The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm. Malloy now wishes to enter the real estate profession and eventually specialize in appraising. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a real estate salesman be GRANTED. DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666 Petitioner: 1. Covered in finding of fact 1. 2-3. Covered in finding of fact 4. 4-6. Covered in finding of fact 2. 7. Rejected as unnecessary. 8-9. Covered in finding of fact 4. 10-11. Covered in finding of fact 3 12-13. Covered in finding of fact 4. 14. Covered in finding of fact 3. 15. Covered in finding of fact 6. 16-32. Covered in finding of fact 7. 33. Rejected as unnecessary. 34. Covered in finding of fact 5. 35. Covered in finding of fact 4. 36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7. 39. Rejected as unnecessary. COPIES FURNISHED: Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220 Sarasota, Florida 34237 Manuel E. Oliver, Esquire Room 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether the Respondent, Joseph E. Stalls, Jr., committed the violations alleged in an Administrative Complaint issued by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, on July 19, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the "Department"), is the state agency charged the duty to prosecute administrative complaints pursuant to Section 20.125, and Chapters 120, 455, and 475, Florida Statutes (2000). At the times material to this proceeding, Joseph E. Stalls, Jr., was a licensed Florida real estate salesperson. Mr. Stalls license number is 0125262. For his last issued license, Mr. Stalls was an active salesperson c/o Jim See Realty, Inc., located at 206 North 6th Avenue, Wauchula, Florida 33873. Prior to 1999, Mr. Stalls was actively engaged in growing, harvesting, and selling citrus. Mr. Stalls engaged in this business through a corporation, Stalls Fruit Co., Inc. (hereinafter referred to as "Stalls Fruit"). Mr. Stalls owned half of the stock of Stalls Fruit and was its president. Stalls Fruit elected coverage for its workers' compensation insurance through the Florida Fruit & Vegetable Association Self-Insurers' Fund (hereinafter referred to as the "Fund"). On or about August 21, 1998, an Information was issued in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, charging Mr. Stalls with engaging in a scheme to defraud the Fund "to-wit: workers' compensation coverage from Florida Fruit & Vegetable Association Self- Insurer's Fund pursuant to policy number 840-8844-01, as valued by the diminution in premium payments resulting from said fraud or fraudulent pretenses or representations, with an aggregate value of $50,000 or more, in violation of Florida Statute 817.034(4)(a)." On or about February 17, 1999, Mr. Stalls pled guilty to the charge of the Information, which constitutes a felony. The court, upon the entry of Mr. Stalls' plea, withheld adjudication, ordered Mr. Stalls to serve one day in the Orange County Jail, with credit for a day already served, placed Mr. Stalls on Community Control for one year, followed by ten years of supervised probation, ordered Mr. Stalls to perform 500 hours of community service within a three-year period, and ordered that he make restitution in the amount of $738,566.00. The requirement that Mr. Stalls make restitution has placed an extreme financial hardship on him. Mr. Stalls, unaware that he was required to inform the Florida Real Estate Commission of his plea, and based upon his incorrect understanding of the consequences of adjudication being withheld, failed to report these events to the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered finding that Joseph E. Stalls, Jr., violated Section 475.25(1)(f) and (p), Florida Statutes (1999), and that his salesperson license be revoked. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002. COPIES FURNISHED: Donna K. Ryan, Esquire Department of Business and Professional Regulation Division of Real Estate Hurston North Tower 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1772 Joseph E. Stalls, Jr. 1165 36th Avenue Vero Beach, Florida 32960 Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-22202
The Issue The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's real estate salesperson license should be revoked or otherwise disciplined.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Subsection 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and the administrative rules promulgated pursuant thereto. Respondent Pamela Winn Weldon is and was at all times material hereto a licensed Florida Real Estate salesperson, issued license number 0618890 in accordance with Chapter 475, Florida Statutes. From April 23, 1996, to the present, Respondent has been licensed as an inactive salesperson. On September 24, 1994, Respondent executed an application for licensure as a real estate salesperson. Respondent completed and signed the application. By her signature she affirmed that the contents of the application were true and correct to the best of her knowledge. On or about October 23, 1982, Respondent, while represented by counsel pled nolo contendere to a worthless check charge in the Criminal Division of Highlands County Court, Case No. CR82-185. Respondent's plea arose from an incident which occurred while she was having marital difficulties with her former husband. Respondent wrote a check for $250 to pay for repairs to her former husband's vehicle, with the understanding that her former husband would transfer the funds to Respondent's checking account to cover the amount of the check. Respondent's former husband failed to transfer the funds. Respondent was thereafter arrested at her place of employment, and charged with a worthless check violation. Respondent's counsel negotiated a plea agreement with the state attorney's office under the terms of which Respondent pled nolo contendere to the worthless check charge, was required to make restitution, and pay court costs. Respondent accepted the terms of the plea agreement and appeared in court, at which time the judge stated to Respondent that he did not want to see her in court again. Respondent satisfactorily completed her sentence by making restitution and paying court costs. Respondent was not placed on probation. Question number 9 on the application read as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendre (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believed those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered "no" to question number 9. Respondent is a high school graduate and completed two years at Manatee Junior College. Although question number 9 advised the applicant, in boldface type, to consult an attorney or contact the Division of Real Estate if the applicant did not understand it, Respondent, prior to answering "no" did not consult with an attorney or the Division of Real Estate. At formal hearing, Respondent indicated that she understood the language contained in the application. After learning of the charges brought by Petitioner against her, Respondent sent a letter to Petitioner's records section indicating that she did not understand question number 9 on the application. At formal hearing, Respondent indicated that she did understand question number 9 but thought she was answering it correctly because she believed she had been found not guilty of the 1982 worthless charges. Respondent was 24 years old at the time she pled nolo contendere to the worthless check charge in 1982. She was represented by counsel who advised her at the time that she entered her plea. Respondent accepted the terms of the plea agreement, appeared in court, entered her plea, and was specifically instructed by the judge regarding her future conduct. She made restitution and paid court costs. In light of these circumstances, neither Respondent's initial statement that at the time she filled out the application, she did not recall the incident, nor Respondent's subsequent statement that she believed she had been found not guilty are credible. Moreover, even if Respondent believed there existed some uncertainty as to the legal effect of her plea of nolo contendere in 1982, the real estate salesperson license application clearly, and in boldface type, informs the applicant that under such circumstances the applicant should contact an attorney or the Division of Real Estate, neither of which the Respondent did.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's license as a real estate salesperson. DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Pamela Weldon Post Office Box 10667 Bradenton, Florida 34282 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Floridaa 32802-1900 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent operated as a real estate broker or sales associate without a license, in violation of Section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent has not been licensed as a real estate broker, broker sales-associate, or sales person in the state of Florida. Respondent entered into an arrangement with Tina Mathews, who holds a valid broker or sales person's license, to find buyers in return for which she would split the commission with him. Although Respondent never showed the properties to prospective buyers, after finding them, he performed other, unspecified tasks to ensure that the deals closed and he would be paid. Respondent's defense is that he did not know that what he was doing was illegal. In fact, this case arose by a complaint filed by Respondent against Ms. Mathews, who had paid him several times in the past for similar work in connection with other transactions. When Ms. Mathews declined to pay Respondent in connection with three other transactions described in the Administrative Complaint, Respondent contacted Petitioner, which, after an investigation, brought these charges against Respondent for two transactions, as identified in the Administrative Complaint, for which Ms. Mathews paid him. In one letter (received June 12, 2007) from Mr. Haque to Petitioner, he acknowledges that he has "done 10 more deals with [Ms. Mathews] in the past for which she compensated me 1/3 of her commission. Enclosed are the HUDS for Ronald Nicolas and Beryl George . . .." These are the two transactions that are the subject of the Administrative Complaint, so there is no doubt that Respondent received compensation for his work on these two transactions. It is difficult to determine exactly what Respondent did to "earn" his share of the commission, although clearly he found the buyers. Although Respondent claims to have substantial work on each of these transactions, he is vague about what he did, and the weight to be accorded this admission is limited due to Respondent's persistent misunderstanding of this case as some sort of vehicle by which he can obtain payment for his share of the commission for the three subsequent transactions about which he filed a complaint against Ms. Mathews. The only remaining element of Petitioner's case against Respondent involves any ownership interest that Respondent may have had in the two properties identified in the Administrative Complaint. A summary of the investigator's interview with Ms. Mathews, who did not testify, states that she told the investigator that the deals that she did with Respondent were with properties that he owned. However, Respondent supplies the needed evidence as to this critical point when, in his post- hearing statement, he refers to this statement from the investigator and disputes it by stating: "The fact is, this is the only property in my complain [sic] I own with Ms. Mathews as agent of record." It is impossible to determine whether this admission applies to one of the two transactions that are the subject of the Administrative Complaint or one of the transactions for which he is, even now, seeking payment. At minimum, though, even if the statement applies to one of the two subject transactions, it applies to only one of them, and, by negative implication, Respondent concedes that he was not an owner of the other property. On the basis of this record, Petitioner has proved all of the above-cited allegations of the Administrative Complaint in connection with both transactions that underlie Count I.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding Respondent guilty of operating as a broker or sales person without a license and imposing an administrative fine against him of $5000. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 June, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 802 North Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Syed Haque 10100 Country Brook Road Boca Raton, Florida 33428
The Issue The issue for consideration in this case is whether the Respondent's license as a real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the regulation of the real estate profession and the licensing of real estate professionals in Florida. The Respondent, Gabor A. Banfi, was licensed as a real estate broker in this state and has held a real estate license since 1981. In April, 1990, a claimant sued Banfi Realty, Inc., located at 807 NE 8th Street, Delray Beach, and owned by the Respondent, for allegedly concealing defects in a property he had sold. The claimant secured Final Judgement against Banfi Realty in August, 1990, amended in September, 1990 as to amount only. In November, 1990, the claimant sued Respondent indiovidually. Before that suit was judicially resolved, in January, 1991, Respondent and the claimant entered into a stipulation whereby Respondent would pay a lesser amount than was called for in either the suit against him or in the judgement against his company. Thereafter, in May, 1991, the claimant also got a judgement against the Respondent, and, after Respondent had paid 3 monthly payments of $25.00 each called for under the terms of the stipulation, on August 1, 1991, the claimant notified the Commission of a possible recovery fund claim. She asserted that her diligent search and inquiry had failed to locate any assets of Mr. Banfi to satisfy the final judgement. By Final Order dated October 16, 1991, the Commission paid the claimant $866.25 as the amount due from Respondent, and, coincidentally therewith, suspended Respondent's license as a broker until such time as he reimbursed the fund in full the amount paid the claimant. The certificate of service on this Final Order reflects that a copy was sent by US Mail to the Respondent at his Banfi Realty, Inc. address, 807 NE 8th Street, Delray Beach, on October 21, 1991. The evidence shows, however, that in April, 1990, approximately 18 months prior to the entry of the Commissions Final Order suspending his license, Respondent closed Banfi Realty, Inc. and went to work with Prudential Florida Realty in July, 1990. At that time, Respondent signed a request to register the Prudential Florida Realty as his employer and, to the best of his knowledge, the management of that firm was to forward this form to the Commission. Respondent believed this was done. However, he received neither confirmation of the change nor notice it had been denied. This did not disturb him, however, since his understanding was that no acknowledgment was sent out. He had renewed his license in April, 1990, and was not due to again renew until April, 1992. Petitioner failed to present any evidence to indicate whether Respondent's change of address was ever received by the Commission. The documentation in his licensure file kept at the Commission reveals that in February, 1992, Geraldine Spinella, Vice President of the Prudential office where Respondent went to work, wrote to the Commission and enclosed what purported to be a copy of the form 400.5 sent in on or about July 2, 1990, reflecting The Prudential Florida Realty, 160 SE 6th Avenue, Delray Beach, as his new employer. No evidence in rebuttal was submitted by the Department. Respondent unequivocally denied having received any notice of the Fund payment from the Commission. It is noted that approximately 30 days after Respondent signed the form 400.5 in July, 1990, The Prudential Florida Realty changed its name to FMT Holding Ltd., t/a The Prudential Florida Realty, and a second form 400.5, reflecting Respondent's new business address was sent in. In February, 1992, Respondent learned from an associate that the then most recent Commission newsletter reflected the Final Order regarding the Fund pay out and his resultant license suspension. On February 12, 1992, Respondent sent in his check to reimburse the Fund in full for its pay out. The accompanying letter reflected Respondent's home address of 2001 SW 15th Avenue in Boynton Beach. Nonetheless, the Department's letter of acknowledgment dated February 26, 1992 was sent to the invalid Banfi Realty, Inc. address. At the same time he sent in his repayment, Respondent had Prudential send in another request for employee registration change, (Form 400.5), which included a copy of the prior form sent in previously. (See FOF #6, supra.) Thereafter, Respondent's license was reinstated and renewed for 2 years on April 1, 1992. Respondent admits that during the period his license was suspended, he continued to operate and do business as a broker. He claims not to have known of the suspension, however, and asserts in support of his claim that he had been elected President of the Delray Beach Board of Realtors and consciously would have done nothing to jeopardize his ability to serve in that position or to jeopardize his ability to earn his living in the real estate profession. In late July, 1992, in response to an inquiry by Prudential, Respondent was advised that his address change had been entered on the Commission records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered concluding that Respondent had operated as a real estate broker in Florida without a valid and current active license therefor, but assessing no further penalty because of the mitigating circumstances shown to exist regarding notice to him of the existence of the suspension. RECOMMENDED this 31 day of August, 1992, in 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 31st day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3326 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. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but noted that the service was made to Respondent's former address, a change from which had previously been noticed to the Commission. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Copies furnished: James H. Gillis, Esquire DPR - Division of Real Estate Suite N-308, Hurston Building 1400 W. Robinson Street Orlando, Florida 32801-1772 Gabor A. Banfi FMT Holding Company, Ltd. The Prudential Florida Realty 160 South 6th Avenue Delray Beach, Florida 33483 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue is whether Petitioner is entitled to seek relief pursuant to the Florida Civil Rights Act of 1992 under the jurisdiction of the Florida Commission on Human Rights.
Findings Of Fact Mr. DeLeo is a former Miami homicide detective, who received a disability retirement. He has held a real estate salesman license and real estate broker's license since about 1986. Both licenses were issued by the State of Florida. Official recognition was taken that he is over 40 years of age. POV is the sales arm of a venture known as The Villages of Lake Sumter (The Villages). The Villages is a large community located south of Ocala, Florida. It is a development that caters to persons 55 years of age and older and provides recreational opportunities, including golf. Sales of new homes in The Villages are handled exclusively by POV. The typical real estate broker-salesperson relationship is clearly one of principal and independent contractor, and cases in Florida and elsewhere describe it thus. However, The Villages mass markets its concept and its properties, nationally, and as a result, POV's relationship with its salespersons is not typical. In the course of marketing its real estate, The Villages advertises nationally. This marketing effort attracts large numbers of potential buyers to visit. A guest coordinator, who is an employee of The Villages, books visits for potential buyers. When guests arrive they are greeted by the guest coordinator who connects them with a sales representative, like Mr. DeLeo. Mr. DeLeo worked in the real estate business for about 21 years prior to becoming involved with POV. He entered into a contract with POV on September 30, 2004. The contract is entitled, "Independent Contractor Agreement" (Agreement). The Agreement was drafted by POV, and Mr. DeLeo had no opportunity to negotiate its terms. As will be discussed below, it is the actual relationship between the parties that controls the outcome of this case, not the title of the Agreement. The Agreement provided that either party could terminate the contract at will. Mr. DeLeo learned that he had been terminated on April 7, 2008. Mr. DeLeo attended an extensive training program provided by POV. He completed the training in February 2001 and thereafter began selling property pursuant to the Agreement. According to the Agreement, Mr. DeLeo could only sell houses marketed in The Villages. He was specifically prohibited from selling property not located in The Villages. He sold new properties owned by The Villages and property marketed by individuals in The Villages, in accordance with the Agreement. In a typical broker and salesperson relationship, the salesperson is not limited to selling in a geographically defined area. The Agreement had an attachment to it that was entitled Commission Structure. This set forth the details of how Mr. DeLeo was to receive compensation. Mr. DeLeo was satisfied with the commission arrangement. He received no salary. If a dispute arose over splitting a commission, the dispute was resolved by POV. Typically, disputes between real estate sales persons are resolved by committees of realtors acting under the auspices of a multiple listing service. POV provided Mr. DeLeo, as well as all salespersons, with an office, telephones, computer support, and all other items needed to complete a real estate sale except for an automobile which Mr. DeLeo provided. The computer provided a shared database which maintained information about potential buyers, and the information in the database was reviewed by management. Mr. DeLeo was required to provide liability insurance, business cards, certain signs, lock boxes, and on occasion, to pay the salaries of personal assistants, who are provided by POV. Paragraph 4 of the Agreement recites that "The parties agree that the Sales Representative is an independent contractor and not an agent, joint venturer, or employee of POV or The Villages, and nothing in this Agreement shall be construed to be inconsistent with this relationship or status. Hours devoted by the Sales Representative is [sic] entirely within the Sales Representative's control, and POV will rely upon the Sales Representative to work those hours that the Sales Representative deems necessary to perform the job in a competent and professional manner." Mr. DeLeo testified that he was required to work a set schedule and that he was required to obtain permission from a "team leader" prior to taking vacation time. Vacation time was limited. The team leader evaluated the performance of salespersons and provided feedback on ways to improve performance. The team leader was a salaried employee of POV. This sort of supervision is not typical in the real estate business. POV asserted that they did not exercise control over their salespersons with regard to working hours. However, it is unlikely that The Villages would import a large group of potential buyers and merely hope that sufficient staff would be available to make sales. Clearly, POV required salespersons to be available when needed by POV. Accordingly, the weight of the evidence proves that Mr. DeLeo's work schedule was controlled by POV. Therefore, the testimony of Mr. DeLeo is deemed accurate. Supervision of the team leader included accompanying the salespersons to meetings with clients and listening in on telephone contacts to critique the salesperson's performance. The close supervision is different from the usual relationships found in the real estate business. It is more controlling than that found in independent contractor relationships. In late 2007, POV introduced a new sales program called ValueMatch. Mr. DeLeo was required to participate in the ValueMatch sales training and utilize the ValueMatch sales approach. Mr. DeLeo was required to document his compliance with the ValueMatch sales program via a worksheet at every client contact. This requirement demonstrates that POV maintained close control over its sales and marketing representatives. POV provided an information packet to Mr. DeLeo and other sales and marketing representatives in 2006 and again in 2008. The 2006 version listed numerous "Essential duties and responsibilities." It includes a duty to be "Present and prepared for work when noted by various rotation options and/or customer needs" and "Attend training opportunities, team huddles and meetings." The 2008 version includes, "Present and prepared for work when noted by various appointments to include Open Homes, New Home showcase, 1st and 2nd Step CMA's, Resident Touches, Rotation, Pre Owned Home Floor Time, and any other customer opportunities. All appointments are expected to be logged in the customer AS400 account allowing various members of the support staff to assist in the process." The information packets present these requirements as imperatives and thus exhibit an exercise of close control over sales and marketing representatives. The 2006 version, under "Some Recommendations," sets out a detailed dress code. The 2008 version merely requires maintaining a professional appearance. It is clear that these requirements are imperative in nature thus reveal the exercise of close control over sales and marketing representatives. Both information packets address rotation (or work) schedules that are consistent with maintaining close control over the work schedules of sales and marketing representatives. Upon consideration of all of the evidence, and despite the title of the contract to the contrary, it is clear that POV maintained tight controls over the activities of their sales and marketing representatives, and, of course, over Mr. DeLeo.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations assert jurisdiction over Petitioner Joseph DeLeo and Respondent Properties of The Villages, Inc., and commence proceedings pursuant to Section 760.11, Florida Statutes. DONE AND ENTERED this 16th day of July, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of July, 2009. COPIES FURNISHED: Carla D. Franklin, Esquire Carla D. Franklin, P.A. 204 West University Avenue, Suite 3 Gainesville, Florida 32601 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented is whether the Respondent violated Section 475.25(1)(a) and Secton 475.25(3), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact The Respondent, Nettie Byer, was employed by Continental Marketing Services from November 3, 1975, until March 31, 1976, as a broker salesman. The deposition of Maureen Palloti was received into the record subject to the objections ruled on in the Hearing Officer's Order heretofore entered in the record. The testimony of Edward Nadelman was received. Nadelman stated that he was contacted by telephone by a person who represented that she was Nettie Byer. The caller stated that she was with Continental Marketing Services, a real estate sales organization. The caller further represented that if Nadelman paid a $350 advance fee, Continental Marketing Services would list Nadelman's property advertising it widely within the United States and abroad, selling it for several times what Nadelman paid for the property. Nadelman subsequently received a copy of that advertisement for his property. Nadelman's property was not sold. The deposition of Maureen Palloti reflects that Mrs. Palloti and her husband were contacted by a caller who identified herself as Nettie Byer. The caller made representation similar to those made to Edward Nadelman. As a result, the Pallotis entered into a listing agreement with Continental Marketing Services, paid an advance listing fee, and subsequently received a proof of an advertisement of their property. Evidence was presented that Nadelman's and the Pallotis' property was not worth the price suggested by the caller as the price at which the property could be sold. However, no guarantees of sale were made by the caller. No evidence was introduced that the individual who called Edward Nadelman or that the individual who called the Pallotis was the Respondent, Nettie Byer. No evidence was introduced that the Respondent had any knowledge of the business activities of Continental Marketing Services. No evidence was introduced that Continental Marketing Services did not perform in accordance with the listing contracts with the Pallotis or with Nadelman.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the license of Nettie Byer as a broker salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of March, 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530,Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert D. KIlausner, Esquire 28 W. Flagler Street, Suite 804 Miami, Florida 33130 Mark A. Grimes, Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
