Findings Of Fact At all times pertinent to the allegations of the Administrative Complaint, Gerald Schultz was a real estate broker holding License #0215135 and active firm broker for Choice Rentals and Realty Corporation (formerly Choice Rentals, Inc., and hereinafter "Choice Rentals"), which was a corporate broker holding License #0195222. Rosemary Hufcut entered into a contract with Choice Rentals on July 30, 1980, for Choice Rentals to provide her with rental information based upon criteria she gave Choice Rentals. Hufcut paid a fee of $50 to Choice Rentals for its services. Hufcut was looking for an apartment for herself and her two daughters. She specified she wanted a good neighborhood with good schools. Hufcut was given rental data by Choice Rentals and, with her father, visited a number of the apartments listed. The apartments were not suitable. On the following day, Hufcut requested a refund and submitted a written request for a refund on August 6, 1980. On August 26, 1980, Hufcut's refund request was denied by a letter from Choice Rentals (Petitioner's Exhibit #6). This letter provided in part: Refusal to accept available rental properties meeting the requirements as set forth in your contract with us, does not constitute cancellation of contractual agreement. (This is pursuant to the Florida Law regarding "obtaining a rental".) note - produced available rental property meeting the requirements stated on contract. Hufcut has never received a refund from Choice Rentals. The Board introduced Petitioner's Exhibits #1 through #6, which were received in evidence.
Recommendation Having found the Respondents guilty of violating Section 475.25(1)(b), Florida Statutes, the Hearing Officer recommends that the Board of Real Estate suspend the licenses of Respondents for ten years. DONE and ORDERED this 25th day of March, 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 25th day of March, 1982. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 Bird Road Miami, Florida 33165 Mr. Gerald Schultz c/o John Hume, Esquire 5100 North Federal Highway, Suite 405 Fort Lauderdale, Florida 33308 Choice Rentals & Realty 3367 North Federal Highway Fort Lauderdale, Florida 33308 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly. When LaReau leased the subject premises from Heide he entered a twelve (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2). Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D). Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: 1. That the Administrative Complaint filed herein be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.
The Issue Whether or not the actions of the petitioner in amending its lease agreement resulted in increased costs which are reimbursable by the Department of Health and Rehabilitative Services through an interim rate request.
Findings Of Fact Hallandale is a licensed nursing home facility located in Hallandale, Florida, and at all times material hereto, Hallandale was certified to and was participating in the Florida Medicaid Program. The participation was subject to a standard nursing home provider agreement entered into by the parties. Pursuant to the agreement, Hallandale provides nursing care for Medicaid recipients and receives as payment the recognized rate of Medicaid reimbursement established for Hallandale by HRS in accordance with the applicable state and federal laws, regulations, and guidelines. The agreement may be cancelled by either party after giving thirty (30) days notice. In 1971, Hallandale entered into a lease agreement with the owners of the nursing home facility and began operating the nursing home. The lease called for a payment of $84.00 per month, per bed, had no escalation clause, and would not expire until 1986. At the time the lease was negotiated, the owners had been operating the nursing home themselves at a loss. To avoid bankruptcy or having to sell the property at a loss, the owners leased the property to Hallandale. However, within seven or eight years the owners began to put pressure on Hallandale to renegotiate the lease because the owners did not think they were getting a fair return on their investment. In 1981, the owners and Hallandale entered into negotiations to amend the terms of the lease to provide an increased rental rate and an extension of the lease term. The negotiations were not successful, and finally, by letter dated July 6, 1983, the owners issued the following ultimatum: "Although the lease has a renegotiation clause six months prior to expiration, we must renegotiate the terms and conditions of this lease immediately. The partnership has made a decision that we will definitely not renew or extend your lease unless we can come to some satisfactory arrangement regarding terms and conditions, effective immediately." On December 13, 1983, Hallandale and the owners entered into an amendment to the original lease. The amendment increased the lease payments and extended the lease until August of 1998. The amended lease provided for a minimum rental of $110 per month, per bed, as of September 1, 1983, with increases in the rental every year thereafter. Saul Lerner has been president of Hallandale since 1975 and has been associated with the facility since it was first leased in 1971. Mr. Lerner is an astute businessman who has been involved in a variety of businesses for forty years. He was chiefly responsible for renegotiating the lease with the owners. Although the lease was renegotiated due to the owners' threats to sell the facility, 1/ Mr. Lerner did not merely accede to the owners' demands. There were several offers and counteroffers made before the final agreement was reached, and the renegotiated lease provided for a considerably lower rental rate than that demanded by the owners. Prior to entering into the lease amendment Mr. Lerner consulted with people in the industry, had a MAI appraisal performed, discussed the situation with James Beymer, a real estate broker specializing in nursing home and health related facilities, consulted with his accountants who had been in the health care field for 13 years, and talked with Sebastian Gomez of the Department of Health and Rehabilitative Services. Mr. Lerner consulted with his business associates, and the pros and cons of renegotiating the lease were carefully considered. Hallandale's determination to renegotiate the lease in 1983 was a reasonable and prudent business decision. By agreeing to increased rental payments for the three years that remained on the original lease, Hallandale gained an additional 12 years to operate the facility. This permitted Hallandale to project its costs and plan for the future. It could make additions and improvements to the building, buy new equipment, and provide for stability in staffing. On the other hand, had Hallandale refused to renegotiate the lease, it faced an uncertain future. There was a strong possibility that the owners would not be willing to renew the lease when it expired, which would result in Hallandale's losing the equipment and improvements it had put into the building. In addition, the owners were threatening to sell the property, and even though Hallandale had the right of first refusal, it would have had difficulty in obtaining the money required to purchase the property. Further, Hallandale realized that even if the owners would be willing to negotiate a new lease in 1986, Hallandale would not have the same leverage or bargaining power in 1986 as it had in 1983. Hallandale has participated in the Medicaid program continuously since 1971. At the time of the hearing the facility had 142 patients, of which 45 were Medicaid patients. 2/ Hallandale has never refused a Medicaid patient, and some of the patients have been there 8 or 9 years. The Medicaid patients are treated the same as the private patients, to such a degree that no one knows which patients are Medicaid patients. Although the agreement with HRS allows a provider to leave the Medicaid program with 30 days notice, Hallandale has no intention to ever discontinue participation in the Medicaid program. The extended term of the renegotiated lease is not only advantageous to Hallandale, it is also beneficial to Hallandale's patients, including Medicaid patients. It secures continuity of care for the patients and ensures that the patients will not have to be moved to a new facility in 1986. The transfer from one facility to another can be a very traumatic event for an elderly person; some patients have died within weeks of a transfer. Further, the patients benefit immediately because the extended term of the lease allows Hallandale to make improvements to the facility and buy equipment that it would not have been able to do without the security of a long term lease. The lease payments called for by the new lease are not out of line with lease payments made by similar institutions. Mr. Lerner looked at other lease payments being made in the community and found that $110 per bed per month was not an exorbitant amount. James Beymer leased nursing home facilities that were not as nice as the Hallandale facility for $138 per bed per month $166 per bed per month, and $225 per bed per month. Had Hallandale purchased the facility for $3 million, the price asked by the owners, the cost per month per bed would have been over twice the amount of the lease payment. 3/ Lease payments are included in a facility's "fixed costs." The fixed costs also include depreciation, real estate taxes and insurance. The state places a cap on reimbursement rates for fixed costs. In June 1983, prior to the renegotiation of the lease, Hallandale's fixed costs were $4.61 per patient day; under the renegotiated lease, the fixed costs would be $5.16 per patient day. Thus, even with the higher lease payment, the fixed costs are considerably under the state cap of $12.50 per patient day. A provider's reimbursement rate is determined by HRS from a cost report submitted by a provider. The rate is a prospective per diem rate. If, during the prospective period, the provider incurs an increase in costs, the provider has a right to submit an interim rate request to HRS. The Department uses the same principles to determine whether costs submitted in an interim rate request should be allowed as in determining whether costs submitted in a cost report should be allowed. Lease payments are allowable expenses under the Medicaid program subject to the Medicaid cost reimbursement principles. In calculating Hallandale's per diem rate, HRS allowed Hallandale $84 per month lease cost for each Medicaid patient in the facility based on the 1971 lease. Prior to executing the new lease, Hallandale contacted HRS to inquire if the new lease cost would be allowable and was informed that the new costs would probably not be allowable. On November 9, 1983, Hallandale submitted an interim rate request to cover the increased cost of the new lease payments. The interim rate request was procedurally correct. By letter dated May 30, 1984, HRS denied the interim rate request because "...the lease cost was negotiated for investment related reasons and is not related to patient care." On June 25, 1984, Hallandale filed its petition for a formal administrative hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the interim rate increase requested by Hallandale be granted. DONE and ORDERED this 26th day of April, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 26th day of April, 1985.
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
Findings Of Fact Respondent, Deborah Lynn Tengzelius (Tengzelius), was at all time material hereto a licensed real estate broker in the State of Florida, having been issued license number 0229363. Tengzelius was the qualifying broker for Respondent, The Rental Center, Inc. (Rental Center), a corporation licensed as a real estate broker in the State of Florida under license number 0229362. Respondents are, inter alia, engaged in the business of providing rental information for a fee. Consequently, in October 1983, pursuant to the requirements of Rule 21V-10.30, Florida Administrative Code, Respondents forwarded to the Petitioner, Department of Professional Regulation, Division of Real Estate (Department), a copy of their proposed rental information agreement. By letter of October 31, 1983, the Department returned Respondent's proposed agreement with instructions to correct certain provisions to bring it into compliance with Section 475.453, Florida Statutes. Respondents made the necessary changes, and by letter of November 15, 1983, the Department advised them that their agreement now appeared to comply with the rules and regulations of the Florida Real Estate Commission. On August 22, 1985, Tengzelius, on behalf of the Rental Center, executed its standard rental information agreement with Elizabeth Wilson (Wilson) in exchange for a fee of $60.00. That agreement, previously approved by the Department, provided in part: NOTICE: Pursuant to Florida law, if the rental information provided under this contract is not current or accurate in any material aspect you nay demand within thirty (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 seventy-five (75 percent) percent of the fee paid if you make a demand within thirty (30) days of this contract date. CLIENT COMMITMENT As a prospective Tenant, I hereby agree: 1. To make any refund request within 30 days following above date, in writing, and delivered to The Rental Center, Inc. .... (Emphasis added). In mid-September, less than 30 days after the rental information agreement was signed, Wilson telephoned the Rental Center and requested a return of the fee she had paid. Wilson averred that she was not able to obtain a rental. Respondents refused to return 75 percent of the fee because Wilson's request was not in writing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the administrative complaint be DISMISSED with prejudice. DONE AND ORDERED this 10th day of February, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 10th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3776 Respondents submitted an unnumbered 13 paragraph memorandum of law and facts". These paragraphs have been number 1-13 and addressed as follows: Addressed in paragraph 4. Addressed in paragraph 3. 3-4. Addressed in conclusions of law. 5-7. Addressed in paragraph 2. 8-13. Addressed in conclusions of law if pertinent. Respondent's suggestion that the doctrine of entrapment is applicable to the facts of this case is ill-founded. See: Thomas v. State, 243 So.2d 200 (Fla. 2d DCA 1971). COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 C. Michael Shalloway, Esquire 909 North Dixie Highway West Palm Beach, Florida 33401 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact In June, 1975 Randall J. Conley, attempting to set his son and daughter-in-law up in business, arranged for them, with his help, to purchase Roger Sparks' business known as Sparky's Pizza. By Exhibit 6 dated June 17, 1975 the owner and lessor of the premises executed, with Randall M. Conley and his wife Sandra, a Consent to Assignment whereby the lease between the lessor and Mr. Spaghetti and Roger Sparks was assigned to the younger Conley and his wife and the previous lessees were released from further liability under the five year lease they had executed on April 30, 1974. (Exhibit 10) By Collateral Assignment Note dated 6-2-75 Randall J. Conley, Randall M. Conley and Sandra Conley obligated themselves to pay the Florida Center Bank $9750 over a five-year period and pledged the equipment and fixtures in the pizza business as security therefor. In October, 1975 Sandra, who had been operating the business, left for another job preparatory to separating from her husband. The business closed on November 1, 1975 and Defendant learned that the lessees were delinquent in the rent and payments on the chattel mortgage. Thereafter he attempted to sell the business. In November, 1975 Charles Hicks, the owner of a small fast-food chain, while looking for a site for a franchisee, saw the empty Sparky's Pizza and ascertained that information on occupying the property could be obtained from Defendant. He called Defendant's office and was told the rent was $260 per month. Arrangements were made for Defendant to show him the property the same afternoon. On November 25, 1975 Defendant showed Hicks and his putative franchisee, Ronald Beasley, the property. After being assured that the rental included the equipment and fixtures they agreed to accept an assignment of the lease if the lessor agreed and to bind the transaction Hicks gave Defendant a check for $200 made payable, at the request of Defendant, to Randall J. Conley. No written agreement was executed by the parties at this time. The check stated on its face that it was a deposit on lease of building here involved. The following day Defendant called Hicks and told him that the lessor had agreed with the assignment and that he should bring a check for $7,000 to pay for the equipment, plus a check for the rent. Hicks objected to the purchase of the equipment and demanded return of his $200 deposit. Defendant refused to return the money and Hicks immediately tried to stop payment on the check. When he did so he learned that his check had been cashed by Defendant as soon as the bank opened that morning, November 26. After Hicks was unsuccessful in getting his deposit returned he reported the incident to the FREC and the complaint here under consideration was filed. Defendant contends that he was operating as the owner of the lease and not in his capacity as a broker; that the consent to assignment of the lease did not result in an assignment; that by executing the collateral installment note he was part owner of the business; that when his daughter-in-law left and the business folded he acquired the leasehold by abandonment; and that he was entitled to retain Hicks' deposit of $200 as liquidated damages. One witness called by Defendant testified that the bank's policy on chattel mortgage loans was that they would only make such loans to the owners of the business. However, he acknowledged that he did not handle the loan here involved and never saw any documents showing Randall J. Conley having an interest in the leased premises, the equipment and fixtures for which was the subject of the loan represented by Exhibit 9. Defendant had advertised the sale of the lease in the newspaper and therein indicated the assignee of the lease would be required to assume payments on the equipment. Neither Hicks nor Beasley ever saw any such advertisement.
The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2017.
The Issue Whether or not Respondent's real estate license should be disciplined, because, as alleged, Respondent is guilty of fraud, misrepresentation, concealment, false promises and pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction; failed to place a trust deposit with her employing broker and operated as a broker while licensed as a salesman in violation of Subsections 475.25(1)(b), and (k), Florida Statutes.
Findings Of Fact During times material hereto, Respondent, Barbara B. Wise, was a licensed real estate salesman in Florida, having been issued license number 0484022. The last license issued Respondent was as a salesman, c/o Grover Goheen Realty, Inc., at 414 Twelfth Avenue, North, St. Petersburg, Florida. During October 1988, Respondent, while licensed and operating as a salesman in the employ of her broker, Goheen Realty, Inc., solicited and obtained a lease listing agreement from Michael Riggins. As a result of that listing, Marsha Tenny contacted Respondent and requested assistance in obtaining a seasonal lease for the period January 1989 through April 30, 1989. Ms. Tenny made Respondent aware of her needs respecting a lease property to include wheelchair access as her husband was wheelchair bound. As a result of visiting approximately three available units, Respondent secured a seasonal lease from Michael Riggins for Marsha Tenny. The lease agreement for the Tenny's was the first rental listing that Respondent had obtained and it suffices to say that she was a novice in the area of securing lease agreements. Likewise, her employing broker did very little volume in rentals as her broker was of the opinion that the net commissions were not sufficient to defray the time and effort involved for several reasons including the limited availability of rental properties. As a result, her broker was unable to provide guidance. Pursuant to the aforementioned lease agreement, Respondent named several options by which Marsha Tenny could secure the apartment to include sending a personal check to her and after negotiating it she would in turn pay the rental fees directly to the landlord. Other options included Ms. Tenny sending separate checks to the landlord for the apartment and a check for the commission fees to her employing broker or she could deal directly with the landlord and remit a separate check to her employing broker for fees. Ms. Tenny elected to send a money order in the amount of $1,500.00 to Respondent. After she negotiated the check she received from Marsha Tenny, Respondent retained her commissions and did not pay her broker the pro-rata share that the broker was entitled to. Respondent did not inform her broker of the Riggins/Tenny lease agreement when she received the deposit from the Tennys on or about October 23, 1988. Respondent negotiated the Tenny's deposit check by depositing same into her personal account and drew a check in the amount of $1,100.00 as the rental deposit and remitted it to Mr. Riggins on October 2.1, 1988. Respondent retained the $400.00 balance as her fee. Respondent tendered her employing broker its portion of the commission fees ($174.00) on February 24, 1989. During early February 1989, the Tennys expressed dissatisfaction with the apartment and demanded a refund from Respondent. Respondent wrote the Tennys a letter of apology and submitted a money order to Marsha Tenny in the amount of $50.00 on February 3, 1989. (Petitioner's Exhibit 4.) As stated, Respondent was inexperienced with the rental business in Pinellas County. She was at the time undergoing other family problems, including tending to a sister in Orange County, Florida, who was very ill. At the time, Respondent commuted from Pinellas County to Orange County several times per week to visit with and assist her sister. Additionally, Respondent's office was being relocated and the staff was having to relay messages to her through her husband and other salesman employed with her broker. In addition to sending the Tennys a money order in the amount of $50.00, Respondent agreed to repay the Tennys the entire remaining balance of the finders fee that she received from the Riggins/Tenny leasing agreement as soon as she was financially able to do so. (Petitioner's Exhibit 4.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be issued a written reprimand and placed on probation for a period of one (1) year. During the probationary period, Respondent shall enroll in an approved post-licensure course and shall satisfactorily complete the same prior to termination of probation. DONE and ENTERED this 4th day of April, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of April, 1990. Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barbara B. Wise 1059 42nd Avenue, N.E. St. Petersburg, Florida 33703 Darlene F. Keller, Executive Director Kenneth E. Easley, Esq. Division of Real Estate Department of Prof. Reg. 400 West Robinson Street 1940 North Monroe Street Post Office Box 1900 Suite 60 Orlando, Florida 32802 Tallahassee, FL 32399
The Issue The issues in dispute in this matter are as follow: Was the Respondent, Wit Zajack, responsible for the acts of the Respondent, Home Hunters II, Inc., and its employees prior to July 7, 1981, when Zajack's registration as the corporate broker's active firm member became effective? Was Zajack relieved of responsibility for the acts of the corporate broker by appointing a manager and delegating duties to the manager? Did the Respondents use an advance fee rental contract containing information as required by Rule 21V-10.30, Florida Administrative Code? Was the language used in said contract by the Respondents contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and in violation of Section 475.453, Florida Statutes? Did the Respondents fail to refund advance fees upon demand in violation of Sections 475.25(1)(e) and 475.453(1), Florida Statutes? The proposed findings as submitted in this matter by the parties have been considered by the Hearing Officer. To the extent they have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Wit Zajack, is a licensed real estate broker holding License #0219881. The Respondent, Home Hunters II, Inc., was a corporate real estate broker holding License #0218141. At the time of the accounts described in the Administrative Complaint, Home Hunters was operating as a corporate real estate broker. Home Hunters was engaged in a rental service business and advertised rental property information or lists, collecting an advance fee from prospective lessees. Zajack was aware that Home Hunters was engaged in the advance fee rental business from the beginning of his association with the firm. Zajack applied for registration as the active firm member for Home Hunters on March 5, 1981. His application contained various discrepancies and was returned for correction on May 8, 1981. The application was corrected and returned after 20 days 1/ to the Board of Real Estate, whereupon Zajack was registered as the active firm member effective July 6, 1981. On or before May 6, 1981, Zajack was held out to the public as being affiliated with Home Hunters by a sign at Home Hunters' offices on Colonial Drive in Orlando, Florida. At all times material to the allegations of the Administrative Complaint, Zajack was an officer of Home Hunters. Home Hunters used the contract form exemplified in Petitioner's Exhibits 8 and 11 from the start of its business activities until March of 1982. This form does not contain the language required by Rule 21V-10.30, Florida Administrative Code. At least as early as October of 1981, Zajack was aware of the fact that Home Hunters' contract did not meet the requirements of Rule 21V-10.30, Florida Administrative Code. He directed Tom O'Toole, the manager of Home Hunters, to correct the forms around the first part of 1982, but the forms were not corrected. Zajack referred all calls and letters of complaint which he received regarding the failure of Home Hunters to make refunds to O'Toole. O'Toole was given the responsibility to deal with all disputes for Zajack. Zajack did not follow up on the complaints. During this time, Zajack resided in Fort Myers, Florida. O'Toole and Zajack's business partner, Ralph Snyder, Jr., organized and ran Home Hunters. Melissa Diehl entered into an advance fee rental contract with Home Hunters on July 1, 1981, paying Home Hunters $50 for this service Diehl did not receive information on apartments which was consistent with the specifications she had given Home Hunters, or which were available for rental. She called Home Hunters about apartments she saw listed in its advertisements in the newspaper and was advised they had been rented. Diehl located a rental on her own and requested a refund from Home Hunters. She made several demands for a refund but never received a refund. She specifically asked to speak with Zajack but was told he was not available. On June 16, 1981, Brenda Mosely entered into an advance fee rental contract with Home Hunters, paying Home Hunters $50 for its services. Mosely called Home Hunters as required by the contract but did not receive listing information which was consistent with the specifications she had stated in her contract. Mosely orally requested a refund of her money after the 21-day period. She was advised to put her request in writing, which she did. She was denied a refund by Home Hunters on the basis that she had not called for 21 days, because she had not called on weekends when Home Hunters was closed. Ralph Tropf contracted with Home Hunters on March 26, 1981, for rental information, paying a $50 fee to Home Hunters in advance for its services. None of the information he received was consistent with the specifications he had given to Home Hunters. Tropf called for the 21-day period required in the contract and found a rental on his own. On April 16, 1981, Tropf made a written request for a refund. He never received a reply from Home Hunters. Tropf reported the matter to the Better Business Bureau, which forwarded to him the reply of O'Toole which stated Tropf had not complied with the terms of the contract to call for 21 days. On April 27, 1981, O'Toole advised Tropf that Zajack was the person to whom Tropf should detail his complaints. In March of 1981, Mrs. Gwenda Eva Roe had a similar experience to those described above in attempting to obtain a refund of money paid by her minor daughter to Home Hunters for rental information services.
Recommendation Having found that the Respondents, Wit Zajack and Home Hunters II, Inc., are in violation of Rule 21V-10.30, Florida Administrative Code, and Sections 475.453 and 475.25(1)(e), Florida Statutes, it is recommended that the license of Wit Zajack be suspended for one year. DONE and ORDERED this 22nd day of July, 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 22nd day of July, 1982.
