency received $2,349 as commission, and Harris was to receive $1,404.00. Instead, Harvey Harris received nothing. When Harris demanded his commission, Toll told him that he needed the money to keep Home Agency open and stated that he would pay Harris back. Harvey Harris was the listing salesman in the Lassiter to O'Bier transaction. Toll procured the purchasers, the O'Biers. In that transaction Home Agency received $3,750.00. Toll should have received 60 percent of that amount, but instead received nothing. Harris discussed the commission with Toll and was again told by Toll that he needed the money to keep the office open. Harvey Harris was both the listing and rental salesman in the Temple Israel to Mishel rental transaction. As such, he was entitled to 70 percent of the $700 commission. Instead Harvey Harris received $175.00. When he confronted Toll about the additional monies due him, Toll told him that that was all he would receive. Harris was the selling salesman in the Carsaglia to Caveras transaction. The listing was held by 4 percent Realty. Toll had no involvement in the transaction, other than rewording the contract. Harris was due 60 percent of the commission in the Carsaglia to Caveras transaction. Home Agency received approximately $2,200.00. Harris received $570.19, significantly less than the approximately $1,320 that he was entitled to receive. Harris was the listing salesman and selling salesman in the Force to Albertoria transaction. Home Agency received $3,720 in commissions from that transaction. Under the terms of his agreement with Toll, Harris was to receive 70 percent of that commission. Instead, Toll paid Harris $116 initially, with twelve payments of $88.85 due monthly. Toll did not pay the last two payments in the amount of $88.85 to Harris. Harris received no other monies from Toll on the commissions previously discussed, and when he requested the commissions and pursued the point he was fired. After leaving Toll's employment, Harris repeatedly requested the commissions and Toll failed to deliver them. The Respondent Toll presented no defense to the allegations involving Laura Oxford, but did defend the statements of Harris by presenting testimony that Harris in fact was indebted to Home Agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Real Estate Commission finding the Respondents guilty of Count One of the Administrative Complaint and suspending the licenses of Jay R. Toll and The Home Agency Real Estate Corporation for a period of three (3) years. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 March, 1984.
