Findings Of Fact At all times pertinent to the allegations herein, the Respondent, James C. Condrack, Jr., was licensed in Florida as a registered real estate broker under license number 0140067. Respondent J C C Company and Son, Inc., at all times pertinent hereto, was a licensed real estate brokerage corporation in Florida operating under license number 0215540. Both Respondents operate in Sarasota, Florida at 2831 Ringling Blvd., Suite 202 A. In addition to his real estate brokerage business, Respondent Condrack also operates a real estate holding company, (Flagship Equity), which holds approximately six properties valued at about one-half million dollars. These properties are all income producing properties which are either straight rentals or are sold on a lease option basis and generate rental income which in some cases, constitutes a slight positive cash flow. In September and October, 1987, Respondent, Condrack, was seeking to buy several properties in Bradenton, Florida. Two of these were private residences and the third, a multifamily home to be converted into an adult congregate living facility. At the time, Respondent, Condrack, was making the purchases on behalf of his holding company for his personal investments, not as a part of the business of J C C Company and Son, Inc., and was utilizing the brokerage services of Sharon Hendricks, an associate with MacIntosh Realty in Bradenton. Prior to making an offer on the properties in question, Mr. Condrack indicated he would like to have an appraisal made of them and through Ms. Hendricks, was put in touch with Mr. Robert Laney, owner and operator Key Realty Appraisal, Inc. of Bradenton Beach, Florida. On September 9, 1987, Mr. Condrack, through Ms. Hendricks, requested that Mr. Laney perform an appraisal on property located at 6008 11th Street East in Bradenton. The appraisal was accomplished and was delivered on September 15, 1987. Thereafter, on October 9, 1987, Respondent requested, again through Ms. Hendricks, that Mr. Laney do an appraisal on property located at 2109 12th Street West in Bradenton and this appraisal was accomplished and delivered on October 27, 1987. On or before October 20, 1987, Respondent Condrack met with Mr. Laney and went through the property with him. At that time, Respondent gave Mr. Laney no criteria for the appraisal nor did he indicate any minimum figure he would consider acceptable. Mr. Laney did the appraisal as requested and wrote up the results on a form provided by the Federal National Mortgage Association. In conducting his appraisal, he used the three standard appraisal methods; the income method, the cost data method, and the sales data comparison method. As to the third property, located on 55th Avenue in Bradenton, the cost data method reflected a value of $165,282.00; the income method reflected a value of $168,000.00; and the sales data comparison method reflected a value of $155,000.00. To get a valid appraisal using the comparable sales method, a minimum of three comparable sales must be considered. In this case, Laney used six sales no older than three months prior the appraisal date, using research records kept in his office. For the first appraisal, Mr. Laney charged $150.00 plus tax; for the second, the same; and for the third, $300.00 plus tax. This came to a total amount owed of $630.00 which was, by individual property billings, billed to attorney David Wilcox, but shown to be for either Mr. Condrack, in the case of the last property, or Flagship Equity in the case of the other two. Mr. Laney was not paid for any of the appraisals and on January 15, 1988, wrote to Mr. Condrack requesting that he be paid for the three appraisals. He was not paid. Respondent contends that he did not pay Mr. Laney because, as to the last appraisal, that on the 55th Avenue property, he was unable to secure financing from Key Savings Bank, to whom he applied for financing. He contends this was because Key refused to accept the appraisal done by Mr. Laney who was no longer on their list of approved appraisers because he had failed to initiate certification procedures as an appraiser. Mr. Laney contends that at the time he prepared the appraisal and forwarded it to Mr. Condrack, he was on Key's approved appraiser list but was subsequently removed because Key went to a designated appraiser system at the request of the Federal government. It matters not, however, whether Mr. Laney was certified by Key or not. There is no evidence that certification by Key was made a condition precedent to the appraisal services being rendered for Mr. Condrack and it appears that at the time the services were rendered and when the appraisal forms were delivered to the client, he was certified not only by Key but by the Island Bank (now First Union Bank) as well. He is still on the approved list with First Union. Mr. Condrack contends that when he first was turned down for financing on the 55th Avenue property, he was "miffed" and decided to extend payment to Mr. Laney over a period of time rather than pay immediately. He communicated this intention to Mr. Laney. Mr. Laney declined to accept extended payment and instead requested immediate payment. Mr. Condrack has failed to make any payments whatever to Mr. Laney for any of the three appraisals performed for him even though he utilized the appraisal on the first property in purchasing it and is currently drawing income from it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the so much of the Administrative Complaint as relates to the Respondent, J J C Company and Son, Inc., be dismissed, but that the broker's license of Respondent, James C. Condrack, Jr. be suspended for a period of one year. RECOMMENDED this 7th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3010 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By The Petitioner: 1 - 7. Accepted and incorporated herein except as they pertain to Respondent, J C C Company and Son, Inc., which has been found not to be a part of Respondent Condrack's actions herein. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James C. Condrack, Jr. J C C Company and Son, Inc. Post Office Box 182 Sarasota, Florida 34230 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent Jean P. Pittenger is a licensed general contractor holding license number CGC010323 issued by the Florida Construction Industry Licensing Board and is a licensed real estate broker-salesman, holding license number 0341210. Respondent Lan Thi Tran also known as Marie J Pittenger; is a licensed real estate salesman, holding license number SLO216661. Respondent LeRoy G. Bailey is a real estate broker in the State of Florida, holding license number BKO184114. On or about December 11, 1981, the Respondents Pittenger and Tran solicited and obtained Louis and Lamquet DeWinter and J. M. Demeulemeister as purchasers and joint venturers for the purchase of a certain piece of real property in Collier County, and for the construction of a house thereon. The Respondent Pittenger was the President and qualifying agent for his construction company known as "The Pittenger Company," d/b/a Real Estate Technology Group. Jean Pittenger entered into the joint venture agreement with Louie Philippe DeWinter and the others, as president of that entity. Pursuant to this agreement, DeWinter agreed to purchase a lot at Site 51, Block A, The Pelican Bay, Unit 1, a recorded subdivision in Collier County, Florida, and Respondent Jean Pittenger agreed to construct a first-class residence" on the property for purposes of investment and resale. Respondent Jean Pittenger never qualified his company or the joint venture entity under which he intended to undertake to construct the house with the Florida Construction Industry Licensing Board. In connection with the joint venture, the DeWinters gave to Marilyn Evanish of Coral Ridge-Collier Properties, Inc., a $17,000 earnest money deposit in accordance with the sales contract calling for DeWinter to purchase the property at a total of $170,000. The DeWinters' also paid $15,000 for architectural services and $13,151 for advance construction costs, attorney's fees and the like to Respondents' Pittenger and Tran. The DeWinters' made these disbursements from their own funds in trust and reliance upon the statements, actions and representations of Respondents' Pittenger and Tran to the effect that an architect would be retained to design the residence to be built, and that construction permits would be obtained and construction would `begin at a time certain. Thereafter, on or about April 14, 1982, Pittenger and Tran, unilaterally terminated the professional services of the architect and abandoned the joint venture agreement and the construction of the residence without explanation to their fellow joint venturers, the DeWinters, who were the owners of the lot upon which the residence was to be constructed. Respondent Pittenger never returned to complete construction. This unilateral action by the Respondents resulted in the DeWinters losing the use and benefit of approximately $28,151 which they had paid to those Respondents for architectural services and construction costs, which services were never performed. Louis DeWinter made demand on the Pittengers for return of the funds. Respondents' Pittenger and Tran, however, failed to justify the abandonment of construction of the dwelling, and failed and refused to account for the funds or what services, if any, had been purchased with the funds provided them by DeWinter for development of the property. Respondents' Pittenger and Tran utilized the $13,151 for their own use and benefits or in any event, for a use and benefit not intended by their joint venture partners and clients, the DeWinters. An indefinite portion of the $15,000 attributable to architectural services was apparently paid to the architect engaged to design the house; but in any event, Pittenger and Tran terminated the professional services of the architect before he completed his design and failed to account for or deliver the $13,151 entrusted to them by the DeWinters and intended for initiation of construction. The evidence does not clearly establish what became of the $15,000 advance for architectural services, but the DeWinters never received the benefit of any architectural services purchased. On or about March 24, 1982, Respondents' Jean P. Pittenger and Lan Thi Tran solicited and obtained $5,000 from the DeWinters supposedly for the purpose of purchasing real property in Bonita Springs, Florida, for investment and resale. The DeWinters' gave $5,000 to Respondents' Jean P. Pittenger and Lan Thi Tran in trust and reliance upon the acts, representations and statements of those Respondents which were made in order to induce the DeWinters' to deliver the $5,000 to them. Thereafter, those Respondents refused and neglected to account for or deliver to the Dewinters the $5,000 after demand and they never used that sum to purchase any property on behalf of the DeWinters, their clients. On or about April 22, 1982, Respondents' Pittenger and Tran solicited and obtained a sales contract on a restaurant known as "The Elephant Walk." The property was owned by Hospitality-Condo Inn, Inc. (seller) and was listed by the real estate brokerage known as Tri-Dynamics Realty of Florida, Inc., which was the brokerage of Respondent LeRoy Bailey, who is also the President of Hospitality-Condo Inn, Inc. The property was sold to Gerlanelie, Inc. by Lee Nichols Realty, Inc., the "selling broker," pursuant to that contract. Gerlanelie, Inc., was owned by the DeWinters and Respondent Tran who in effect were the purchasers of the property. Respondent Tran was the real estate salesperson who secured and negotiated the purchase from Mr. Bailey's corporation, at which time she was a salesman for Lee Nichols Realty, Inc., the selling broker. In executing the contract, the DeWinters acted upon the advice and representations of the Pittengers, who represented that the purchase price of $850,000 was a reasonable price and- knowing that the DeWinters were foreign nationals and uninitiated in the legal aspects of real estate transactions in Florida, represented to them that it was illegal under Florida law to counter- offer for less than that purchase price, which representation the DeWinters apparently believed. At the closing, the DeWinters executed documents assigning their beneficial interests back to the sellers Bailey and Hospitality Condo-Inns Inc., as collateral and security for the mortgage and promissory note obligations by which they were to pay the purchase price, to which obligations they both corporately and personally obligated themselves. Additionally, the Respondents' Pittenger and Tran agreed to share and participate in the mortgage payments, by which $728,000 of the purchase price was to be paid, as an inducement to get the Dewinters to enter into the sales contract and close the transaction. In connection with the purchase and renovation of the restaurant, the Respondents, Pittenger and Tran solicited and obtained $104,795 from the DeWinters between May 17, 1982 and July 10, 1982. Respondent Jean Pittenger, who was to do the construction work for the renovation, originally represented that the construction work would cost no more than $75,000. In any event, very little renovation work was completed by the Respondent Pittenger, and he and Respondent Tran abandoned the project, leaving $70,000 in unpaid, recorded mechanics' and materialmens' liens and approximately $30,000 in unpaid bills for food, liquor and other expenses, which were in large part incurred by Respondents' Pittenger, Tran and their invited guests and business associates. This $30,000 amount had to be paid by the DeWinters through a loan and they had to pay the $70,000 liens as well. As a result of this unforeseen, massive expense, the DeWinters were unable to meet their August, 1982, mortgage payment, although in the first full month of operation they had grossed approximately $60,000 with the restaurant operation and it appeared to be a very viable business. Additionally, Respondents' Pittenger and Tran failed to pay their share of the mortgage payments, notwithstanding their promise to the DeWinters that they would participate in making the mortgage payments as inducement to the DeWinters entering into the purchase transaction in the first place. In any event, Respondents' Pittenger and Tran abandoned the project and left the state and were last known to be in the Atlanta, Georgia area. They thus deprived the DeWinters of the vast majority of the $104,795 to have been used to pay for renovation on their restaurant, the $70,000 in addition to that required to discharge the liens and the $30,000 expended to pay various expenses incurred by those Respondents. The former owner and mortgagee, Respondent LeRoy G. Bailey advised the DeWinters during the initial month of operation of the restaurant after the sale, that Pittenger and Tran were not to be trusted, and that they should remove them from management of the restaurant and seek legal counsel, which the DeWinters did. Respondent Bailey additionally cooperated with the DeWinters, attempting to help them make the business a successful operation, but in the ends due to the perfidy of Pittenger and Tran, and the severe financial hardship it caused the DeWinters, the DeWinters were forced to assign all of their right, title and interest in the restaurant back to Respondent Bailey, at the point of the restaurant's mortgage becoming in default, as they had earlier agreed to do. Mr. Bailey employed the DeWinters in a management capacity for a short time after the assignment, but then discharged them and operated the restaurant himself for a time until he ultimately sold it. In any event, it was not established that Bailey entered into any conspiracy or scheme with Pittenger and Tran to attempt to defraud the DeWinters, or otherwise engage in any dishonest dealing by trick, scheme, device or otherwise at the expense of the DeWinters. The financial and legal problems which befell the DeWinters were due to their naive reliance on the representations, promises and statements made by Jean Pittenger and Lan Thi Tran, his wife. All their agreements with Bailey were entered into with counsel present and upon advice of counsel. The DeWinters knew at the closing of the transaction that they had executed an assignment, in the nature of a deed in lieu of foreclosure, back to Bailey, which would be exercised should the mortgage become in default.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of records the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the charges against the Respondent LeRoy G. Bailey be DISMISSED and it is further, RECOMMENDED that all licenses issued by the Construction Industry Licensing Board to Jean P. Pittenger be REVOKED and that he be fined the amount of $5,000. It is further RECOMMENDED that the licenses of Jean P. Pittenger and Lan Thi Tran, also known as Marie J. Pittenger, issued by the Florida Real Estate Commission be REVOKED, and that they each be fined in the amount of $6,000. DONE and ENTERED this 20th day of November, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 84-0311 AND 84-1112 Petitioner's Proposed Findings of Fact Accepted. 4. Accepted. Accepted. 5. Accepted. Accepted. 6. Accepted. Respondent's Proposed Findings of Fact Accepted. 5. Accepted. Accepted. 6. Accepted. Accepted. 7. Accepted. Accepted. 8. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Wesley A. Lauer, Esquire ACKERMAN, BAKST, GUNDLACH, LAUER & ZWICKEL, P.A. 515 North Flagler Drive Orlando, Florida 32802 Jean P. PITTENGER and Lan Thi Tran 235 Tallwood Terrace Roswell, Georgia 30075 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, a licensed real estate salesman, is guilty, as charged, of fraud, misrepresentation, culpable negligence or breach of trust in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact I. At all times material to the charges, Respondent was a licensed Florida real estate salesman associated with Woodlake Realty, Inc., in Melbourne, Florida. He obtained his real estate salesman's license in 1982. On March 14, 1985, became a licensed real estate broker and now operates his own business under the name of Peter Frontiero Realty. His office is located in his residence at 3247 West New Haven Avenue, Melbourne, Florida. II. On or about April 7, 1983, while employed as a real estate salesman at Apollo Realty, Inc., Mary E. Sousa obtained a listing on a tract of land owned by John and Janet Biansco. In connection with the listing, an Exclusive Right of Sale Contract was executed. This contract contained the following legal description of the tract to be sold: Parcel of land lying in the County of Brevard in the southwest 1/4 of Sec 11, TW 28 South Range 36E more particularly described as follows: S 2/3 of the following tract: commence at SE corner of W 1/2 of Sec 11 TW 28 South Range 36E, thence along south line of said Sec 11, 589-54-14 West for 30 feet., thence north 1- 17-00E for [sic] 43 feet to the point of beginning thence south 89-54-14 west along the north R/W line Melbourne Tillman Drainage district canal #63 for 297.43 feet, thence north 1-15-49 east for 353 feet, thence north 89-54-14 east for 297.55 feet, to the west R/W line of Arizona Street; thence south 1 17-00 West along R/W line for 353.00 feet, to the point of beginning. (P-4, Admissions No. 5, 6) As so described, this tract of land measures 235.34' x 297.47' and contains approximately 1.61 acres. (Admission No. 7) Mary E. Sousa and her broker, Peter Sergis, however, incorrectly determined that the legal description described a tract of land measuring 297' x 353' feet, containing 2.4 acres. (They determined this by examining the legal description attached to the Listing Contract and relying on Mr. Biansco's representation that the tract contained 2.4 acres.) Mary E. Sousa then had the property listed in the Melbourne Multiple Listing Service (MLS) on or about April 26, 1983. The MLS listing reflected the incorrect measurements and size of the tract, as submitted by Ms. Sousa. (P-3, Admission No. 8) III. During May, 1983, Karen Dunn-Frehsee and Paul Winkler (her fiance), contacted Respondents, a real estate salesman associated with Woodlake Realty, Inc., about purchasing a home. After Respondent showed them a house they were interested in, Ms. Dunn-Frehsee and Mr. Winkler decided that what they really wanted was to buy land on which they could build a residence. They told Respondent that they would need a minimum of two acres since they had two horses: local zoning requirements required at least one acre of land per horse. (Admission No. 10, Testimony of Dunn-Frehsee) Respondent checked MLS and found the listing (containing the incorrect measurements and size) of the Biansco property. He showed the land to Ms. Dunn- Frehsee and Mr. Winkler, who liked it and decided to make an offer. (At that time, Respondent was unaware that the MLS listing erroneously described the tract to be 297' x 353', containing 2.4 acres, when in fact it was 297.47' x 235.34', containing approximately 1.61 acres.) On or about May 5, 1983, Respondent prepared a "Contract for Sale and Purchase" containing the offer of Ms. Dunn-Frehsee. After she signed it, it was presented to the Bianscos, who subsequently accepted it. (Admission No. 12, P- 1) The Contract for Sale and Purchase contained, on the attached addendum--a correct legal description of the tracts as the description was taken from the listing agreement, not the erroneous MLS listing. Prior to closing, Respondent contacted Ms. Dunn-Frehsee several times to advise her regarding efforts being made by Lawyers Title Insurance Company to locate the prior owner of the property and secure a quitclaim deed covering a 30-foot strip of land bordering Arizona Street on the east side of the property. He was still unaware of the discrepancy between dimensions of the property contained on the MLS listing and the Contract of Sale. He did not tell Ms. Dunn-Frehsee that he had personally measured the property, or that he had confirmed the accuracy of the listing information. He was concerned only with the problem of obtaining access to the property through the 30-foot strip bordering Arizona Street. Although he told Ms. Dunn-Frehsee that he thought she was getting 2.7 or 3.0 acres by virtue of the additional strip of land which was to be quitclaimed to her at no additional cost, this belief was based on his reasonable assumption that the original tract contained 2.4 acres, as represented by the listing agents (Mary Sousa and Peter Sergis of Apollo Realty) and reflected in the Multiple Listing Book. Respondent also contacted Mr. Winkler, but similarly, did not represent to him that he (Respondent) had personally measured the property or confirmed the MLS information. (Testimony of Respondent) Prior to the closing, Respondent discussed with Ms. Dunn-Frehsee the need to order a survey of the property. She then ordered a survey, which was completed a week and a half before closing. After picking it up, Respondent telephoned Ms. Dunn-Frehsee. There is conflicting testimony about the conversation which ensued. Respondent testifies that he telephoned her and asked if she would like him to deliver the survey to her house or mail it to her, or if she would like to pick it up at his office. (TR-30) Ms. Dunn- Frehsee, on the other hand, testified that Respondent telephoned her stating that he had looked the survey over and there was no reason for her to drive out to his office to pick it up, that he would bring it to the closing. (TR-48) Neither version is more plausible or believable than the other. Both Respondent and Ms. Dunn-Frehsee have a discernible bias: Respondent faces charges which could result in the revocation of his professional license; Ms. Dunn-Frehsee has sued Respondent for damages resulting from her purchase of a tract of land which was smaller than what she was led to believe. Since the burden of proof lies with the Departments, the conflicting testimony is resolved in Respondent's favor as it has not been shown with any reliable degree of certainty that Respondent told Ms. Dunn-Frehsee that he had looked the survey over and that there was no need for her to examine it before closing. Both witnesses agree, however, and it is affirmatively found that Ms. Dunn-Frehsee agreed that Respondent should bring the survey with him to the closing, which was imminent. The surveys prepared by Hugh Smith, a registered land surveyors correctly showed the property to be approximately 235.33' x 297.43', but did not indicate the size by acreage. (Admission No. 20, P-2) At closings on or about June 23, 1983, Respondent showed the survey to Ms. Dunn-Frehsee. Ms. Dunn- Frehsee questioned the measurements as not being the same as she recalled being on the MLS listing. Neither Ms. Sousa nor Respondent, both of whom were in attendance, had a copy of the MLS listing so that the measurements on the two documents were not compared. (Admission No. 22-23) Ms. Dunn-Frehsee chose to close the transaction anyway after her questions regarding the property were apparently resolved to her satisfaction by Kathleen Van Mier, the agent for Lawyers Title Insurance Company which was handling the closing. Ms. Dunn-Frehsee signed a contingency statement indicating that all contract contingencies had been satisfied and that she wished to proceed with the closing. (TR-4O-41; 77-78) Respondent was misinformed regarding the dimensions and size of the property by the listing agents, Mary Sousa and Peter Sergis of Apollo Realty, who had provided inaccurate information to the Multiple Listing Service. Respondent reasonably relied upon the listing information and the representations of the listing agents concerning the size of the property. In his discussions with Ms. Dunn-Frehsee and Mr. Winkler, he drew reasonable inferences from such (incorrect) representations. He did not intentionally mislead anyone. It has not been shown that, under the circumstances, he failed to exercise due care or that degree of care required of a licensed real estate salesman. Nor has it been shown that he violated any professional standard of care adhered to by real estate salesmen and established by qualified expert testimony at hearing.
Recommendation Based on the foregoing it is RECOMMENDED: That the administrative complaint, and all charges against Respondent be DISMISSED for failure of proof. DONE and ORDERED this 11th day of October, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of October, 1985.
The Issue The issue is whether Petitioner’s application for licensure as a real estate broker should be approved.
Findings Of Fact Petitioner has been a licensed real estate sales associate since 2000. His license number is 693538. Most of Petitioner’s work in the real estate industry has involved business transactions, but he has also handled transactions involving residential properties. On August 23, 2004, Petitioner filed an application for licensure as a real estate broker. Petitioner disclosed in the application that, in July 2003, his sales associate license was suspended by the Commission for 30 days and that he was placed on probation for a period of six months. That disciplinary action was based upon a single incident that occurred on or about November 7, 2001. Petitioner agreed to the disciplinary action as part of a “Stipulation” to resolve an Administrative Complaint charging him with fraud and misrepresentation in violation of Section 475.25(1)(b), Florida Statutes (2001), and with having operated as a broker without a license in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2001). The Administrative Complaint contained the following “essential allegations of material fact,” which were admitted by Petitioner as part of the Stipulation: On or about November 7, 2001, Respondent, a seller’s agent, facilitated a purchase and sale transaction between Buyer and Seller. On or about November 7, 2001, [Petitioner] was not registered with a broker.[1] The transaction referenced above failed to close. Buyer released a $1,000.00 payment to Seller. [Petitioner] submitted the $1,000.00 payment to Seller. [Petitioner] instructed [Seller] to execute a check in the amount of $500.00 payable to “Cash.”[2] [Petitioner] accepted the $500.00 payment as his own payment for services. The Final Order adopting the Stipulation was filed with the agency clerk on June 25, 2003. Petitioner’s suspension commenced on July 25, 2003, which is “thirty days from the date of filing of the Final Order.” The suspension ended 30 days later, on August 24, 2003. Petitioner’s probation ran “for a period of six (6) months from the Effective Date [of the Stipulation],” which was defined as the date that the Final Order was filed with the agency clerk. As a result, the probation period ran from June 25, 2003, to December 25, 2003. Petitioner was required to complete a three-hour ethics course and a four-hour escrow management course during the probation period, which he did. Petitioner has not been subject to any other disciplinary action. Petitioner has taken several continuing education courses in addition to those required as part of his probation. He is working towards certification by the Graduate Realtor Institute. Petitioner has taken the classes necessary to become a real estate broker, and he passed the broker examination. Petitioner has worked for broker Phillip Wetter since March 2005. Petitioner manages the day-to-day operation of Mr. Wetter’s brokerage firm. His responsibilities include preparing listings, negotiating contracts, and handling escrow funds. He has been involved in over 50 successful real estate transactions under Mr. Wetter’s supervision. According to Mr. Wetter, Petitioner is meticulous in his work, including his handling of escrow funds, and he always makes sure that he “dots all his ‘I’s’ and crosses all his ‘T’s’.” Petitioner acknowledged in his testimony before the Commission and at the final hearing that what he did in November 2001 was wrong. He credibly testified that he has learned from his mistake. In his testimony before the Commission and at the final hearing, Mr. Wetter attested to Petitioner’s honesty, ethics, good moral character, as well as his qualifications to be a broker. That testimony was unrebutted and is corroborated by the letters of support from Petitioner’s former clients that are contained in his application file, Exhibit R1. Mr. Wetter’s opinions regarding Petitioner’s fitness for licensure as a real estate broker are given great weight. Those opinions are based not only on his personal observations as Petitioner’s current qualifying broker, but also on his personal experience with Petitioner representing him in several business transactions while Petitioner was working for other brokers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order approving Petitioner’s application for licensure as a real estate broker. DONE AND ENTERED this 22nd day of November, 2005, 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 November, 2005.
Findings Of Fact Frederick Hodgdon (Hodgdon) has held Florida real estate broker license 0206805 at all times pertinent to this case. Hodgdon is owner and qualifying broker for Pelican Realty of Marco Island, Inc., (Pelican Realty), through which Hodgdon conducts business and which also is named as a respondent. At all times pertinent, Pelican Realty has held Florida corporate real estate broker license 0223934. July 24 through August 6, 1984, respondents placed the following newspaper advertisement in the Sun-Daze: DO YOU KNOW ... that all Florida real estate brokers are agents for the seller and CANNOT legally propose any lower than listed prices or better terms for the benefit of the buyer? UNLESS ... the broker legally qualifies himself as an agent for the buyer. As a Buyer's Broker Pelican Realty CAN and DOES exactly this and a lot more! Buyers pay no fees or commissions. Call or send for our informative brochure, you will be glad you did. The real estate buyer's best bet for the best price is to have a Buyer's Broker. On February 19, 1986, respondents placed the following newspaper advertisement in the Marco Island Eagle: 1/ BUYER BEWARE! DON'T BUY REAL ESTATE ON MARCO ISLAND. ... before consulting an attorney or carefully reading Paragraph 5) and 7) of the 1985 Revision of the Sales Contract as approved by the Naples Area Board of Realtors and the Marco Island Area Board of Realtors and the Collier County Bar Association contract Revision Committee. The Contract states quote: "The Buyer has inspected the property sold by the Contract and there are no other inspections permitted or required. The property is acceptable in its AS IS condition as of date of this offer. INCREDIBLE! ... What happens to the unwitting Buyer who intends to have termite, structural and seawall inspections AFTER his offer is accepted? He just may have to buy a termite ridden house that needs a new roof and a seawall that is on the verge of collapse. Thats what! ... Taken at face value the Sales contract calls for the buyer to spend several hundred dollars for inspections BEFORE making an offer that may well be turned down. INCREDIBLE! .... Paragraph 7) states quote: "Buyer's decision to buy was based on Buyer's own investigation of the property and not upon any representation, warranty, statement or conduct of the Seller, or broker, or any of Seller's or broker's agents" (Excluding those rare occasions when the seller and his agents remain silent.) INCREDIBLE! ... The above subject sections of Paragraphs 5) and 7) of the 1985 Sales Contract in our opinion may well violate the Realtor's Code of Ethics Article 7) "to treat fairly all parties to the transaction." There is nothing Pelican Realty could say or do to better emphasize the Buyer's need to have an advocate on his side. ... As a Buyer's Broker we recommend striking out any and all terms and conditions of the Sales Contract that are prejudicial to the Buyer's best interests. ... Pelican Realty would appreciate the opportunity to discuss with any interested parties the many advantages of working with a Buyer Broker. Our services are at NO additional expense to the buyer. CALL US FOR FURTHER DETAILS. NOW!! On March 11, 1986, respondents placed the following newspaper advertisement in the Sun-News: CASH BACK FOR THE REAL ESTATE BUYER. THAT'S INCREDIBLE! Pelican Realty GUARANTEES CASH BACK to every buyer on every sale. The bigger the sale, the bigger the cash gift to the buyer. On top of this Pelican Realty (a Buyer's Broker) goes all out to get the lowest possible price for the buyer at NO additional cost to the buyer. Other realtors must get the highest price for the seller. The thousands you SAVE already belong to you. THINK ABOUT IT! Call us for further details NOW! "WE PAY OUR BUYERS TO DO BUSINESS WITH US" There is nothing false or fraudulent about the three advertisements. However, the following statements in the advertisements are deceptive or misleading in form or content: The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that buyers pay no fees or commissions. In form, the buyer perhaps does not pay brokerage fees or commissions. But in substance, the buyer does indirectly pay his broker a brokerage fee or commission when the seller pays fees and commissions out of the proceeds of the sale. The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that a buyer's broker "legally qualifies himself as an agent for the buyer." Although perhaps technically correct, this representation implies separate state regulation and qualification procedures for licensure as a buyer's broker. In fact and in law, any licensed real estate broker can become a buyer's broker simply by entering into an agreement with a buyer to be the buyer's broker. The representation in the March 11, 1986, News-Sun advertisement: "Other realtors must get the highest price for the seller." Read carefully in context, this representation is true--realtors other than those representing a buyer must try to get the highest price for the seller he represents (while being open, honest and fair to the buyer). But, as written, the representation could lead one to believe that the respondents have an ability no other realtors have when, in fact and in law, any realtor or other licensed real estate broker who represents a buyer can try to get the best price for the buyer. Although respondents have offered cash rebates, no client has seen the offer or asked for a rebate. Although respondents have maintained their innocence, they changed the ads to meet the criticism of the Department of Professional Regulation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order (1) reprimanding respondents, Frederick Hodgdon and Pelican Realty of Marco Island, Inc., and (2) fining them $500 each for violations of Section 475.25(1)(c), Florida Statutes (1985). RECOMMENDED this 21st day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of July, 1987.
Findings Of Fact Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated: At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation. First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving, setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000. On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission: This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976. I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ". * * * We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available. On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret. Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. COPIES FURNISHED: Kenneth M. Meer, Esquire 400 West Robinson Avenue Orlando, Florida 32801 Mr. George W. Pinkerton 2833 East Highway 92 Lakeland, Florida 33801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-2292 GEORGE W. PINKERTON, Respondent. /
