The Issue Did Frederick Anthony III, Inc., employ persons who were not licensed? Did Benjamin Foster have knowledge that these individuals were employed? Was Benjamin Foster responsible for the employment of unlicensed individuals? Was Benjamin Foster liable for Anthony John Bascone's actions as a real estate salesman? Did Benjamin Foster violate Sections 475.42(1)(c) and 475.25(1)(a), Florida Statutes?
Findings Of Fact Notice of the formal hearing was given to all parties as required by the statutes and rules. Benjamin C. Foster is a real estate broker holding License No. 0151634 issued by the Board of Real Estate. Frederick Anthony III, Inc. (FA III), is a Florida corporate real estate broker holding License No. 0215470 issued by the Board. Foster was the active firm member of the corporation. Donald McDonald and Delores McDonald were employed by FA III. While so employed, both of these persons engaged in the sale of real estate. Neither Delores McDonald nor Donald McDonald were licensed at the times in question. Foster agreed to be the active firm member for FA III because Anthony John Bascone and Frederick Hall, a real estate salesman, wanted to start a brokerage firm. Bascone and Hall had business connections with whom Foster wanted to affiliate, and Foster concluded that his function as active firm member with FA III would lead to business opportunities for FA III and for Foster's other real estate business. Bascone and Hall were corporate officers of FA III and managed the day-to-day activities of the office. They hired Donald and Delores McDonald as salespersons. Foster never met Delores McDonald and did not employ her. Foster met with Donald McDonald, Delores McDonald's husband, who said he was selling real estate at that time. Foster sent Donald McDonald to Bascone and Hall to be interviewed. Under Foster's agreement with Bascone and Hall, they would make the initial hiring determinations for their sales personnel and Foster would process the personnel as salespersons affiliated with the company. According to Foster's agreement with Bascone, Bascone would not engage in real estate sales until after he was license. Bascone was seeking a brokerage license, and it was their intent that Bascone would become the active firm member. The allegations involving Bascone's acting as a real estate professional were based on a transaction which was undisclosed to Hall or Foster until after the fact. This transaction involved the payment of a commission directly to Bascone by the seller which was unreported to Foster or Hall. Foster did not exercise close supervision over the activities of FA III.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of Benjamin C. Foster be suspended for three months, and that the license of Frederick Anthony III, Inc., be revoked. DONE and ORDERED this 3rd day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire 2701 Cleveland Avenue, Suite 10 Post Office Box 729 Fort Myers, Florida 33902 Mr. Benjamin C. Foster 5354 Emily Drive, Southwest Fort Myers, Florida 33908 Frederick Anthony III, Inc. 3920 Orange Grove Boulevard North Fort Myers, Florida 33903 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated Section 475.42(1)(a), Florida Statutes (1995), by operating as a real estate broker without a license and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is the president of Lenox Investments & Development, Inc. ("Lenox"). Lenox shares office space with Lenox Realty Corporation ("Lenox Realty"). Mr. Richard Fess is the qualifying and managing broker for Lenox Realty. Mr. Carlos Hofle is Respondent's brother, a licensed real estate agent, and an employee of Lenox Realty. Respondent is not licensed to practice real estate and is not an employee of Lenox Realty. In 1993, Respondent practiced real estate without a license by renting and negotiating the sale of a home owned by Herman and Mae Agnes Scott (the "Scotts"). Mr. Scott built the home himself approximately 20 years ago. In November, 1993, Mr. Scott became fatally ill. The Scotts were unable to make the mortgage payments on their home. They were six months in arrears in their mortgage payments. Crown Bank, the mortgagee, began foreclosure proceedings. The Scotts approached Respondent to assist them in avoiding foreclosure through a mortgage assistance program promoted by Lenox. Respondent represented verbally, in the functions he performed, and in the capacity for which he signed relevant documents, that he was a licensed real estate agent. He and the Scotts met and discussed the pending foreclosure proceeding. Respondent advised the Scotts that they should sell their house. Respondent represented that he would obtain a tenant who would purchase the house. The Scotts were in a desperate financial situation and needed cash. Respondent loaned the Scotts $2,000. The loan included a personal loan of $1,250 to the Scotts and a $750 mortgage assistance fee for Respondent. On November 10, 1993, the Scotts executed a management agreement with Lenox. Respondent negotiated and signed the management agreement. The management agreement required Respondent to advertise and show the rental property, pre-qualify the tenant, negotiate the lease, and perform repairs and maintenance. The Scotts were to pay Respondent 12 percent of the gross rent, plus one month's rent, and $750 for a mortgage assistance program to avoid foreclosure. All of the rent earned on the property went to Respondent until the $1,250 loan and $750 mortgage assistance fee were paid. On November 10, 1993, Respondent solicited and obtained an Exclusive Right of Sale Listing Contract from the Scotts on behalf of Lenox Realty. Respondent obtained a tenant who Respondent represented would purchase the Scotts' house. Respondent collected $1,400 from the tenant. None of the rent was paid to avoid or work out the foreclosure. The mortgagee foreclosed on the Scotts' house. They lost their home, their equity, and their credit. Respondent never worked for Lenox Realty. Lenox Realty never authorized Respondent to obtain listing agreements or management agreements on behalf of Lenox Realty. Neither Lenox Realty nor Mr. Fess agreed to list the Scotts' home for sale. Neither authorized Respondent to do so. Mr. Fess never signed the listing agreement with the Scotts. The Scotts dealt only with Respondent. They did not know that Respondent was not licensed. The Scotts never dealt with anyone who was a licensed real estate agent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 475.42(1)(a) and imposing an administrative penalty of $5,000. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY 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 28th day of April, 1997. COPIES FURNISHED: Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Edward A. Kerben, Esquire 725 North Magnolia Avenue Orlando, Florida 32803
The Issue Whether Respondents' licenses as real estate brokers should be suspended or revoked, or the licensees otherwise disciplined, for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated September 28, 1981. This proceeding is based on an administrative complaint filed by Petitioner, Board of Real Estate, alleging that Respondents, while engaged in a rental service business which advertised and sold rental property information or lists, for an advance fee to prospective lessees, utilized a contract or receipt agreement which included language defining when a "rental has been obtained" that was contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and that therefore Respondents had violated Subsection 475.453 and 475.25(1)(b), Florida Statutes. It further alleged that Respondents failed to refund 75 percent of an advance fee to specific prospective tenants as required by Subsection 475.25(1)(e), Florida Statutes and therefore constituted a violation of Subsection 475.25(1)(d), Florida Statutes. At the commencement of the hearing, the parties submitted a Proposed Stipulation of facts which was accepted by the Hearing Officer and constitutes the Findings of Fact hereinafter. No witnesses testified at the proceeding nor were any exhibits entered in evidence other than the four exhibits attached to the Stipulation. (Exhibit 1)
Findings Of Fact Respondent Jack Braunstein is a licensed real estate broker having been issued license number 0146924. The last known address of this Respondent is 916 North Federal Highway, Fort Lauderdale, Florida 33304. Respondent Rent Aid, Inc., is a licensed corporate real estate broker having been issued license number 0133234. The last known main office address of Rent Aid, Inc., is 916 North Federal Highway, Fort Lauderdale, Florida 33304. At all times material herein Respondent Braunstein was the sole active broker of and for Respondent Rent Aid, Inc., doing business at the corporate main office located in Fort Lauderdale, Florida. As said active broker, Braunstein was responsible and liable for the acts and/or omissions of the associates of Rent Aid, Inc. performed in the scope of their employment; and was responsible and liable for the acts and/or omissions of Rent Aid, Inc. At all times material herein, Respondent Rent Aid, Inc., was engaged in a full service real estate brokerage business which included representing potential buyers and sellers of real property and potential landlords and tenants with regard to rental properties. As part of the business Rent Aid, Inc. entered into contracts with prospective tenants for an advanced fee, as shown by Exhibit "A" to the Complaint and incorporated herein by reference. That the contract or receipt agreement forms provided by the Respondents, have inserted therein additional language as to specifically stating that "a rental has been obtained when company provides a guaranteed available rental unit upon the terms specified and requested by member. On or about September 16, 1980 Jan Spear and Deborah Nigro entered into the contract, an accurate copy of which is appended to the Complaint as Exhibit "A", with Rent Aid, Inc. That under the terms of the contract, Respondent had the discretion to refuse any and all refunds if they had shown to the prospective tenant an available rental unit which met the terms specified and requested by the prospective tenant, even if the prospective tenant declined to rent said unit and demanded a refund of the paid fee within the required time frame. That Respondent's practice was to refuse demands for refund made where, in Respondent's opinion, a bona fide effort had been made to obtain a rental, which efforts had been unsuccessful through no fault of Respondent's. Jan Spear and Deborah Negro made written demand upon Respondent's for a partial refund of the fifty ($50) fee which they had paid Respondent's pursuant to the contract. This demand was made within thirty days of the contract date as shown by therefund refusal dated October 12, 1980, attached to the Complaint as Exhibit "B" and incorporated herein by reference as true and accurate. The contract utilized by Respondent's does not strictly conform to the refund required by Rule 21V-10,30 in that the conditions under which a refund would be payable are restricted beyond the scope of said Rule, and SS 475.453(1), Florida Statutes. Respondent utilized the Contract form in question in reliance upon advice received from his prior counsel, Gregory Jones, as shown by a letter dated April 1, 1980. A true and accurate copy of which is attached hereto as Exhibit "C". Sal Carpino, attorney for the Department of Professional Regulation, had been provided with a copy of the form utilized by Respondent and had approved the format of said form without approving a discrepancy of the language in question in this proceeding, to wit: "a rental has been obtained with company (Rent Aid, Inc.) provides a guaranteed available rental unit upon the terms specified and requested by members." In response to this proceeding, Respondent has made full and complete refund to Jan Spears and Deborah Nigro and has agreed to voluntarily stop all use of the Contract form in question, and use only such a form as strictly complies with 475.453(1) and Rule 210-10.30 and to furnish a copy of said form to the Department conformance with said Rule."
Recommendation That the Board of Real Estate issue a private reprimand and impose a $100 fine against Respondents Jack Braunstein and Rent Aid, Inc. for violation of Subsections 475.25(1)(d) and (e), Florida Statutes. DONE AND ENTERED this day of March, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 5th day of March, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 John P. Gaudiosi, Esquire 3801 North Federal Highway Pompano Beach, Florida 33064 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C.B. Stafford, Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact The Respondent, Joseph J. Kowitt, is now a licensed real estate broker-salesman, having been issued License No. 0048987. At all times pertinent to this proceeding the Respondent was registered and licensed by the Florida Real Estate Commission or the Board of Real Estate, respectively, as a non- active real estate broker. The Respondent's registration certificate bore an effective date of October 1, 1978 and an expiration date of September 30, 1980. Some time prior to October 9, 1979, Mrs. Frieda Frank of Silver Spring, Maryland, was contacted by Mr. Douglas Bradshaw, a broker-salesman in the employ of Powis Properties, Inc., a corporate real estate broker of Boca Raton, Florida, to ascertain her interest in selling two unimproved lots in Palm Beach County, Florida. Mrs. Frank, the owner of the property, indicated to Mr. Bradshaw that he should coordinate activities involved in effecting a sale through her cousin, the Respondent. Mrs. Frank had previously instructed the Respondent to attempt to sell the two lots for her for a certain minimum price. The Respondent was contacted by Mr. Bradshaw either shortly before or shortly after he contacted the seller of the property, Mrs. Frank, but after the Respondent had placed signs on the property indicating it to be for sale by the owner, with the Respondent's telephone number depicted thereon. Upon being contacted by Mr. Bradshaw or Powis Properties, Inc., the Respondent explained that he was not the owner of the property, but that he represented his cousin, Mrs. Frank, who lived in Maryland. The result of the conversation was that the Respondent agreed to give Mr. Bradshaw an "open listing" and the Respondent requested that he be reimbursed for any expenses born personally in preparing for and effecting a sale, indicating that this was his cousin's wish also. There is no evidence to reflect the precise amount of expenses incurred by the Respondent in attempting to sell his cousin's property, his testimony simply consisting of statements to the effect that he had erected four or five signs on the property during the course of the year preceding the sale and had incurred gasoline expenses traveling between the property in Palm Beach County and his home in north Dade County. On approximately October 9, 1979 Powis Properties, Inc. secured an offer to purchase the subject property in the amount of $27,000 and communicated that offer to the seller. She indicated to Mr. Kowitt that a $30,000 sales price would be acceptable, including a 10 percent brokerage fee for Powis Properties who had secured the prospective buyer. At approximately this point in time an agreement was reached between Mr. Kowitt, the Respondent, and Powis Properties, Inc. whereby Mr. Kowitt would receive $500 for his services rendered in effecting the sale and which would he paid to him at the closing of the sale of the two subject lots. This arrangement is reflected in the Respondent's own Exhibit 2, although the Respondent maintained the fee arrangement agreed upon was merely for reimbursement of his expenses incurred in preparing the property for sale and was not a referral fee, as Mr. Stingene of Powis Properties had represented in the letter which is Exhibit Two. The Respondent, however, in the face of the Petitioner's showing that a flat fee of $500 was paid with the understanding of the Petitioner's chief witness that it was for a referral or for "services rendered," offered no concrete evidence to establish what his alleged expense items consisted of nor their respective amounts. A purchase offer was redrawn at the required price of $30,000 in accordance with the seller's wishes and accepted by the seller. The transaction proceeded to closing on October 28, 1980. Approximately three days prior to the closing date, Powis Properties, Inc. inquired of the Registration Division of the Board of Real Estate regarding the status of Mr. Kowitt's registration as a realtor and was informed that he held an inactive status at that time. Powis Properties, Inc. communicated this information to Mr. Kowitt who indicated that his registration renewal application was in process and apparently such was not yet reflected in the records of the Board of Real Estate. Powis Properties, through Mr. Powis or Mr. Stingene, then requested that he evidence his valid registration at the closing in order to receive the subject $500 fee. Powis Properties then drew a check of $500 payable to Mr. Kowitt and authorized its sales agent who would be present at the closing to deliver the check to Mr. Kowitt upon his establishing proof of his registration or otherwise inform him that the fee would have to be held in escrow until he could establish the fact of his active registration. At the closing Mr. Kowitt delivered to the salesman representative of Powis Properties, Inc. a photocopy of registration Certificate No. 0048987 indicating on its face the status of "active broker" and based upon that representation, the sales agent delivered to Mr. Kowitt the $500 check which he later negotiated. Petitioner's Exhibit 7, which was unrefuted, reveals that the Respondent held Certificate No. 0048987 which is a non-active broker's certificate issued October 21, 1976 with an expiration date of September 30, 1980. Petitioner's Exhibit 8 was not contradicted and reveals that the Respondent applied for a renewal as a broker-salesman on October 27, 1979, the day prior to the subject closing. After amending his application to that for a broker-salesman certificate, since he did not maintain an office, a broker- salesman certificate was issued to the Respondent with an effective date of November 6, 1979, although with a date of issuance of December 20, 1979 (Exhibit 9). The dates reflected on Exhibit 9 corroborate the Petitioner's showing (in Exhibit 5) that it is the policy of the Board that a registration certificate reflect the effective date to be the date the request was received by the Board in proper form, as opposed to the date of mailing. At the closing the Respondent represented that he was an active broker by the display of a xerox copy of his registration certificate with the above number and expiration date of September 30, 1980. Be acknowledges and admits that he altered the copy of the certificate to remove the prefix "non" from his ostensible designation as an active broker, but the Respondent contends that he informed the representative of Powis Properties at the closing that he had been assured by "someone" with the Board of Real Estate that he could consider himself an active broker upon posting of his renewal application and fee. Shortly after the closing, Mr. Powis or his agent examined the ostensible broker certificate copy supplied them by the Respondent. Upon the belief that the copy of the broker certificate was irregular when compared to other broker certificates which simply state "broker" rather than "active broker" (as the subject one did after the alteration) inquiry was made by phone to the Registration Division of the Board regarding the Respondent's true status. The Board informed Powis Properties that Mr. Kowitt at that time continued to be a non-active broker. Powis Properties then immediately notified Mr. Kowitt of the circumstances and made demand that he return the $500 fee. After a period of days or weeks had elapsed without satisfactory response from Mr. Kowitt, the subject complaint initiating these proceedings was filed by Powis Properties with the Board of Real Estate. Finally, a meeting was held on November 19th between the Respondent and Powis Properties or its agent or representative, at which time the Respondent could not yet supply concrete evidence of his registration as an active broker or broker-salesman, although the application for active status remained pending. Thus, Powis Properties, Inc. continued to maintain its claim against the Respondent for return of the $500 fee and the Petitioner initiated these proceedings.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, as well as the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Joseph J. Kowitt, be found guilty of a violation of Section 475.25(1)(b) Florida Statutes (1979), as well as Section 475.42(1)(a), Florida Statutes (1979), and that the penalty of a public written reprimand be imposed on the Respondent. DONE AND ENTERED this 18th day of May, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18ths day of May, 1981. COPIES FURNISHED: Ralph Fetner, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph J. Kowitt 2030 South Ocean Drive Apartment No. 1227 Hallandale, Florida 33009
Findings Of Fact At all times relevant thereto, Respondent, Oswald S. Welsh, held real estate broker license number 0301189 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He presently is broker for Welsh International Realty, Inc. located at 4684 Northwest 183rd Street, Carol City, Florida. Prior to his involvement with Welsh International Realty, Inc., Respondent was employed as a salesman with Pedro Realty, Inc. until on or about September 15, 1980. Respondent mailed the required papers to establish his own real estate firm to the Board of Real Estate in Orlando, Florida, shortly after he left Pedro Realty, Inc. He assumed that he was authorized to commence business as a broker once the papers were mailed. This assumption was based upon his understanding of the practice followed by other brokers in Dade County. However, because the papers were mailed to Orlando rather than the Department of Professional Regulation in Tallahassee, his registration as a broker did not become effective until November 17, 1980. Respondent engaged the services of an attorney in Hialeah, Florida, to incorporate his real estate firm. The articles of incorporation were sent to the Department of State by letter dated September 19, 1980. Because of an error in the papers, the application was returned to Welsh's attorney on October 1, 1980. The incorporation was ultimately approved on October 22, 1980. Prior to the approval of the incorporation, a salesman for Respondent's firm negotiated a sale of real property on October 17, 1980. Welsh received no proceeds or other value from the closing. Welsh is a native of Jamaica who has lived in the United States since 1963. He became a United States citizen in January, 1982. His real estate firm presently employs approximately twelve persons, of whom seven are full time. Respondent did not intentionally violate the law but appeared to have relied upon the advice of his attorney as to when he could begin to operate his business in a legal manner. Because of errors in filing the papers, or paper not properly filled out by his attorney, he unintentionally began operating prior to approval by the State.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count II of the Administrative Complaint and issued a public reprimand. DONE and ENTERED this 8th day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of July, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation Board of Real Estate 130 North Monroe Street Tallahassee, Florida 32301 William H. Davis, Esquire 111 NW 183rd Street Miami, Florida 33169 Carlos B. Stafford Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact The Respondent, Shirley Holland, a licensed real estate salesman, was convicted of the crime charged in the administrative complaint by entering a plea of nolo contendere in the Dade County Circuit Court, Miami, Florida, on September 30, 1975. Evidence of this plea :as admitted over the objections of counsel for the Respondent and it would be appropriate now to discuss the admissibility of those documents. There is no question that evidence of a plea of "no contest" is inadmissible in a civil proceeding to prove truth of the charge; however, the above proceeding was conducted under the authority of Chapter 120 Florida Statutes. Section 120.58(1), F.S., states: "Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida." Considering that the plea of nolo contendere is tantamount to a plea of guilt and that rules of evidence for an administrative proceeding are somewhat less stringent than those in the courts of this State, it is the opinion of the under signed Hearing Officer that, under the circumstances of this case, evidence of a plea of "no contest" or nolo contendere should be admitted to consider whether the holder of a professional license issued by the State of Florida should be disciplined. Licensing agencies of the State have an obligation to maintain high standards in a licensed occupation and should not be prevented from imposing standards of responsibility through evidence which appears to be unequivocal. Although the Respondent testified and presented other evidence of his reasons for having plead "no contest" to the charge and to the high reputation he enjoys in the community, such testimony is insufficient to rebut the conviction of the crime.
The Issue The issue in this case is whether Petitioner, a licensed Florida real estate sales associate, violated provisions of Subsections 475.25(1)(b), 475.25(1)(d)1., 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the Department), is the state agency responsible for licensing and monitoring real estate sales associates within the state. It is charged also with the duty to prosecute administrative complaints for violations of the law by real estate sales associates. Respondent, Caroline Mohan (Ms. Mohan), is a licensed real estate sales associate who holds License No. 3087231. She was registered as a sales associate with Coral Shores Realty (Coral Shores) in Fort Lauderdale, Florida, from September 12, 2005, to March 28, 2008. At all times relevant to the charges against her, Ms. Mohan was the Coral Shores sales associate who was the listing agent for Anthony Mannarino, the seller of property located at 10530 Versailles Boulevard, Wellington, Florida (the "subject property"). At closing, Coral Shores was to have received at 2.5 percent commission and pay a portion of the commission to Ms. Mohan. Dawn Campbell and Garth Smith (the buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the subject property from Mr. Mannarino. Pursuant to the contract, the buyers were to deposit $10,000 in an escrow account in two $5,000 installments. The Contract was signed on or about March 12, 2007. The transactions took place electronically and Mr. Smith sent Ms. Mohan a photocopy of a $5,000 check that he was supposed to have deposited, under the terms of the contract, in the account of Closings Unlimited Title Company (Closings Unlimited), but he never sent the check to Closings Unlimited. The seller asked Ms. Mohan to have the buyer use a different escrow agent, Southeast Land Title (Southeast), and so the buyer wired $5,000.00 to Southeast, but the Contract was not amended to reflect the name of the new escrow agent. A $5,000 deposit was sent to Southeast by the buyers, but they never paid the $5,000 balance due on the deposit. Mr. Smith testified the he could not make the second payment because he gave $5,000 in cash to an employee to deposit in his account so that he could make a wire transfer, but the employee took the money. On April 3, 2007, Southeast faxed a notice to Coral Shores, with an attached letter to the buyers, informing them of its intention to respond to a demand (presumably by the seller) to release the $5,000 held in escrow related to the subject property. As a result of a complaint filed by Dorothy Hoyt, a representative of Southeast, the matter was investigated and an Administrative Complaint filed against Respondent. The Administrative Complaint alleges that Ms. Mohan personally received funds, fraudulently failed to account for those funds, and acted, without the proper license, as a broker by accepting the deposit. The Department's investigator testified that he was never able to determine if the escrow deposit was deposited at any bank, lending institution or with Dorothy Hoyt of Southeast Land Title of Boca Raton. He "believe[s] there was a wire for one deposit made, but [he] did not receive confirmation of that." Regarding his conversations with Ms. Hoyt, the investigator reported "she did state that . . . she had received - eventually received $5,000.00 and was still waiting [for] another $5,000.00 in order to have the full $10,000.00 deposit." In his report, the Department's investigator claimed that Respondent was terminated from employment by her Coral Shores broker, Ronald Cika, as a result of her misconduct in handling transactions related to the subject property. That claim was contradicted by Mr. Cika and by Ms. Mohan. Their testimony was supported by the contents of e-mails between his office and Respondent that show that she became inactive as a realtor while traveling overseas with an offer to reactivate with the same broker upon her return. Mr. Cika testified that he is aware of a lawsuit filed by Dawn Campbell related to a different address on the same street, 10526 Versailles Boulevard, but that he is not aware of any issues related to 10530 Versailles Boulevard, the subject property. Jannet Rodriguez, owner of Closings Unlimited, testified that she was never contacted and never opened a file to serve as either an escrow or closing agent for the subject property at 10530 Versailles Boulevard. She, too, is involved only in issues related to 10526 Versailles Boulevard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Caroline Mohan. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 12th day of June, 2009.
Findings Of Fact Frederick Hodgdon (Hodgdon) has held Florida real estate broker license 0206805 at all times pertinent to this case. Hodgdon is owner and qualifying broker for Pelican Realty of Marco Island, Inc., (Pelican Realty), through which Hodgdon conducts business and which also is named as a respondent. At all times pertinent, Pelican Realty has held Florida corporate real estate broker license 0223934. July 24 through August 6, 1984, respondents placed the following newspaper advertisement in the Sun-Daze: DO YOU KNOW ... that all Florida real estate brokers are agents for the seller and CANNOT legally propose any lower than listed prices or better terms for the benefit of the buyer? UNLESS ... the broker legally qualifies himself as an agent for the buyer. As a Buyer's Broker Pelican Realty CAN and DOES exactly this and a lot more! Buyers pay no fees or commissions. Call or send for our informative brochure, you will be glad you did. The real estate buyer's best bet for the best price is to have a Buyer's Broker. On February 19, 1986, respondents placed the following newspaper advertisement in the Marco Island Eagle: 1/ BUYER BEWARE! DON'T BUY REAL ESTATE ON MARCO ISLAND. ... before consulting an attorney or carefully reading Paragraph 5) and 7) of the 1985 Revision of the Sales Contract as approved by the Naples Area Board of Realtors and the Marco Island Area Board of Realtors and the Collier County Bar Association contract Revision Committee. The Contract states quote: "The Buyer has inspected the property sold by the Contract and there are no other inspections permitted or required. The property is acceptable in its AS IS condition as of date of this offer. INCREDIBLE! ... What happens to the unwitting Buyer who intends to have termite, structural and seawall inspections AFTER his offer is accepted? He just may have to buy a termite ridden house that needs a new roof and a seawall that is on the verge of collapse. Thats what! ... Taken at face value the Sales contract calls for the buyer to spend several hundred dollars for inspections BEFORE making an offer that may well be turned down. INCREDIBLE! .... Paragraph 7) states quote: "Buyer's decision to buy was based on Buyer's own investigation of the property and not upon any representation, warranty, statement or conduct of the Seller, or broker, or any of Seller's or broker's agents" (Excluding those rare occasions when the seller and his agents remain silent.) INCREDIBLE! ... The above subject sections of Paragraphs 5) and 7) of the 1985 Sales Contract in our opinion may well violate the Realtor's Code of Ethics Article 7) "to treat fairly all parties to the transaction." There is nothing Pelican Realty could say or do to better emphasize the Buyer's need to have an advocate on his side. ... As a Buyer's Broker we recommend striking out any and all terms and conditions of the Sales Contract that are prejudicial to the Buyer's best interests. ... Pelican Realty would appreciate the opportunity to discuss with any interested parties the many advantages of working with a Buyer Broker. Our services are at NO additional expense to the buyer. CALL US FOR FURTHER DETAILS. NOW!! On March 11, 1986, respondents placed the following newspaper advertisement in the Sun-News: CASH BACK FOR THE REAL ESTATE BUYER. THAT'S INCREDIBLE! Pelican Realty GUARANTEES CASH BACK to every buyer on every sale. The bigger the sale, the bigger the cash gift to the buyer. On top of this Pelican Realty (a Buyer's Broker) goes all out to get the lowest possible price for the buyer at NO additional cost to the buyer. Other realtors must get the highest price for the seller. The thousands you SAVE already belong to you. THINK ABOUT IT! Call us for further details NOW! "WE PAY OUR BUYERS TO DO BUSINESS WITH US" There is nothing false or fraudulent about the three advertisements. However, the following statements in the advertisements are deceptive or misleading in form or content: The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that buyers pay no fees or commissions. In form, the buyer perhaps does not pay brokerage fees or commissions. But in substance, the buyer does indirectly pay his broker a brokerage fee or commission when the seller pays fees and commissions out of the proceeds of the sale. The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that a buyer's broker "legally qualifies himself as an agent for the buyer." Although perhaps technically correct, this representation implies separate state regulation and qualification procedures for licensure as a buyer's broker. In fact and in law, any licensed real estate broker can become a buyer's broker simply by entering into an agreement with a buyer to be the buyer's broker. The representation in the March 11, 1986, News-Sun advertisement: "Other realtors must get the highest price for the seller." Read carefully in context, this representation is true--realtors other than those representing a buyer must try to get the highest price for the seller he represents (while being open, honest and fair to the buyer). But, as written, the representation could lead one to believe that the respondents have an ability no other realtors have when, in fact and in law, any realtor or other licensed real estate broker who represents a buyer can try to get the best price for the buyer. Although respondents have offered cash rebates, no client has seen the offer or asked for a rebate. Although respondents have maintained their innocence, they changed the ads to meet the criticism of the Department of Professional Regulation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order (1) reprimanding respondents, Frederick Hodgdon and Pelican Realty of Marco Island, Inc., and (2) fining them $500 each for violations of Section 475.25(1)(c), Florida Statutes (1985). RECOMMENDED this 21st day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1987.
The Issue Whether the application of the Respondent, Robert A. Whittemore, III, for registration should have been denied.
Findings Of Fact The Respondent, Robert A. Whittemore, III, filed an application for registration as a real estate salesman with the Petitioner Commission on April 18, 1978. The application was denied, and Respondent by letter requested an administrative hearing to "prove that I do meet with the qualifications" for licensure. Respondent was sent notice of hearing on two (2) occasions by mail, and the notices were not returned. He did not appear to testify and sent no representative to testify in his behalf. Respondent had been licensed as a real estate broker in New York, New York, which license expired on October 31, 1973. The application submitted by Repondent showed that he was convicted of conspiracy in the third degree by the Supreme Court in the State of New York on August 19, 1976, and of falsely reporting an incident in the third degree on December 5, 1976, and sentenced on June 16, 1976. Thereafter a certificate of relief from disabilities on his real estate license was issued by a justice of the Supreme Court, State of New York, on October 20, 1977. Said certificate was submitted by Respondent at the time of his application for registration. No memorandum of law was submitted by either party involved in this administrative hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Respondent's application for registration be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1979. COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Robert A. Whittemore, III 5501 North Ocean Boulevard Ocean Ridge Palm Beach, Florida 33435
The Issue The issue in this case is whether Respondent is guilty of operating as a broker or salesperson without holding a valid and current license as a broker or salesperson, in violation of Sections 475.25(1)(a) and 475.25(1)(e), Florida Statutes.
Findings Of Fact Respondent was licensed as a real estate salesperson in the State of Florida and held license number 0443677. She placed her license with Active One Realty, Inc. in 1990 for two months in the spring and, after a brief interval during which her license was not with Active One, one month in the early summer. Each time, Respondent terminated her license with Active One. On September 4, 1990, Respondent again placed her license with Active One. Respondent worked as a 100% commission agent. She retained 100% of the commission earned by her broker on sales or purchases on which she participated. In return, Respondent paid Active One $150 monthly and $100 per closed transaction. In late October, 1990, Respondent informed her broker that she had purchased a daycare center, which was taking a lot of her time. Accordingly, Respondent wanted again to terminate her license with Active One. The broker and Respondent agreed that her last day of work would be November 5, 1990. The broker offered to return a $450 deposit to Respondent, but she asked that the broker retain it until she returned to Active One, as she intended to do. Respondent terminated her license with Active One effective November 6, 1990. Since that date, Respondent's license has continuously been on current inactive status, meaning that she may not engage in real estate activities for which a license is required. By letter to Respondent dated November 8, 1990, Active One confirmed the effective date of the termination. The letter contains a copy of a completed form informing Petitioner of the termination of the license. On November 26, 1990, Respondent prepared a standard contract for sale and purchase in connection with a proposed purchase of real property by her husband. Respondent completed the portions of the contract showing the buyer's name, purchase price, and mortgage information. Respondent delivered the contract, together with a business card showing Respondent as a salesperson with Active One, to another salesperson who was employed by the broker representing the sellers. Respondent also signed the contract as a cooperating broker on behalf of Active One. Prior to the sellers' execution of the contract, which had already been signed by Respondent's husband, Respondent informed the sellers' agent that certain provisions of the contract needed to be changed. The sellers' salesperson prepared another contract, which Respondent's husband signed December 2, 1990. Over Respondent's objection, the sellers' salesperson insisted that the contract contain an addendum stating that Respondent would be participating in the commission and her spouse was the buyer. Respondent's husband, as buyer, also signed the addendum on December 2. Respondent failed to inform Active One of the contract, which the sellers signed on December 8, 1990. The closing was set for no later than January 30, 1991. Active One learned of the contract by chance. An employee of the title company writing the title insurance noticed the name of Active One on the contract. He mentioned the fact to his wife, who is a broker with Active One. When the broker called Respondent and asked her why she was writing a contract when she was no longer licensed, Respondent said only that she had not realized that she was not licensed.
Recommendation Based on the foregoing, it is hereby recommended that the Florida Real Estate Commission enter a final order determining that Respondent violated Sections 475.42(1)(a) and, thus, 475.25(1)(e), Florida Statutes, issuing a reprimand, and imposing an administrative fine of $1000. RECOMMENDED this 17th day of June, 1992, 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 this 17th day of June, 1992. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Poornawatie Tiwari 9916 N.W. 9th Ct. Plantation, FL 33322
