The Issue The issue is whether Respondent should grant Petitioner a real estate broker license.
Findings Of Fact Mr. Mouflouze has held real estate licenses in New Hampshire and Maine for about 28 years. He lives in Portsmouth, New Hampshire, which abuts the Maine border. It was because he lives in close proximity to Maine, that he maintained a license there, also. The Commission, pursuant to Chapter 475, regulates real estate brokers and sales associates. The Commission accomplishes this regulation through the Division of Real Estate of the Department of Business and Professional Regulation. Mr. Mouflouze currently holds a broker's and salesperson's license in New Hampshire. He has not experienced any disciplinary action in that state. These licenses have an expiration date of April 1, 2008. From 1982 until 2004, Mr. Mouflouze held a designated broker's license in Maine. Prior to February 19, 2004, Mr. Mouflouze failed to complete the required hours of continuing education in Maine, according to the Maine Real Estate Commission (Maine Commission). He disagreed with this conclusion. He attended a hearing before the Maine Commission and after the hearing the Maine Commission ordered him to pay a fine of $900 and to complete six hours of continuing education. Mr. Mouflouze refused to pay the fine or otherwise obey the order. As a result, the Maine Commission had another hearing in his case on August 19, 2004, based on his failure to comply with its order. As a result of that hearing, his designated broker license was revoked effective the date of the hearing. As of the date of the hearing in this case, his license in Maine had not been reinstated. Mr. Mouflouze is a person who is regarded as a highly qualified and ethical real estate broker. He is reputed to be honest and hard-working.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission deny William Peter Mouflouze's application for licensure as a real estate broker. DONE AND ENTERED this 24th day of October, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William Peter Mouflouze Bill Mouflouze Real Estate Post Office Box 6541 Portsmouth, New Hampshire 03802-6541 Nancy B. Hogan, Chairman Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not Petitioner meets the qualifications for licensure as a real estate salesman.
Findings Of Fact On June 13, 1988, Petitioner filed an application for licensure as a real estate salesman. In responding to question 14(a) of the application, Petitioner answered that his license, as a real estate broker, had been revoked for non-payment of an administrative fine. (Respondent's exhibit 1). Petitioner attached to his application a copy of a transcript of an administrative hearing held in DOAH Case No. 84-0981. A final order was entered in that case based on a stipulation wherein Petitioner agreed to pay an administrative fine of $500 within 30 days of entry of the final order. Petitioner has not paid the administrative fine as he agreed. Petitioner admitted during hearing that he had not paid the fine and made an offer during the hearing herein to pay that fine in as much as he failed to pay it earlier since he did not have the wherewithal to pay the fine. Petitioner is now employed as a sales representative with Metropolitan Life Insurance Company. 1/ Petitioner's license as a real estate broker was revoked by Respondent based on his failure to pay an administrative fine imposed in an earlier case (DOAH Case No. 86-145, Respondent's exhibit 2).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner's application for licensure as a real estate salesman be DENIED. RECOMMENDED in Tallahassee, Leon County, Florida, this of 27th day of January, 1989. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: Respondent, Robert E. Zimmerly (Zimmerly) is a licensed real estate broker having been issued license No. 0127833, with last known address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a real estate broker. Respondent, Haines City Realty, Inc. (Haines City) is a licensed corporate real estate broker having been issued registration No. 0146307, with its last known business address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a corporate real estate broker. Haines City's license is currently in an inactive status. At all times pertinent to these proceedings, Zimmerly was the sole broker, of and for Haines City, and was its President. Several weeks prior to April 23, 1981, the date N. B. Willoughby (Willoughby) signed the first offer to purchase the property (offer), Zimmerly along with Barbara Costello (Costello) and Chancellor I. Hannon (Hannon) showed the property described as "Lots 230 and 233 of the Lucerne Park Fruit Association Subdivision, P1at Book 3, Page 67, Public Records of Polk County, Florida" (property), consisting of approximately 20 acres and contiguous to the city limits of Winter Haven, Florida to Willoughby, a prospective buyer, along with Ray Workman (Workman), Willoughby's associate. Costello at the time was a sales person for American Realty of Haines City, now known as American Realty of Polk County, Inc., (American Realty). Zimmerly was representing Haines City. Hannon was representing Ridge Holding Association, Inc., (seller) the owner of the property. The property had originally been listed with Haines City but presently was considered as being listed with American Realty. Subsequent to having seen the property, Willoughby instructed Zimmerly to prepare an offer to purchase, with a purchase price of $70,000, subject to the condition, among others, that the seller would obtain a special exception for a mobile home park. A deposit check for $500 was submitted along with the offer. Costello submitted the offer to Hannon for seller. Sometime around April 25, 1981, Hannon notified Costello that the seller had rejected Willoughby's offer because of the condition concerning a special exception for mobile home park. Within a day, Costello notified Zimmerly of the rejection. Zimmerly requested rejection in writing which Hannon did not furnish until May 11, 1981 due to his involvement in personal matters. Willoughby was not notified of seller's rejection of his first offer until around May 11, 1981. On April 27, 1981, after a verbal notification by Costello of rejection of Willoughby's offer, Zimmerly prepared and submitted an offer to purchase (Ridge offer) from Ridge Crest, Ltd., Agent, (This was apparently meant to be Ridge Crest Villas, Ltd.) signed by Bob Zimmerly, a general and limited partner, to seller, with a purchase price of $72,000, subject to the condition, among others, that seller furnish a letter requesting a special exception for mobile homes park. The Ridge offer was submitted to Hannon for the seller and was accepted by seller on May 5, 1981. On May 18, 1981 Willoughby submitted his second offer to purchase (second offer), with deposit, to seller through Zimmerly. The second offer was identical to the first offer except for the deletion of the condition requiring a special exception for mobile home park. Zimmerly did not advise Willoughby at this time, or at any other time material to the transaction, that Zimmerly was involved in an attempted purchase of the property through Ridge Crest Villas, Ltd. even though the Ridge offer had been accepted on May 5, 1981. Although the Ridge offer indicated a closing date of May 15, 1981, the transaction did not close for reasons not clear in the record, until May 27, 1981. The warranty deed and the mortgage deed executed on day of closing shows Ridge Crest Villas, Ltd. as the Grantee and Mortgagor, respectively. The deposits submitted with both of Willoughby's offers were timely refunded by Zimmerly. Willoughby was notified by Hannon after the closing that his second offer was rejected. On November 6, 1980, a limited partnership known as Ridge Crest Villas Ltd., was filed with the Secretary of State. The record is not clear, but apparently this limited partnership was involuntarily dissolved for failure to file an annual report and on October 14, 1981, an identical limited partnership, with the same name was filed with the Secretary of State. Both limited partnerships listed Robert E. Zimmerly as a general partner with 5 percent interest and listed Robert E. Zimmerly and Dolores J. Zimmerly as limited partners with 45 percent and 50 percent interests, respectively. Respondent Zimmerly's testimony was that: (1) he wanted a written (firm) rejection before notifying Willoughby because of previous dealings with Willoughby; (2) it is not uncommon to use limited partnerships in real estate transactions because of the availability of tax advantages when using a limited partnership; (3) he was acting for Jones and Destefano when he made the offer and purchased the property in the name of the limited partnership; (4) he intended for Jones and Destefano to own the property through the limited partnership and took a promissory note for the down payment; (5) he did not advise Willoughby of his involvement in the purchase of the property, other than in general terms "that some fellows from up north are interested" (Destefano is "from up North") because he had been taught in real estate schools, and it was his policy, not to discuss one prospective buyer's offer with another prospective buyer; and (6) it is common practice to have a "backup" offer as with Willoughby's second offer because you are never sure if a particular transaction will close. Mainly, this testimony went unrebutted by the petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that respondent be found guilty of a violation of Section 475.25(1)(b), Florida Statutes 1981) For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand and impose an administrative fine of $1,000.00. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 May, 1985. COPIES FURNISHED: James R. Mitchell Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite 308 P.O. Box 1900 Orlando, Florida 32802 Arthur C. Fulmer, Esquire P.O. Drawer J Lakeland, Florida 33802 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802
The Issue Whether Respondent real estate broker is guilty of a discriminatory housing practice against Petitioners related to the sale and marketing of their home.
Findings Of Fact Petitioner homeowners allege that Respondent real estate broker discriminated against them by the length of the exclusive listing contract Petitioners signed with Respondent (eight months); by inferior service because Respondent showed Petitioners' home only once in the eight months the contract was in effect1/; by incorrectly stating the agreed asking price on flyers Respondent circulated; by providing an "open house" to all of Respondent's other clients, but not to Petitioners; and by asking Petitioners to remove some of their bi-racial family photographs. Petitioner Donald Smith, Ph.D., is Caucasian. He is married to Miranda Smith, a dentist, who is African-American. They have at least one child, with whom they have been photographed. This case involves a house they owned on Cressida Circle in Spring Hill, Florida, where they displayed their bi- racial family photographs. On or about January 28, 2007, Petitioners signed, as sellers, an exclusive real estate listing contract with Kathlen Hobbs, a real estate salesperson, who at that time was an independent contractor associated with Exit Realty Shoppe. Respondent Montgomery, real estate broker, is the qualifying principal of Exit Realty Shoppe. Both Ms. Hobbs and Ms. Montgomery are Caucasian. The agreed asking price was $296,900.00. The term of the contract was for eight months: January 30, 2007, to October 1, 2007. Mr. Smith interviewed two other realtors, but he selected Ms. Hobbs and Respondent's proffered contract. It is a "fill-in the blanks contract," to which Mr. Smith had input. Although she signed the contract, Mrs. Smith did not speak to either Ms. Hobbs or Ms. Montgomery concerning the sale of the house at any material time. Mr. Smith testified that Ms. Hobbs initially told him that their home was "priced to sell" at $296,900.00, but he candidly admitted that Ms. Montgomery never made that representation and never "guaranteed" that the house would sell at that price. Upon the evidence as a whole and because Mr. Smith testified at one point that the other two realtors he interviewed told him the house would sell at "$295,000.00 or $296,000.00," and also testified contrariwise that Ms. Hobbs and the other two realtors told him the house would sell at "between $292,000.00 and $298,000.00," it is found to be more probable that no one guaranteed a sale at Petitioners' asking price of $296,900.00. Petitioners seek damages of $15,000.00, without stating any specific basis for that figure. They previously have sought $40,000.00, damages based upon the alleged lowered price of the house as sold by a subsequent realtor. However, the final date of sale and final sale price are not clear on this record. Paragraph Nine of the parties' contract provided for its early termination prior to its eight-month expiration date, upon the following terms: CONDITIONAL TERMINATION: At Seller's request, Broker may agree to conditionally terminate this Agreement. If Broker agrees to conditional termination, Seller must sign a withdrawal agreement, reimburse Broker for all direct expenses incurred in marketing the Property and pay a cancellation fee of $ plus applicable sales tax. Broker may void the conditional termination and Seller will pay the fee stated in paragraph 6(a) less the cancellation fee if Seller transfers or contracts to transfer the Property or any interest in the Property during the same time period from the date of conditional termination to Termination Date and Protection Period, if applicable. (Blank space in original; emphasis supplied.) Paragraph Six of that listing contract provides, in pertinent part: 6. COMPENSATION: Seller will compensate Broker as specified below for procuring a buyer who is ready, willing and able to purchase the Property or any interest in the Property on the terms of this Agreement or on any other terms acceptable to Seller. Seller will pay Broker as follows (plus applicable sales tax) 6% of the total purchase price OR $ , no later than the date of closing specified in the sales contract. However, closing is not a prerequisite for Broker's fee being earned. (Blank space in original.) Steve Van Slyke has been an active licensed real estate broker for over 20 years. For the last few years he has done more property appraisals than real estate sales. He has regularly taught and taken continuing education courses in the real estate profession since he was admitted to the profession in 1983. He has chaired the Professional Standards Committee of the Hernando County Association of Realtors (HCAR) since 1991. In that capacity, he has presided over hundreds of contract disputes between buyers and sellers, including the one that ultimately developed between the parties in this case. See infra. According to Mr. Van Slyke, the contract in this case is one commonly used in Hernando County, in the sense of not being unusual, but there are no "average," "usual," or "industry standards" for the duration of an exclusive real estate listing contract. He further testified that to have such a generally agreed-upon provision within the real estate industry would run afoul of the United States Fair Trade Commission's jurisdiction of, and prosecution for, "price-fixing." For the same reasons, there is no established average, usual, or industry standard for the conditional early release of a homeowner from a listing contract. Because no dollar amount for a cancellation fee had been written into Paragraph Nine of the parties’ contract herein, Mr. Van Slyke interpreted Paragraph Nine and Sub- paragraph Six (a) together, to permit Respondent broker the latitude to require payment by the sellers of six percent of Petitioners’/sellers’ asking price as a condition of early termination of the contract upon their unilateral request. Respondent submitted in evidence a similar contract dated March 5, 2007, between Respondent and a different homeowner for the duration of one year (12 months) from that date.2/ Petitioners presented no other contracts between any seller and Respondent or, for that matter, between any seller and any other realtor which specified a duration of less than eight months.3/ It is accepted that a different realtor with whom Petitioners contracted in November 2007, after their eight- month contract with Respondent had expired, filled-in “$500.00” in the equivalent Paragraph Nine, but there was no competent, credible evidence that this replacement realtor, or any other realtor for that matter, had a similar arrangement with any other sellers. Petitioners and Ms. Hobbs agreed that Ms. Hobbs would not submit Petitioners' sellers' contract on their existing home to Respondent until she got an acceptance on their offer as buyers for a new house on Rudolph Court. Accordingly, the listing contract for the Cressida Circle house in which Petitioners were living, and which contained their furniture and photographs, was not submitted to Respondent at least until January 31, 2007. Accordingly, Respondent could not begin attempts to sell Petitioners' existing home until the next day, February 1, 2007. There are 185 realty firms in Hernando County. There are four printed real property advertising booklets which are circulated in Hernando and surrounding counties. Each booklet is published every 30 days. The lead time to get a photographic advertisement of a newly listed property into each publication is three weeks. Before a photo can be published, it has to be made. On or about February 1, 2007, Ms. Hobbs photographed Petitioners’ Cressida Circle house for purposes of advertising it via websites, flyers, real estate advertising booklets, and newspapers, and placed Respondent’s "for sale" sign and lock-box on Petitioners' lawn. Respondent had admitted in evidence the first advertisements she paid for in three printed real estate booklets ("Nature Coast", March 22-April 18, 2007; "Real Estate News", April 2007; and "Sunshine Living", April 2007). Each advertisement contained a photograph and information extolling the Cressida Circle house. Each advertisement correctly quoted Petitioners' asking price of $296,900.00. Additionally, Respondent had admitted in evidence documentation showing that from March 22, 2007, until the end of her exclusive listing on September 30, 2007, she had advertised Petitioners' property repeatedly and/or consistently via newspaper, real estate advertising booklets, and/or Multiple Listing Services (MLS) websites and commercial websites. Both parties agree that Ms. Hobbs' first printed flyer stated an incomplete, and thus incorrect, selling price of "$296,90.", and that this flyer was circulated and/or placed in the lock-box tube on the "for sale" sign about February 1, 2007. (See Finding of Fact 17.) Despite Petitioners' claim that this was "inferior marketing," it is probable that most serious home seekers would have figured out how to correctly read the price as "$296,900.00", or would have asked what price was intended when phoning for an appointment to view the house. While Ms. Hobbs' flyer was never corrected, Respondent Montgomery had other, correct flyers printed, and she placed and circulated those correct flyers for the remainder of the contract period. It is customary for Exit Realty to conduct a "caravan" shortly after a contract is signed. A "caravan" involves Ms. Montgomery and all the salespeople she can round-up in her office. The entire team tours a seller's home, making notes, and then returns to Respondent's office, where a list of repairs and upgrades is compiled with each salesperson's in-put. Then the team brain-storms to develop selling techniques customized to each property listed. On February 7, 2007, the day before Caravan Day, an independent contractor with Exit Realty showed Petitioners' home to a potential buyer. Through Ms. Hobbs, the salesperson relayed to Mr. Smith that the potential buyer had remarked that the house's exterior paint was unacceptable. Mr. Smith told Ms. Hobbs that he would paint the house at his own expense if the potential buyer would make an offer, but no offer was forthcoming. Respondent's caravan viewed Petitioners' home on February 8, 2007. As a result, a list of selling suggestions was relayed by Ms. Hobbs to Mr. Smith. A day or so after Caravan Day, Mr. Smith was told by Ms. Hobbs that to best present and sell Petitioners’ home, Petitioners needed to deal with dirt and dust in an exhaust fan; replace a broken tile in a bathroom, and refinish their swimming pool. Mr. Smith also acknowledged that on the same date, or minimally later, he was told by Ms. Hobbs to remove Petitioners' large family photographs over the sliding doors opening from the house's vaulted-ceiling living room onto its screened patio and pool area. According to Ms. Montgomery, she had advised Ms. Hobbs to relay this information and additional advice, including the information that Petitioners’ house would sell better if Petitioners moved out or reduced the amount of furniture in the living room, so that potential buyers could visualize their own belongings in the room. It was not proven one way or the other whether Ms. Hobbs relayed the "move out" or "remove furniture" suggestions at that time. When Mr. Smith pressed Ms. Hobbs as to why the family photographs had to be removed, she referred him to Ms. Montgomery, who "could better explain." Mr. Smith acknowledged that Ms. Hobbs never said anything about race or discrimination. Mr. Smith testified to three versions of why he concluded that Ms. Montgomery was discriminating against Petitioners on the basis of race: first, because neither Ms. Hobbs nor Ms. Montgomery mentioned the bi-racial family photographs until after Ms. Montgomery had first seen them on Caravan Day, and Ms. Hobbs could not explain to his satisfaction the reason for removing the photographs; second, because Ms. Montgomery did not immediately return his phone calls; and third, because when Ms. Montgomery did return his phone calls, she mentioned the photographs over the sliding doors repeatedly among several other upgrades she encouraged him to accomplish, all of which upgrades Ms. Hobbs apparently had not passed along to him. Ms. Montgomery can suggest and encourage her independent contractors to pass on certain information to sellers and buyers and to pursue sales in certain ways, but she has no way to compel them. Mr. Smith conceded that at no time did Ms. Montgomery ever mention race or make any overt discriminatory statement to him and that she responded to all his letters, even though she did not agree with him in those letters. See, infra. Petitioners also agree that at no time did Ms. Montgomery or anyone associated with Exit Realty suggest that Petitioners remove tastefully framed bi-racial family photographs displayed on a bedroom dresser. Ms. Montgomery credibly testified that successfully "staging" a home for sale usually requires removing as much furniture as possible and all of the personalization, such as awards and photographs hung on the walls of all rooms. Mrs. Smith acknowledged that she was familiar with this concept from print literature and television. Ms. Montgomery demonstrated, using a photograph she had taken of the house without the wall photographs in place, that anything mounted above the living room's sliding glass doors had the potential to draw a shopper's eye away from the luxuriant sweep of the vaulted-ceiling and away from the scope and sweep of the view, through the sliding glass doors, of Petitioners' pool and patio. Petitioners accomplished the three repair suggestions (exhaust fan; tile; and swimming pool) that Ms. Hobbs passed on to them, but they remained in the Cressida Circle house and did not remove their furniture or the photographs above the sliding glass doors. In early March, Petitioners requested a reduction in the six percent commission specified in their Cressida Circle contract with Respondent. Respondent declined to consider reducing her commission until someone made an offer to buy. Petitioners closed on their new home on Rudolph Court on March 30, 2007. The Rudolph Court sale and closing in which Petitioners were buyers, was also handled by Hobbs, Montgomery, and Exit Realty. Petitioners do not claim that any racial discrimination by anybody occurred in the process of buying their new home. Closing on the Rudolph Court house left Petitioners with two houses to maintain and at least two (possibly four) mortgages to pay. Petitioners became concerned that no one had made an offer on their Cressida Circle house. Mr. Smith made several telephone calls to Ms. Montgomery. She did not immediately return those calls. When she did return Mr. Smith's phone calls, Ms. Montgomery explained to him that the Cressida Circle house needed to be "staged" better, including removing furniture and the photographs over the patio doors. Ms. Montgomery wrote Mr. Smith on April 5, 2007, to memorialize all of their April 4, 2007, conversation, giving him clear advice that a “lease/purchase procedure,” as opposed to a “lease/option to buy” arrangement which he had proposed, would be a better and safer solution for his needs. She also advised him that no home in his sub-development had been sold in the last seven months, and emphatically advised him to lower his asking price to $269,900.00, due to the competition of other similar homes for sale. It is undisputed that the parties' contract was signed during a "housing market slump" and that the housing market continued to decline during the entire term of the parties' contract. On April 9, 2007, Mr. Smith wrote Ms. Montgomery, making no reference to race or discrimination, but complaining about Exit Realty Shoppe showing his home only one time, requesting to void their contract, and closing with: If necessary we will follow thru [sic.] with a complaint to the Florida Real-estate [sic.] Commission in Tallahassee. Not unreasonably, Ms. Montgomery regarded Petitioners' foregoing letter as a threat. She responded by registered mail on April 10, 2007, setting out in detail all she had done and describing the costs she had incurred as of that date to sell the Cressida Circle house. She enclosed three printed real estate publications advertising Petitioner's house (see Finding of Fact 18); proof that the home was being advertised with the correct price April 7-13, 2007, in the St. Petersburg Times; proof that she had registered the house with the correct price on the MLS; and proof that the house was being shown in color on Exit Realty's three websites and on Ms. Hobbs' personal website with the correct price. She also reminded Mr. Smith that she had, earlier in the week, suggested that Petitioners reduce their asking price by $30,000.00, to $269,900.00. She also advised him, and included information showing, that as of that writing, there were 11 comparable listings in his sub- development, nine of which were listed at less than Petitioners' asking price. Evidence of all of Respondent's foregoing April 10, 2007, assertions was introduced in evidence by Respondent at the final hearing.4/ Respondent's April 10, 2007, letter also explained "staging," and offered to conditionally release Petitioners from their contract for six percent of their $296,900.00 asking price, as per the contract's Paragraph Six (a). Ms. Montgomery's April 10, 2007, unopened letter and supporting documentation were returned to her by the U.S. Mail as "unclaimed." Because Petitioners were still residing at the Cressida Circle address and because the post office did not mark the envelope "refused," it is probable that Petitioners simply did not go to the post office to sign-for, and pick up, Ms. Montgomery's material. However, Petitioners must have received these items because Ms. Montgomery also had the same materials delivered by messenger to Mrs. Smith’s office. Also, on April 11, 2007, Mr. Smith wrote, acknowledging receipt of Respondent's April 10, 2007, letter, refusing to reduce the asking price, and advising Ms. Montgomery that: I feel that it will be my responsibility to express this dissatisfaction in anyway [sic] I can, to as many people as I can. I will do what ever [sic.] I can do to be released from our agreement. He further threatened to contact "different government agencies" to report what he described as very poor service, but he did not mention race or discrimination. On or about April 19, 2007, Mr. Smith filed a complaint against Respondent dated April 16, 2007, with the local Better Business Bureau (BBB). His complaint alleged lack of service. Nowhere in his complaint is race or discrimination mentioned. The material in evidence shows that the BBB contacted Ms. Montgomery about the complaint, but marked it "information only," and did not pursue it at that time.5/ In early April 2007, Mr. Smith telephoned Ed Carr, Executive Director of the Hernando County Association of Realtors (HCAR). Mr. Smith said nothing to Mr. Carr about racial discrimination at that point, but said only that he wanted to get out of the listing contract with Respondent. On or about April 23, 2007, Petitioners filed a formal complaint with HCAR. HCAR's Grievance Committee met May 7, 2007, and, apparently in the mode of a probable cause panel, referred the case for a full evidentiary hearing. On June 29, 2007, the case was first noticed for hearing by HCAR. Petitioners’ HCAR complaint is not in evidence, and the evidence herein falls short of enabling the undersigned to determine whether the complaint before HCAR involved racial discrimination. However, it is certain that Ms. Montgomery perceived it that way. The HCAR hearing was first scheduled to occur August 28, 2007, but it was re-scheduled. The actual date the hearing took place and the date HCAR issued its decision are not clear in this record, but the hearing was on or after October 23, 2007. Mr. Van Slyke presided over the HCAR hearing. The HCAR decision resulted in a determination that Respondent had not violated professional real estate ethics. Despite Petitioners’ expressed dissatisfaction with HCAR's result and their claims that HCAR’s panel was prejudiced in Respondent's favor and that Respondent manipulated timing of the hearing, the HCAR process, and its deciding body, there is no competent, credible, or compelling evidence herein demonstrating the validity of such accusations or demonstrating that HCAR’s decision in Respondent’s favor was based on racial discrimination or constituted a cover-up for racial discrimination. That said, HCAR's decision is not binding here. Ms. Montgomery testified credibly that she had refused to acquiesce in any overt action, such as voluntarily letting Petitioners out of their contract without paying her commission, because to do so might make her appear to be prejudiced. Even more credible is her testimony that she did not want to let Petitioners out of their listing contract unless they paid her commission and costs, as provided in the contract, because she had already expended considerable time and money on Petitioners' behalf. Respondent continued to advertise the Cressida Circle house until the end of the eight-month contract (see Findings of Fact 19 and 40), despite Petitioners’ refusal to allow Respondent to reduce the asking price. Unfortunately, between June 14, and July 1, 2007, Respondent advertised an incorrect and lower asking price of $269,900.000, in "Nature Coast." Respondent did not know how the error occurred. The advertising for this two-week period was, as always, at Respondent's expense, and the asking price was corrected in the next issue. While signed-up with Respondent, Mrs. Smith took material prepared by Respondent for marketing the Cressida Circle property, made minor adjustments to it, and placed it on her own and others' websites. The material she posted sometimes carried Ms. Hobbs' contact information. Other times, Mrs. Smith's internet advertisements showed a reduced price for contacting Petitioners. This placed Petitioners in direct competition with Respondent's advertisements in which Petitioners required that Respondent maintain the original $296,900.00, asking price. In so-doing, Petitioners may have offended a clause of the listing contract. In placing this information on MLS websites outside of Respondent’s general geographic area, Petitioners may have exposed Respondent to liability in the professional real estate community. Respondent advised Petitioners of these problems, but there is no clear evidence that Respondent intervened to prevent Petitioners' behavior. Petitioners moved into their new, Rudolph Court house in early June 2007. When they moved, their furniture and photographs went with them. Photographic evidence shows that Petitioners allowed the Cressida Circle house to deteriorate after they moved to Rudolph Court, thereby rendering the sale property less desirable to potential buyers. Petitioners each testified credibly that between January 31, 2007, and the time they moved out, probably about June 6, 2007, Respondent gave them no advance notices that a potential buyer was coming to view the Cressida Circle house, as had been agreed upon when the house was listed. The sign-in sheet left in Petitioners’ sale house demonstrated that Exit Realty showed the house once, on August 21, 2007. Petitioners acknowledged that the home was also shown another time on the day before Caravan Day. (See Finding of Fact 22.) Respondent produced her lock-box's recorded printout showing that on February 1, 2007, Ms. Hobbs entered the house. (See Finding of Fact 17.) It shows also that Ms Hobbs entered again on June 7, 2007. On July 17, a ReMax salesman entered. On July 27, Respondent entered. On July 31, an ERA saleswoman entered. On August 10, and 11, Respondent entered. On August 21, another Exit Realty saleswoman entered. (See Finding of Fact 55.) On September 20, Clara Ward, an independent contractor with Exit Realty entered. (See Finding of Fact 58.) On October 4, 2007, Ms. Hobbs entered. Respondent acknowledged that on one or two of the foregoing occasions, she entered the sale house, not to show the property to prospective buyers, but to take photographs for the HCAR hearing (see Finding of Fact 47), but there is no credible evidence to support Petitioners' conjecture that the other visits by Ms. Montgomery and by all other real estate salespersons were not for the purposes of showing the house or for some other legitimate sales purpose. Clara Ward testified that she showed the house to a legitimate potential buyer about a month before Respondent's listing ended, and again in approximately December 2007, after Petitioners had listed it with another realtor at the reduced price of $256,900.00. Mr. Smith admitted that he never asked Ms. Hobbs for an "open house," until June 2007. The contract does not require an "open house." Ms. Montgomery testified credibly and without refutation that she did not schedule an "open house" for Petitioners because, in the past, "open houses" have not resulted in sales for her. She rarely, if ever, utilizes them for any property. Mr. Smith admitted that Petitioners had no evidence to support their allegation that every other home that Exit Realty signed in the same period was shown more than once. Petitioners also presented no evidence that every other home, besides the Cressida Circle home, which Exit Realty signed in the same period held even one open house.6/ In November 2007, Petitioners signed with another realtor who marketed the house at $269,900.00, which was $27,000.00 less than the only figure at which Petitioners would permit Respondent to market the house. If and when there was a sale is unclear.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and the Petition for Relief. DONE AND ENTERED this 19th day of September, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 19th day of September, 2008.
Findings Of Fact The Respondent, Steven Hall, at all times pertinent hereto, was a licensed real estate salesman and broker. Upon February 15, 1984, he became licensed as a broker. The Respondent was registered with and employed by J. Arnold Ausley Realty from March 31, 1983 to February 15, 1984. J. Arnold Ausley was a licensed real estate broker and operated as Ausley Properties during times pertinent hereto. The Petitioner is an agency of the State of Florida charged with regulating the licensure and practice of realtors in the State of Florida and enforcing the practice standards for realtors embodied in Chapter 475, Florida Statutes. On February 4, 1984, the Respondent, in his capacity as a licensed salesman for Ausley Properties, arranged a contract between Champak Bhoja and Kishor Patel, as purchasers of a certain piece of real estate owned by one John D. Gilbert. In connection with that contract the Respondent obtained a $2,000 check as a deposit from Mr. Patel. At Mr. Patel's request the Respondent held this check without negotiating it awaiting Patel's instruction that sufficient funds were on deposit to honor the check. The Respondent waited four weeks and received no such instructions from Mr. Patel. The Respondent therefore contacted Patel, who was in Nebraska at the time, to tell him that he felt legally obligated to deposit the check. The check was deposited and was returned for insufficient funds. On March 19, 1984, Mr. Patel gave the Respondent a replacement check in the amount of $2,000. Mr. Hall asked Mr. Patel to make the check out to him since he had in the meantime become a broker and wanted credit for this transaction in his own business. He also informed Mr. Patel that he would need to use the money for his own personal expenses, in the nature of a "loan." Mr. Patel, however, made the check out to the "Ausley Properties Escrow Account." The Respondent and Mr. Patel had been involved in other business ventures together during the course of which Mr. Patel had already lent the Respondent, on different occasions, a total of approximately $4,000. This course of dealing was continued in the present instance, from the Respondent's viewpoint, when the Respondent informed Mr. Patel that he needed the $2,000 for personal expense purposes and would pay it back as a loan. He believed Mr. Patel assented to that arrangement at the time. The sales contract at issue ultimately failed to be consummated due to Mr. Pate1 and Mr. Bhoja not meeting the required contingency regarding debt financing. Approximately fifteen days after the contract's closing date passed, Mr. Patel made a demand upon the Respondent for the return of the $2,000 deposit. The Respondent failed to return it at that time but assured Mr. Patel that he would repay the money and needed more time to obtain the necessary funds. The Respondent had not deposited the check in the Ausley Properties Escrow Account because such an account did not exist, although the Respondent had urged Mr. Ausley on a number of occasions to set up such an account. The Respondent rather cashed the $2,000 check and used the proceeds for his own benefit, as he had informed Patel he would do. He used the money to meet certain operating expenses and personal expenses, being in severe financial straits at the time. Pate1 knew he was experiencing financial difficulties and had lent him the previously mentioned $4,000 to help him with operating expenses and personal expenses during the pendency of the closing of their various other real estate ventures. The Respondent informed Patel he would use the subject $2,000 for similar purposes, however, the record does not clearly reflect that Patel consented to this, as opposed to his intent that the money be placed in an account as his deposit of consideration for the contract. His testimony to this latter effect is borne out by the fact that in spite of the Respondent's request that the check be made out to him personally, instead Patel made it out to the "Ausley Properties Escrow Account." That account did not exist but the method of drafting the check reveals his intent that the money was to be used as a deposit. In any event the Respondent made no misrepresentation to Mr. Patel as to what he intended to do with the money, but at the same time he did not deposit it in an appropriate account to be held as a deposit toward the purchase of the property involved in the sales contract. Patel made numerous demands for the money and each time Respondent acknowledged this and the other debt to Patel and promised to pay. He ultimately began paying back a small portion of the indebtedness to each of his creditors starting out at a rate of $10 per month. Ultimately, the Respondent paid the entire $2,000 predicated on receipt of his 1985 income tax return.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a final order be entered by the Petitioner finding that the Respondent has violated Section 475.25(1)(b),(d,)(e) and (k) only to the extent delineated in the above conclusions of law and that his real estate broker's license be subjected to a six months suspension. DONE and ORDERED this 1st day of August, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1986. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Steven R. Hall 8880 Old Kings Hwy., Apt. 30-W Jacksonville, Florida 32217 Michael Sheahan, Esquire Two South Orange Avenue Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Rea1 Estate Commission 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32802 APPENDIX Petitioner's Proposed Findings of Fact: Accepted Accepted Accepted Accepted Accepted Accepted Rejected, although the evidence establishes that Patel intended the funds to be escrowed. Accepted Accepted Accepted Accepted Accepted Accepted Accepted Rejected as not comporting with the charges in the Administrative Complaint. Respondent's Proposed Findings of Fact:* Accepted Accepted Accepted Accepted Accepted, but irrelevant to the charges. Accepted Accepted Accepted as to the first sentence only. The second sentence concerning Patel's response is not clearly supported by record evidence. Accepted Accepted Accepted * Although Respondent is proposed findings are accepted, some are inculpatory, some are not material and some support the conclusion that no fraudulent conduct was committed.
Findings Of Fact Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11). Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of February, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William Grossbard, Esquire Suite 6175M 6191 Southwest 45 Street 6177 North Davie, Florida 33314 Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C 1125 Northeast 125 Street North Miami, Florida 33161 Lawrence J. Spiegel, Esquire Spiegel and Abramowitz Suite 380 First National Bank Building 900 West 49th Street Hialeah, Florida 33012 Mr. Gary Lee Sexsmith 321 Southwest 70t Avenue Pembroke Pines, Florida 33023 Mr. Guiseppe D. Bellitto 2635 McKinley Street Hollywood, Florida 33020 Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and Trustee of Select Realty, Inc. 321 Southwest 70th Avenue Pembroke Pines, Florida 33023 Mr. Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact In November and December, 1974 John T. Halkowich was a registered real estate salesman with the brokerage office of Ayers F. Egan. Exhibit 2, Return Receipt for Registered Mail, was admitted into evidence to show that Halkowich acknowledged receipt of the Notice of Hearing. When Halkowich applied for registration as a real estate salesman, Egan was one of his sponsors. Upon his successful completion of the requirements for registration Egan agreed to hold Halkowich's license for him in Egan's office, but because business was slow he could not allow Halkowich any floor days. He agreed to allow him to sit on houses that neither Egan nor Egan's associate wanted to hold open. During the period of 1974, when little real estate was selling on the Florida Keys, the housing development project owned by Vogler and Snowman was running on hard tines and the developers were anxious to "get out from under" the property. John Vogler, Jr., the father of the Vogler partner in the project, went to Egan to seek help with the sales. Since Egan had no work for Halkowich he suggested that perhaps the developers could make a deal with Halkowich. The developers needed someone on the property at all times to act as watchman, show prospective buyers around, keep the grass trimmed, and supervise the completion of the project. Halkowich was provided an apartent on the site to live in, complete with utilities, in consideration for performing those services. For each unit of the project that was sold the developers agreed to pay Halkowich $2,000. One of the purchasers who appeared at the hearing had stopped by the development, was shown around by Halkowich, and thereafter made an offer directly to the developers to purchase a unit. A contract was subsequently executed between the developers and the buyer and referred to the developers' attorney who performed the closing. After the closing Halkowich was paid $2,000. When Egan learned that sales had been made and that Halkowich had received compensation from the developers he demanded his commission from Halkowich. When the latter advised Egan he couldn't pay him Egan told him he was in violation of the real estate license law and that he, Egan, would report him to the Florida Real Estate Commission if he didn't pay. Thereafter Egan piously reported Halkowich's transgressions to the Commission and this Administrative Complaint ultimately followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the real estate license of Keith Allen. DONE and ORDERED this 2nd day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Allan M. Parvey, Esquire Goldberg, Rubinstein & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902
Findings Of Fact Respondent Gene Lawrence (Lawrence) is president of Respondent Home Owner's Equity Fund, Inc. (Homeowners) and has been for six years. He is not licensed as a real estate broker or salesperson in Florida and has not been so since 1987 or 1988. He has never worked actively in the real estate business. At no time has Homeowners ever employed a licensed real estate broker, nor was it itself licensed to engage in real estate brokerage activities. Homeowners was formed in 1986 or 1988. Lawrence is the sole owner of Homeowners. From December 1986 through December 1993, Homeowners engaged in business involving the purchase and sale of single-family homes, employing from 1-3 employees in its principal place of business in Ft. Myers. In general, Homeowners purchased homes and sold them to buyers, receiving installment payments for the purchase price. In most cases, Homeowners used contracts for deed or sometimes a lease-purchase arrangement. Homeowners located buyers through newspaper advertising. The advertisements stated that a person could own his own home instead of paying rent for about the same monthly payment. Advertisements, mostly in a shopper- type newspaper, ran almost continuously. One of Homeowner's ads, under the "For Sale by Owner" category, states: HAVE YOU HAD TROUBLE GETTING A MORTGAGE? CAN YOU AFFORD $500 OR MORE PER MONTH? WE CAN PUT YOU IN A HOME OF YOUR CHOICE! INVESTORS WILL BUY THE HOME & HOLD THE MORTGAGE. NO QUALIFYING. 332-0043 Another Homeowner ad, under rental properties, states: WOULD YOU RATHER OWN THAN RENT? FOR THE SAME MONTHLY PAYMENTS AND DEPOSIT YOU CAN PURCHASE YOUR OWN HOME! VARIOUS PRICES - SIZES - AREAS. NO BANKS, NO CREDIT CHECKS, NO HASSLES. CALL 332-0053 TODAY!! After meeting a customer in the office, Lawrence or another employee of Homeowners would determine if the customer's desires were reasonable. If so, the customer's profile, including needs and ability to pay, would be filed. If the customer was interested in obtaining the services of Homeowners, the customer had to pay a fee at the initial meeting. The fee was usually $125. The service provided by Homeowners was to offer to sell to the customer homes that it already owned or, more often, homes that it was willing to purchase. If the customer became interested in a house that Homeowners was unwilling to purchase, Homeowners would not assist the customer in any way. Following the initial visit, Homeowners would give the customer a list of homes that Homeowners was considering buying. At the same time, Homeowners did a credit check on the customer. The fee paid by the customer entitled him to these services from Homeowners for 120 days. Homeowners typically purchased homes with seller- provided financing, usually with a low down payment. The homes were of a price that Respondents' customers could afford, given their modest means. The price range was typically $50,000 to $60,000. In Lee County, where Respondents focused their efforts, a house in that range might have two or three bedrooms. If the customer purchased a home from Homeowners, it would credit his fee against his first month's payment. Otherwise, the fee was nonrefundable. When Homeowners purchased a home, Lawrence typically handled the negotiations with the listing agent. Lawrence or one of Homeowners' employees then negotiated the sale to the customer. On November 15, 1991, Curtis McRee gave Lawrence a $750 down payment on a mobile home and lot in N. Ft. Myers. At the same time, he and his wife, Lynda L. McRee entered into a contract for deed with Homeowners under which Homeowners would convey "by a good and sufficient deed" fee simple title, clear of all encumbrances, if the McRees paid an additional $24,250 with interest at an annual rate of 10.5 percent through monthly payments of $386. At this rate, 92 monthly payments would be required to satisfy the obligation. The contract for deed involves a mobile home lot, but omits any mention of a mobile home. On the same date, Respondents acquired the same property from a third party. The purchase money mortgage note was for $19,750, bearing interest at the annual rate of 10 percent, and payable by 84 monthly payments of $327.87. When the McRees missed some payments, Respondents failed to make payments to their mortgagee, which foreclosed on the mortgage and retook title to the property. On May 18, 1992, Homeowners acquired three lots from a third party for $30,319.80. On the same date, Homeowners entered into a contract for deed with Delfino and Candelaria Lopez under which Homeowners would convey fee simple title to the three lots, free of all encumbrances, by a "good and sufficient deed," if they paid $39,950 at 10.5 percent annually by monthly payments of between $375 and $396. On May 25, 1992, Laura A. Ortiz paid Homeowners a fee of $120. The receipt form states that Ms. Ortiz acknowledges that the fee "is collected in advance from clients interested in purchasing residential property, owned, or to be owned by [Homeowners]." The form adds that, during the next 120 days, Homeowners will offer Ms. Ortiz homes with monthly payments of less than $500 and Homeowners will offer owner financing at 10.5 percent annually. The form concludes by noting that the fee is nonrefundable, but will be credited toward the first monthly payment. On June 25, 1990, Homeowners acknowledged receipt from Ms. Ortiz of $500 as an "escrow deposit" for property located at 15779 Treasure Island. It is unclear whether Homeowners had a contract with the owner of 15779 Treasure Island when Homeowners accepted Ms. Ortiz's $500 escrow deposit. However, a dispute developed between Homeowners and the owner over liability to repair a roof, and Homeowners could not offer the property to Ms. Ortiz, who instead rented another property owned by Homeowners at a monthly rental of $500. Based on Lawrence's affidavit, Ms. Ortiz paid Homeowners a deposit of $4000, of which only $3500 was refunded when the deal fell through. The $500 withheld was to pay rent that Ms. Ortiz owed. On April 19, 1993, Rosa Saez paid Homeowners the $125 fee and entered into a receipt form of the type described above. Ms. Saez found a house that she liked and paid Homeowners a deposit of $1000. When some problem arose preventing Homeowners from purchasing the property that she wanted, Lawrence returned the $1000 deposit by giving Ms. Saez a personal check dated July 8, 1993. There is no evidence connecting Humberto Zabala or Sandra Aparicio to Homeowners or Lawrence. In December 1993, Homeowners stopped operating due to the pending disciplinary investigation and poor health of Lawrence. In March 1994, Lawrence began operating a similar type of business in his own name. He claims that he is not a broker and does not need to be licensed because he does not put buyers and sellers together nor does he charge a commission. Lawrence claims to sell only the homes that he owns and does so as a "social service for people," which he has continued to offer, despite doing no better than breaking even, due to a "dogged determination, a perseverance, perseverance and tenacity."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Counts IX and X of the Administrative Complaint, finding each Respondent guilty of four counts of engaging in real estate brokerage activities without a license, and imposing an administrative fine of $5000 against Gene Lawrence and $5000 against Home Owners Equity Fund, Inc. ENTERED on August 24, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on August 24, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence. Typically, Homeowners did not acquire the real property until a customer had expressed interest in the property. 5: adopted or adopted in substance. 6-8: rejected as unsupported by the appropriate weight of the evidence. 9-11: adopted or adopted in substance. 12: rejected as unsupported by the appropriate weight of the evidence. 13-14: adopted or adopted in substance. 15: rejected as irrelevant. 16-18: adopted or adopted in substance. 19: rejected as unsupported by the appropriate weight of the evidence. 20-21: rejected as irrelevant. COPIES FURNISHED: Attorney Theodore R. Gay Department of Business and Professional Regulation 401 NW 2nd Ave. Suite N-607 Miami, FL 33128 Harry Blair Blair & Blair 2138-40 Hoople St. Ft. Myers, FL 33901 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
