Findings Of Fact Respondent Jordan Delan Mayor was exclusively connected with International Land Brokers, Inc., as a real estate salesman, from December 1, 1975, to March 29, 1976. During the period of respondent's employment, Walter J. Pankz, a real estate broker, was also associated with International Land Brokers, Inc. At least until shortly before respondent began work with International Land Brokers, Inc., one of the corporation's offices consisted of two rooms. The front room contained a desk for Mr. Kramer, another real estate broker, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex has a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc. began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc. had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 21st day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire, and Mr. Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Sherman Bennett Mayor, Esquire, and Mr. Eugene Steinfeld, Esquire 174 East Flagler Street Suite 1007 Miami, Florida 33131
Findings Of Fact Respondent Charlene Touby was exclusively connected with International Land Brokers, Inc., as a real estate salesperson, from May 23, 1975, to September 30, 1975; and again from November 17, 1975, until the filing of the complaint (and for some time thereafter). During the first period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex has a regular telephone line and a WATS line. Attached to the walls of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. l, together with the last page, were at one time posted on the walls of some of the cubicles. By the time respondent began her second period of employment with International Land Brokers, Inc., Walker J. Pankz had joined the firm as a broker. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salespersons had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. A week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc. a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc. began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc. had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 12th day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire and Mr. Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Charles A. Finkel, Esquire 801 East Hallandale Beach Boulevard Hallandale, Florida 33009
The Issue The issues in this case are whether Respondent, Rosa Fernandez, committed the violations alleged in a six-count Administrative Complaint filed with the Petitioner Department of Business and Professional Regulation on July 17, 2008, and, if so, what disciplinary action should be taken against her Florida real estate broker license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes. The Division is charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Rosa Fernandez, is, and was at the times material to this matter, the holder of a Florida real estate broker license, license number 3000310, issued by the Division. At all times relevant, Ms. Fernandez was the broker for Vizcaya Realty of Miami, Inc., located at 1630 Southwest 17th Terrace, Miami, Florida 33145. Count One. In August 2005, Ms. Fernandez was the listing agent in the Multiple Listing Service (hereinafter referred to as the “MLS”), for property located at 1827 Southwest 18th Avenue, Miami, Florida 33145 (hereinafter referred to as the “Count One Property”). She also represented the buyer in the sale of the Count One Property. The Count One Property, despite the fact that Ms. Fernandez had listed the property in the MLS for $285,000.00, was purchased for $350,000.00, facts which Ms. Fernandez had to be aware of. In response to a complaint concerning Ms. Fernandez’s real estate broker practice, Derrick Ham, an investigator for the Division, met with her. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count One Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count One Property. While the evidence as to Ms. Fernandez’s precise role in the sale and purchase of the Count One Property was not clear (there was a letter in the file purporting to discharge her services by the seller of the property, but she still continued to be involved with the transaction thereafter), at no time while meeting with Mr. Ham did she indicate that she did not act as broker for the property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: A broker’s disclosure, an executed sales contract, or a closing statement (HUD1 form); An explanation as to why the sales price ($350,000.00) exceeded the listing price ($285,000.00). Nor was there an authorization from the seller authorizing the change in listing price; and A valid listing agreement between the broker and the seller of the Count One Property. Count Two. In April 2005, Ms. Fernandez represented Carlos Damain in the purchase of property owned by Isaac and Teresa Moncarz, which was located at 447 Aragon Avenue, Coral Gables, Florida 33134 (hereinafter referred to as the “Count Two Property”). The Count Two Property was purchased for $595,000.00, although it was listed for sale at $545,000.00, facts which Ms. Fernandez had to be aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Two Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Two Property. Upon review of the records provided to Mr. Ham, it was found that, while the file contained a sales contract and an HUD1 form for the Count Two Property, the following information or documents were not maintained in Ms. Fernandez’s records: A broker disclosure; An explanation as to why the sales price ($595,000.00) exceeded the listing price ($545,000.00). While a “bidding war” would explain this discrepancy, there was no evidence in the file that such a bidding war had taken place; While the file contained a sales contract, nothing in the sales contract dealt with any repairs to the Count Two Property in connection with the sale. Count Three. In March 2006, Ms. Fernandez represented Ramon Rubiera in the purchase of property located at 1852 Southwest 10th Street, Miami, Florida 33135 (hereinafter referred to as the “Count Three Property”). The Count Three Property, despite the fact that the property was listed for $450,000.00, was purchased for $499,000.00, facts which Ms. Fernandez had to be aware of. Pursuant to an addendum to the contract for the sale to Mr. Rubiera of the Count Three Property, the property was sold to Blanca Dellasera on or about April 12, 2006. The sales price increased to $515,000.00. The increase in price, according to the contract, was for “repairs.” Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Three Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Three Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: the HUD1 failed to reflect the terms of the contract without explanation. In particular, the HUD1 indicated a seller’s contribution of 3 percent while the contract provided for a 6 percent seller’s contribution. Count Four. On or about April 20, 2005, Ms. Fernandez represented the buyer of property located at 903 Red Road, Miami, Florida (hereinafter referred to as the “Count Four Property”). The Count Four Property was purchased for $549,000.00, although it was listed for sale at $499,000.00, facts which Ms. Fernandez had to be aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Four Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Four Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: An indication that the seller made a contribution to cover buyer’s closing costs in the amount of $32,994.00; An indication that the seller made a contribution to cover repairs in the amount of $17,000.00; A broker’s disclosure; and An explanation as to why the sales price ($549,000.00) exceeded the listing price ($499,000.00). While a “bidding war” would explain this discrepancy, there was no evidence in the file that such a bidding war had taken place. Count Five. On or about June 21, 2005, Ms. Fernandez represented the buyer in the purchase of property located at 3707 Le Jeune Road, Coral Cables, Florida (hereinafter referred to as the “Count Five Property”). The Count Five Property sold for $575,000.00 while the asking price was $525,000.00, facts which Ms. Fernandez had to have been aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Five Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Five Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: An indication that the seller made a contribution to buyer for repairs in the amount of $15,000.00; A broker’s disclosure; and An explanation as to why the sales price ($549,000.00) exceeded the listing price ($499,000.00). While a “bidding war” would explain this discrepancy, there was no evidence in the file that such a bidding war had taken place. Count Six. On or about March 19, 2006, Ms. Fernandez represented the buyer in the purchase of property located at 1631 Southwest 13th Street, Miami, Florida (hereinafter referred to as the “Count Six Property”). The Count Six Property sold for $500,000.00 while the asking price was $390,000.00, facts which Ms. Fernandez had to have been aware of. Mr. Ham ordered Ms. Fernandez to make available and deliver the real estate broker records for the sale of the Count Six Property. Ms. Fernandez provided Mr. Ham with the records that she had involving the sale of the Count Six Property. Upon review of the records provided to Mr. Ham, it was found that the following information or documents were not maintained in Ms. Fernandez’s records: A copy of an assignment of the sales contract; and A sales and purchase contract signed by Gleen Cabezas; An explanation as to why the sales price ($500,000.00) exceeded the listing price ($390,000.00). Ultimate Facts. Ms. Fernandez failed to maintain complete real estate broker records for the transaction on the Count One through Six Properties. Because of the inadequacies of Ms. Fernandez’s real estate broker records, the Division, through its representative, Derrick Ham, was unable to ascertain, for any of the properties at issue in this case, the specifics of what had transpired. As a consequence of the foregoing, the Division, through Mr. Ham, was unable to determine whether Ms. Fernandez complied with the requirements of Chapter 475, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission: Finding that Ms. Fernandez is guilty of the violation alleged in Counts One through Six of the Administrative Complaint as found in this Recommended Order; Placing Ms. Fernandez’s real estate broker license on probation for a period of five years, conditioned on her successful completion of continuing education courses on record- keeping in an amount to be determined by the Commission. Should she fail to complete the continuing education, her license should be suspended until the courses are completed; and Requiring that she pay an administrative fine of $3,000.00. DONE AND ENTERED this 26th of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2009. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Douglas D. Stratton, Esquire Stratton & Feinstien, P.A. 407 Lincoln Road, Suite 2A Miami Beach, Florida 33139 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondents' Florida real estate licenses should be disciplined based on allegations that they were guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealings by trick, scheme or device, culpable negligence or breach of trust in a business transaction; failed to account or deliver trust funds; placed, or caused to be placed any contract, assignment, deed, will, mortgage, affidavit or other writing which purports to affect the title of, or encumber, any real property if the same is known to be false or not authorized to be placed of record, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person or for any unlawful purpose; failed to maintain trust funds in the real estate brokerage account or some other depository until properly disbursed; had funds in an escrow account which were personal funds; failed to preserve and make available to Petitioner, books, records and supporting documents of all trust fund transactions; and used an identification of an organization having to do with real estate when it was not authorized to do so all in violation of Subsections 475.25(1)(a), (b), (d), (e), (k) and 475.42(1)(j), Florida Statutes and rule sections 21V-14.008 and 21V-10.027, Florida Administrative Code.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency in Florida charged with the responsibility and duty to prosecute administrative complaints in the field of real estate. Respondent, Affirmative Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in Florida having been issued licensed No. 0267334 and the last license issued was at the address of 4815 East Busch Boulevard, Suite 201F, Tampa, Florida. During times material, Respondent, Sharon Ann Rozelle, was licensed and operating as qualifying broker and officer of Respondent, Affirmative Realty, Inc. having been issued license No. 0541685. On October 26, 1990, Respondents solicited and obtained a property management agreement with Mark Clesi to manage rental units that he owned (a duplex) located at 10118 North 14th Street in Tampa. On June 17, 1991, Respondents solicited and obtained a tenant for Unit A of Clesi's duplex. The lease reflected $300.00 as monthly rent with a $200.00 security deposit to be held in trust by Respondents. On October 12, 1991, Respondents obtained a tenant for Unit B of Clesi's duplex. The lease reflected $280.00 per month as rent with a $200.00 security deposit which was also held in trust by Respondents. The property management agreement in effect between Respondents and Clesi required Respondents to obtain prior approval before making repairs to Clesi's property. The agreement also called for repairs to be made "as needed". Also, Respondent was required to send monthly reports advising Clesi of monies expended toward the apartment for repairs, management fees and rents collected. During June, 1991, Clesi was not receiving reports on a timely basis and therefore requested that Respondent forward such reports in order that he could timely review them. During the period when Respondent served as property manager for Clesi's property, it became necessary for Respondent Rozelle to evict a tenant. The eviction came about as a result of the tenant failing to pay rent. In an effort to force the tenant from the property, Clesi turned off the water service to the property for a period of approximately three months. Clesi did so in an effort to informally evict the tenant. When Clesi's effort proved unsuccessful, Respondent initiated formal eviction proceedings. Throughout the course of the eviction proceedings, Respondent made at least six (6) trips to attend various hearings and motions. For her efforts, Respondent charged Clesi a $300.00 service fee which appears reasonable. After the tenant was evicted, the apartment was extensively damaged and required extensive repairs to make it suitable for human occupancy. Clesi approved the repairs that were necessary to enable the duplex to be rented. Based on the condition of the apartment after the tenant was evicted, it appeared that the evicted tenant had cooked over a charcoal fire for months inside the duplex. Also, there was raw human excrement over the entire bathroom and walls throughout the apartment. The entire apartment had to be sterilized and repainted prior to releasing. The Hillsborough County Health Department issued a notice which banned the duplex from human occupancy until certain specified violations were corrected. Respondent made the necessary repairs and charged Respondent for making them. Although Clesi maintains that he did not authorize all of the repairs that Respondent made, it is more probable than not that he, in fact, authorized the repairs as he was desirous of repairing the property so that he could rent the apartment again. The maintenance company which performed the repairs was "Rozelle's maintenance", a company which was owned by Respondent. There was no effort on Respondent's part to hide the fact that she owned the company as the invoices sent to Clesi clearly reflected the fact that the repair work was done by Rozelle's maintenance. Although it is clear that Respondent and Clesi had disagreements on the extent of repairs needed to make the duplex suitable for human occupancy, Clesi paid for all of the repairs with the exception of a kitchen sink which he contends was replaced simply because it was not shiny. On the other hand, Respondent credibly testified that it was more than the appearance of the sink which needed repairs i.e., the drain was leaking, it was rusty and was causing further damage to the cabinets in the kitchen. Despite the fact that Respondent replaced the sink and Clesi refused to pay, Respondent deducted the amount charged for replacing the sink from Clesi's bill and did not remove it from the unit. Clesi filed a civil claim in Hillsborough County Court seeking $1,411.04 contending that Respondent sent him invoices for unauthorized maintenance charges and fees between June of 1991 and February of 1992. Clesi was unsuccessful in that lawsuit as it was judicially determined that Respondent did not owe Clesi any money based on his claim. On February 7, 1992, Respondent Rozelle filed a claim of lien with the Hillsborough County Circuit Court against Clesi's property for payment of services and Respondent's management of Clesi's duplex. Additionally, Respondent filed five other claims of lien against other owners for property management services. All of these claims of lien have since been released and were done forthwith when Respondent was advised that, despite legal advice to the contrary, it was improper and unlawful for her to do so since the claim of lien included a management fee. On March 14, 1991, Petitioner's investigator, Marjorie G. May, conducted an office inspection and audit of Respondent's escrow accounts based upon records provided (by Respondents). At the time, Respondent's security deposit escrow account maintained at First Union National Bank in Tampa had a trust liability of $350.00 and a bank balance of $270.00 indicating a shortage of approximately $80.00. This shortage came about based on the fact that, unbeknowst to Respondent, her bank debited her account a fee for checks. When these fees came to Respondent's knowledge, she immediately replaced the $79.97 which restored the account to a non-shortage status. The audit also revealed that Respondent's rental distribution escrow account had a zero trust liability but contained $633.00 which appeared to have been Respondent's personal funds. Part of the overage came about based on the fact that Respondent made a required $200.00 initial deposit (her personal money) to keep the account open and maintained at the bank. The remaining balance was part of a shared commission which Respondent was in the process of disbursing to the proper real estate agent. Respondents failed to prepare signed written monthly escrow statement- reconciliations comparing total trust liability with reconciled bank balances of all trust accounts. These reconciliation statements were not filed as charges against Respondents inasmuch as Respondents were new brokers. As such, these matters are not at issue in this proceeding. On April 2, 1992, Petitioner's investigator, J. L. Graham (Scholtz), scheduled an office inspection and audit for Respondent's brokerage activities. This audit was not conducted as Respondent had car trouble on that day and was unable to reschedule it prior to the time that Investigator Graham appeared at Respondent's office. Approximately three weeks later, April 23, 1992, Investigator Graham made on unscheduled visit at Respondent's office. The audit revealed that some of the bank and accounting records which investigator Graham needed were not at the office as Respondent had taken some of the bank and accounting records to her home after the office was burglarized. Another audit inspection was to be conducted two days later but Respondent was unable to keep that appointment because of a scheduling conflict with an appointment with her attorney. On April 21, 1991, Respondent resigned from the Greater Tampa Association of Realtors (the Association). Respondent's name continued to be carried on the Association's roll because her dues were paid through the end of the 1991 calendar year. Respondent utilized the Association's stationery after her resignation during 1991 but whited out the association's letterhead designation on most of the correspondence which left her office. On occasion, a few letters were inadvertently sent out with the Association's letterhead however there was no attempt by Respondent to defraud or otherwise hold herself out as a member of the Association.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent Rozelle be required to pay a fine of $500.00 payable within thirty days of the entry of the Final Order herein. This recommendation is premised on the finding herein that Respondents filed unlawful liens affecting the title to Clesi's property in violation of Section 475.25(1)(a) and 475.42(1)(j), Florida Statutes. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of September, 1993. COPIES FURNISHED: Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark A. Neumaier, Esquire Post Office Box 8623 Tampa, Florida 33674-8623
Findings Of Fact Respondent Don J. Lo Prince was exclusively connected with International Land Brokers, Inc., as a real estate salesperson, from December 29, 1975, to June 29, 1976. Until approximately two months before respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. At that time, one of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. On November 3, 1975, Walter J. Pankz, a real estate broker, began work with International Land Brokers, Inc. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc., manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operation, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records. The last week of May, respondent telephoned Miss Claire K. Bassett of Lowell, Massachusetts, and urged her not to delay in executing a listing agreement with respect to Florida realty she owned. Another salesman, Marcel Cossette, had earlier spoken to Miss Bassett on several occasions and caused the agreement to be mailed to Miss Bassett. Respondent told her to hurry so that her parcels could be assembled into a tract which respondent represented was expected to be sold in September of 1976. Miss Bassett did execute the agreement and pay a listing fee.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the complaint be dismissed. DONE and ENTERED this 29th day of September 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977. COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Don J. Lo Prince c/o Morton Wolf 19101 Collins Avenue Miami Beach, Florida 33160
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Respondent is a certified residential real estate appraiser. His license number is RD-4163. Respondent was licensed as a registered trainee appraiser in December 2001. He passed the certification exam and received his current license in November 2003. Respondent has not previously had any disciplinary action taken against him by the Division or the Florida Real Estate Appraisal Board (Board). On June 14, 2005, Respondent was engaged by a mortgage company to appraise the single-family residence located at 620 Adirondack Avenue in Orlando (“the subject property”). The subject property was owned at the time by Cosme Abreu and his wife. The Abreus also owned a single-family residence located at 623 Adirondack Avenue, which is across the street from the subject property. The subject property was at the time of the appraisal under contract for sale to Jose Ciro, who was a co-worker of Mr. Abreu's. Respondent previously conducted an appraisal of the subject property in March 2005. His firm also conducted several appraisals of the Abreus' property at 623 Adirondack Avenue, including an appraisal on June 14, 2005. Respondent went to the subject property on June 14, 2005, and walked around the inside and outside of the residence taking measurements and observing the condition of the property. He testified that at the time of the appraisal the subject property was in good overall condition; that all of the appliances were in place; that the air conditioner was working; that the carpet and flooring were in place; and that there was no readily observable water damage or rotten wood on the interior or exterior of the residence. Respondent prepared an appraisal report of the subject property on June 14, 2005. Respondent estimated in his report that the market value of the subject property as of the date of the appraisal was $185,000. Respondent used the cost approach and the sales comparison approach to arrive at that valuation. The Division’s expert appraiser, Ben Cole, III, did not take issue with the methodology used by Respondent in his appraisal of the subject property. Indeed, Mr. Cole stated in his report that: “The [comparative] sales were legitimate transactions, pertinent and in close proximity to the subject. The home was measured correctly and the square footage correctly computed with the room count and placement shown properly.” Nevertheless, Mr. Cole testified that the appraisal report prepared by Respondent was misleading because it did not disclose the actual condition of the subject property as of the date of the appraisal. Mr. Cole did not have any personal knowledge as to the condition of the property as of the date of the appraisal; his opinion regarding the misleading nature of Respondent’s appraisal report was based upon the assumption that the condition of the subject property at the time of the appraisal was as reflected in the photographs taken in August 2005. However, as discussed below, the validity of that assumption was not established by clear and convincing evidence. Respondent did not take photographs of the subject property in connection with the June appraisal. The exterior photographs of the subject property included in his appraisal report were the photographs that he took in connection with the March appraisal. Respondent testified that the March photographs accurately depicted the condition of the subject property as he observed it in June, and he stated in his appraisal report that the subject property has been “maintained in good overall condition.” Mr. Abreu testified that subject property was in good condition at the time of the appraisal, which was consistent with and corroborated Respondent’s assessment of the condition of the subject property.3 Mr. Ciro had no direct personal knowledge about the condition of the subject property in June 2005. He did not take possession of the property until mid-August 2005, even though the closing occurred in mid-July 2005. Mr. Ciro had only visited the subject property twice before August 2005. One of those visits occurred prior to the three hurricanes that hit the Orlando area in August and September of 2004. Mr. Ciro could not recall the date of his other visit to the property, but it was before June 2005. Mr. Ciro testified that the subject property was in good condition at the time of his visits, although he acknowledged that he did not closely examine the outside of the house because it was nighttime when he was at the subject property. The condition of the subject property in August 2005 was not good, as reflected in the photographs and videotape that were received into evidence. For example, the carpet in the family room was missing, appliances were missing, the kitchen sink and cabinets had been removed and were on the back patio, there was a stain of some kind on the ceiling in at least one of the rooms, the backyard was overgrown and full of trash, and there was damage to the soffit on the right-front of the house. Mr. Abreu testified that some of the damage depicted in the photographs and videotape -- e.g., removal of the sink from the kitchen, floor damage caused by a plumbing problem -- occurred between the time of the appraisal and the time that Mr. Ciro took possession of the subject property, and that he was in the process of fixing the damage when Mr. Ciro took possession of the property. Mr. Abreu attributed the remainder of the damage to Mr. Ciro. Mr. Ciro and the Abreus are currently in litigation regarding the sale of the subject property and its condition in August 2005. Respondent is not a party to that litigation. Respondent and Mr. Abreu testified that the August 2005 photographs do not reflect the condition of the property as of the time of the appraisal on June 14, 2005. That testimony is called into question by the photograph in the appraisal report that appears to show that the soffit damage observed in August 2005 on the right-front corner of the house was present at the time of the March appraisal,4 but the evidence was not clear and convincing on that issue. In October 2005, the Division received a complaint from Mr. Ciro regarding Respondent’s appraisal of the subject property. Beverly Ridenauer was assigned to investigate the complaint. It took Ms. Ridenauer several months to make contact with Respondent because the address that the Division had on file for him was incorrect. Respondent was not able to produce his work file for the subject property when it was initially requested by Ms. Ridenauer.5 When the original work file could not be located, Respondent “reconstructed” the file and provided it to Ms. Ridenauer. The original work file was subsequently located and provided to the Division during discovery. There is no evidence of any discrepancies between the “reconstructed” file and the original file. The work file was not offered into evidence, but Respondent testified that it included the property appraiser records, Multiple Listing Service print-outs, and other information he reviewed and considered in his appraisal of the subject property. Respondent required his trainees to take interior photographs of the property they appraised for his use in reviewing and signing-off on their work, but he did not take interior photographs of properties that he appraised unless the lender specifically requested such photographs. As a result of this case, however, Respondent now takes interior photographs as a standard practice in order to “protect [him]self.” There is no statute, rule, or USPAP standard that requires interior photographs to be taken as part of an appraisal. The Division’s expert appraiser, Mr. Cole, did not know whether it was even typical for appraisers to take interior photographs; he simply testified that such photographs “would have been helpful” in this case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing the Administrative Complaint. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd day of August, 2007.
Findings Of Fact Respondent Wayne M. Roberts was connected with International Land Brokers, Inc., as a real estate salesperson, from August 4, 1975, to September 9, 1975. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc., manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operation, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records. After talking to Jeffrey Kramer, Mrs. Adeline Pitts of Chicago, Illinois, and her husband, now deceased, agreed to list lots she owned in Lehigh Acres with International Land Brokers, Inc. Afterwards, she telephoned for Mr. Kramer, but respondent spoke to her instead.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 20th day of September, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire and Mr. Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Wayne M. Roberts c/o Tropic Sales & Development, Inc. 2020 Northeast 163rd Street 4 Suite 305 North Miami Beach, Florida 33160
The Issue The issues in this case are as follows: Was Respondent Daniel Oldfather legally responsible for accounting and refund? Were the refund provisions of the receipt form printed in type as required by Rule 21V-10.15, Florida Administrative Code? Was Richard Vanicek due a 75 percent refund? Was Vanicek due a complete refund because of inaccurate information given him? Did Vanicek make written demand for a refund, and was a written demand for the refund necessary?
Findings Of Fact In September of 1979, Sun Rentals and Management, Inc., was a corporate real estate broker holding license number 0208997 and doing business at 2703 East Oakland Park Boulevard in Fort Lauderdale, Florida. At that time, Victor Stevens was a licensed real estate salesperson employed by Sun Rentals. Stevens, as an employee of Sun Rentals, interviewed Richard D. Vanicek concerning Vanicek's rental needs. Vanicek entered into a contract with Sun Rentals (Petitioner's Exhibit number 1) under which he paid Sun Rentals $45 and Sun Rentals was to provide him with rental information on available rentals. Vanicek received a receipt (Petitioner's Exhibit number 3) which provided in pertinent part as follows: ... Notice, pursuant to Florida Law: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. ... It was agreed that the receipt was printed totally in ten-point type. Vanicek attempted to visit one of the listings provided to him by Sun Rentals. He encountered difficulty in locating the listing; however, his lack of familiarity with Fort Lauderdale may have contributed to his difficulties. Vanicek found a rental through his own efforts and requested a refund of 75 percent of his $45 fee by telephone. He made his request first to Stevens, who referred him to Daniel Oldfather pursuant to office policy. As a result of this referral Vanicek spoke with a man at Sun Rentals, who may have been Oldfather, and restated his request for a refund. His request was denied. Daniel Oldfather was the licensed broker/salesman for Sun Rentals during September, 1979. He was the office manager of Sun Rentals at that time. Martin Katz was broker for Sun Rentals in September of 1979 (Transcript; Page 261, L 21). Oldfather was the next man in authority at the office under Katz (Transcript; Page 235, L 6). Katz delegated to Oldfather the authority to make refunds. The rental forms, including the rental receipt form (Petitioner's Exhibit number 3), were submitted to the Board of Real Estate.
Recommendation Having found that Daniel Oldfather was not guilty of any of the allegations in the amended Administrative Complaint, it is recommended that Counts I, II and III against him be dismissed. Having found that Sun Rentals and Management, Inc., is not guilty of the allegations contained in Count III of the amended Administrative Complaint, it is recommended that Count III against Sun Rentals be dismissed. Having found that Sun Rentals is guilty of violating Sections 475.25(1)(d) and 475.453(1), Florida Statutes, it is recommended that the license of Sun Rentals be suspended for 60 days, during which time the officers and directors of said corporation may not engage in the practice of real estate sales or brokerage under their names or in any other corporate name. DONE and ORDERED this 4th day of May, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 SE Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
