Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the licensure and real estate brokerage and sales practice standards embodied in Chapter 475, Florida Statutes. The Respondent is a licensed real estate broker, licensed under that chapter. The Respondent, Keith Ellis, while engaged in the business of real estate development, entered into a contract whereby he would purchase a parcel of land adjacent to U.S. Highway 90, the "Scenic Highway," in Pensacola, Florida. That agreement was entered into in February, 1985, with the Respondent's purpose being to commence development of the property, consisting of eight residential lots, into a single-family residential subdivision. Mr. Ellis, in embarking upon his development plan, after entering into the contract for purchase of the subject lots, found that he lacked capital necessary to finance construction of certain infrastructure for the subdivision. He sought additional funding and ultimately was referred to Robert Tegenkamp as a potential investor. He entered into discussions with Mr. Tegenkamp and ultimately the two agreed that Tegenkamp would invest $25,000 in the project. In return, as consideration, Mr. Ellis agreed to repay the $25,000 investment to Tegenkamp within six months. He also agreed to pay Tegenkamp a $25,000 profit within twelve months. He prepared a written agreement to that effect, executed March 1, 1985. The Respondent also proposed to give Mr. Tegenkamp an option on one lot, Lot Number 8, in the planned subdivision, as further consideration for Tegenkamp investing the necessary capital. This option was executed February 28, 1985. The subdivision totaled eight lots, all of equal value, as established by the opinion of the Respondent himself, who is experienced in appraising real estate, and by M. Eugene Presley, a licensed M.A.I. appraiser. It was the intent of both Ellis and Tegenkamp, at the time of the signing of the agreement, that Ellis would seek to sell all the eight lots, including the lot on which Tegenkamp held an option. Both those parties also understood that Tegenkamp could not be repaid unless the lots were sold. Tegenkamp had no desire to take title to any lot in the subdivision and understood from the outset that he would be entitled to Lot 8, (or any lot), only if Ellis was otherwise unable to repay him. The Respondent arbitrarily chose to indicate Lot 8 on the option contract, but Tegenkamp had no special desire to acquire any interest in that particular lot. The true intent of the parties was simply that Tegenkamp have an option on a lot in the subdivision to secure him, in the event the debt was not repaid by Ellis. In view of the fact that the value of each lot was identical, it did not matter to Tegenkamp on which lot he had an "option," or other form of security interest. He never expected to get title to a lot and was never told that he would, by the Respondent or any other person. The Respondent has always acknowledged that he owes the money in question to Mr. Tegenkamp and that he was obligated under the "option" to convey one of the lots to Tegenkamp, if he could not repay him. Ellis borrowed the funds for acquisition of the property, and for coverage of most development costs, from the First National Bank of Escambia County. Before the agreements between Ellis and Tegenkamp were signed, he told Mr. Tegenkamp, who also did his banking business at the same bank, of the bank's involvement in financing the project. The Respondent suggested that Tegenkamp contact the loan officers involved to reveal his interest in the project. This Tegenkamp failed to do, nor did he ever record his option agreement. Consequently, the bank acquired a first priority lien on the eight lots by the execution and recording of the mortgage from Ellis to the bank, for financing the purchase, installation of the infrastructure and payment of other development costs. When Mr. Ellis obtained the $25,000 capital from Mr. Tegenkamp, he proceeded with his development plans. He negotiated a sale of all the lots in the subdivision to Ray Lemon, a general contractor. On May 10, 1985, he entered into a written sales contract with Mr. Lemon as to all eight lots. This contract required Ellis to proceed to complete all improvements, such as paving and drainage provisions, as well as to obtain approval of the plat of the subdivision by the City of Pensacola. Mr. Ellis informed Mr. Tegenkamp of this agreement with Mr. Lemon. Thereafter, on May 28, 1985, Mr. Ellis closed the loan with First National Bank of Escambia County, giving that bank a first priority mortgage lien on the entire subdivision. Shortly thereafter, the plat of the subdivision was accepted by the City of Pensacola. Most of the improvements installed by Ellis were complete by late July, 1985. Mr. Lemon then indicated to Ellis that he was having financial difficulties and needed to delay the closing of his purchase of the eight lots. If Lemon had been able to complete his planned purchase of all eight lots on time, Mr. Ellis could have paid Tegenkamp the agreed upon $50,000 and still netted about $10,000 profit himself. In any event, shortly after Ellis learned of the delayed Lemon closing, he was approached by Dr. and Mrs. Tousignant, who were interested in purchasing Lots 7 and 8. Dr. Tousignant owned a neighboring parcel of property and wanted to preserve his view of Escambia Bay by acquiring ownership of Lots 7 and 8. The Respondent obtained Mr. Lemon's approval to sell Lots 7 and 8 to the Tousignants and also informed Mr. Tegenkamp of the proposed sale to the Dr. and his wife, as Mr. Tegenkamp himself admitted. Mr. Tegenkamp approved of Ellis selling the lots in question, and on August 25, 1985, Ellis entered into a written agreement to sell Lots 7 and 8 to the Tousignants. The sale was closed on September 17, 1985, but did not produce enough money for Ellis to pay off Tegenkamp. Tegenkamp had not demanded payment at this time anyway and the final time limit for repayment had not elapsed. Thereafter, Ray Lemon encountered more financial problems and for several months was unable to close the planned purchase of the remaining six lots. Eventually, Lots 3, 4, 5 and 6 were sold to Ray Lemon and K. C. Hembree. These closings took place between January and March, 1986. The sales did not produce enough funds to pay off Tegenkamp because of development expenses which had to be covered, mortgage release amounts and interest attributable to each lot, which had to be paid to the bank holding the first mortgage. The Respondent thus retained ownership of only Lots 1 and 2 by the end of March, 1986. His ownership of these two lots was subject to the first mortgage to the bank, the principal balance of which remained at approximately $20,600. That mortgage was subsequently assigned to Ray Lemon who had payed off the bank. Lemon now holds that mortgage. The Respondent has attempted, without success, to sell the remaining two lots. Because of economic conditions prevailing, the value of each of the two remaining lots declined from an estimated $59,000 in March, 1985, to about $50,000 by April, 1986. Because Ellis did not timely pay the $25,000 required by the original agreement, Mr. Tegenkamp retained an attorney to represent him in seeking repayment. Attorney Miles Davis entered into various discussions with Ellis from November, 1985 through April, 1986. In December, 1985, Ellis had proposed to Davis that he deliver to Tegenkamp a quit claim deed conveying his interest in Lot 1 to Tegenkamp. Ellis could not give a warranty deed because title was then encumbered by the above-mentioned mortgage held by Lemon, as assignee of the bank, and because of a potential claim of lien by the paving contractor for $7,000 to $8,000. The contractor since failed to pursue and perfect his claim of lien. In February, 1986, Attorney Davis wrote to Ellis expressing a willingness to accept a quit claim deed on behalf of Tegenkamp. In April, 1986, Ellis delivered the quit claim deed to Davis, conveying his interest in Lot 1 to Tegenkamp. It was recorded in the public records of Escambia County. Davis then filed a civil suit against Ellis in May, 1986, on behalf of Tegenkamp. The parties since arrived at a settlement of that litigation whereby Tegenkamp is to receive approximately $25,000 and Lot 1 will be re-conveyed to Ellis. Tegenkamp's attorney, Miles Davis, testified that Ellis never denied owing the money to his client and every indication was that the Respondent was trying to sell the property as soon as possible to pay his obligation to Tegenkamp. Mr. Tegenkamp himself testified and acknowledged that the Respondent was not trying to take advantage of him, but was simply "someone who had gotten himself into a bad deal."
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 the Administrative Complaint be DISMISSED in its entirety. DONE and ENTERED this 22nd day of February, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0228 Petitioner's Proposed Findings of Fact: The Petitioner filed no proposed findings of facts. Respondent's Proposed Findings of Fact: 1-41 Accepted. COPIES FURNISHED: Danny L. Kepner SHELL, FLEMING, DAVIS & MENGE Seventh Floor, Seville Tower Post Office Box 1831 Pensacola, Florida 32598 Arthur R. Shell, Jr., Esquire Senior Attorney Division of Real Estate 400 West Robinson Post Office Box 1900 Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact At all times relevant hereto, Petitioner was licensed as a real estate broker by the Florida Real Estate Commission. In May 1988, he was working as a broker-salesman with G.V. Stewart, Inc., a corporate real estate broker whose active broker is G.V. Stewart. On April 20, 1989, Respondent submitted a Contract for Sale and Purchase to the University of South Florida Credit Union who was attempting to sell a house at 2412 Elm Street in Tampa, Florida, which the seller had acquired in a mortgage foreclosure proceeding. This offer reflected a purchase price of $25,000 with a deposit of $100 (Exhibit 2). The president of the seller rejected the offer by striking out the $25,000 and $100 figures and made a counter offer to sell the property for $29,000 with a $2000 deposit (Exhibit 2). On May 9, 1989, Respondent submitted a new contract for sale and purchase for this same property which offer reflected an offering price of $27,000 with a deposit of $2000 held in escrow by G.V. Stewart (Exhibit 3). This offer, as did Exhibit 2, bore what purported to be the signature of William P. Murphy as buyer and G. Stewart as escrow agent. In fact, neither Murphy nor Stewart signed either Exhibit 2 or Exhibit 3, and neither was aware the offers had been made at the time they were submitted to the seller. This offer was accepted by the seller. This property was an open listing with no brokerage firm having an exclusive agreement with the owner to sell the property. Stewart's firm had been notified by the seller that the property was for sale. Respondent had worked with Stewart for upwards of ten years and had frequently signed Stewart's name on contracts, which practice was condoned by Stewart. Respondent had sold several parcels of property to Murphy, an attorney in Tampa, on contracts signed by him in the name of Murphy, which signatures were subsequently ratified by Murphy. Respondent considers Murphy to be a Class A customer for whom he obtained a deposit only after the offer was accepted by the seller and Murphy confirmed a desire to purchase. Respondent has followed this procedure in selling property to Murphy for a considerable period of time and saw nothing wrong with this practice. At present, Respondent is the active broker at his own real estate firm.
Recommendation It is RECOMMENDED that William H. McCoy's license as a real estate broker be suspended for one year. However, if before the expiration of the year's suspension Respondent can prove, to the satisfaction of the Real Estate Commission, that he fully understands the duty owed by a broker to the seller and the elements of a valid contract, the remaining portion of the suspension be set aside. ENTERED this 29th day of November, 1989, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. COPIES FURNISHED: John Alexander, Esquire Kenneth E. Easley 400 West Robinson Street General Counsel Orlando, Florida 32802 Department of Professional Regulation William H. McCoy 1940 North Monroe Street 4002 South Pocahontas Avenue Suite 60 Suite 106 Tallahassee, Florida 32399-0792 Tampa Florida 33610 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact At all times pertinent to the matters involved herein; Petitioner held Florida real estate salesman's license number 0403224. Her license was listed with Century 21 ACR Equities; Inc., 4222 W. Fairfield Drive, Pensacola; on May 25; 1983. On March 4, 1985, Respondent listed her license with Century 21; Five Flags Properties; Inc., in Pensacola, without terminating her listing with ACR Equities. On March 22, 1985, Five Flags terminated her listing with that firm and on April 30; 1985, ACR Equities terminated her listing with that firm. On May 14; 1985; Respondent applied for a change of status to list her license with Old South Properties; Inc., in Pensacola. That firm terminated the association on July 9, 1985. On March 19; 1985; Emmison Lewis and his wife; Lillie Mae signed a handwritten sales agreement prepared by Respondent for the purchase of a piece of property located in Escambia County; for $33,000.00. The Lewises gave her a deposit of $500.00 by check made payable to Respondent and which bears her endorsement on the back. This check was made payable to Respondent because she asked that it be made that way. Several days later; Respondent came back to the Lewises and asked for an additional $1,500.00 deposit. This was given her, along with a rental payment of $310.00; in a $2,000.00 check on March 29, 1985. Respondent gave the Lewises the balance back in cash along with a receipt reflecting the payment of the $1,500.00. On that same date; Respondent had the Lewises sign a typed copy of the sales agreement which reflected that both the $500.00 deposit and the additional $1,500.00 were due on closing. This typed copy was backdated to March 19; 1985. Both the handwritten and typed copies of the sales agreement bear the signature of the Respondent as a witness. The sale was never closed and the Lewises have never received any of the $2;000.00 deposit back. On about four different occasions, Mr. Lewis contacted Respondent requesting that she refund their money and she promised to do so, but never did. They did, however, receive the $310.00 rent payment back in cash approximately two weeks later. On April 26, 1985, James E. Webster and his wife Pearlie signed a sales agreement as the purchasers of real estate with Respondent. This property had a purchase price of $31,900.00. At the time of signing, Mr. Webster gave Respondent $150.00 in cash and a check drawn by his wife on their joint account for $400.00. Due to Mrs. Webster's change of mind, the Websters did not close on the property. They requested a refund of their deposit and Respondent gave the Websters a check for $400.00 which was subsequently dishonored by the bank because of insufficient funds. The Websters called Respondent at home several times, but she was always out. Calls to the broker with whom her license was placed were unsuccessful. Finally, however, Respondent refunded the $400.00 to the Websters in cash. Respondent had listed her license with ACR Equities in May, 1983. At no time while Respondent had her license with Mr. Bickel's firm did she ever turn over to him as broker either the $2.000.00 she received from the Lewises or the $550.00 she received from the Websters. Mr. Bickel, the broker, was not aware of these contracts and did not question her about them. He terminated the placement of her license with his firm because he found out that in early March 1985, she had placed her license with another firm., Both sales agreements for the Lewises and that for the Websters had the firm name of ACR Equities printed on them as broker.
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that Respondent's license as a real estate salesman in Florida be revoked. DONE and ORDERED this 23rd day of May, 1986, in Tallahassee; Florida. ARNOLD H. POLLOCK, 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 23rd day of May, 1986. COPIES FURNISHED: Arthur R. Shell, Esquire p. O. Box 1900 Orlando, Florida 32802 Ralph Armstead; Esquire P. O. Box 2629 Orlando; Florida 32802
Findings Of Fact At all times material hereto, Respondent Mark S. Henderson (hereinafter "Henderson") has been a real estate salesman licensed in the State of Florida, having been issued License No. 0441662. At all times material hereto, Respondent Auction World of West Florida, Inc., (hereinafter "Auction World") has been a corporate real estate broker registered in the State of Florida, having been issued License No. 0238372. Respondent Henderson is a real estate salesman/auctioneer employed by Auction World. He moved to Florida in October, 1984, and became a licensed real estate salesman in Florida in February, 1985, some 8 months prior to the transaction forming the basis for the Administrative Complaint. John and Joanne Henneberry signed a listing for the auction/sale of their home with Auction World through Henderson. The Henneberrys are both educated people who had prior experience in buying and selling real estate. The October 1, 1985 listing signed by the Henneberrys provided that it was a 30-day listings provided for a seven percent commission, provided for the Henneberrys to pay advertising costs not to exceed $750, and provided specifically that the $750 would not be considered as an advance fee. The listing further provided for an accounting to be made within 30 days. The Henneberrys gave Auction World a check for $750. The Henneberrys' best friend is Ralph Marciano, a real estate broker. He sold his home through Auction World and referred the Henneberrys to Auction World. The Henneberrys purchased a home through Marciano and throughout the transactions involved here consulted Marciano about how to proceed. Auction World was engaged primarily to sell the Henneberrys' home in Lehigh Acres, and Marciano was involved in the purchase or offers to purchase their new home. Pursuant to the listings advertising for the auction was published by Auction World. The auction was held on October 19, 1985, but no sale resulted from the contract negotiated through the auction. Auction World continued to work on behalf of the Henneberrys pursuant to an oral extension. Johan Ruhe and his wife were advised by Henderson of the availability of the Henneberrys' home in Lehigh Acres. Johan Ruhe is a retired real estate broker who now works for Lee County as its Director of Land Management. In December, 1984, an offer of $66,000 was made by the Ruhes to the Henneberrys through Auction World, but this offer was not accepted. On January 2 or 3, 1985, the Ruhes made an offer on the Henneberrys' home in the amount of $68,000. The offer provided for no down payment; included the range, refrigerator, dishwasher, washer, dryer, curtains and draperies to be included in the sale price; and called for financing over 30 years at an 11 percent fixed rate of interest. It further required that financing be obtained for 80 to 95 percent of the purchase price. This offer was accepted by the Henneberrys, and all parties considered this to be a binding legal contract. The original listing had called for a 7 percent commission, but when the $68,000 contract was signed, the Henneberrys negotiated Auction World from a 7 percent commission down to a $3,000 commission. The Ruhes filed a loan application with B. F. Saul Mortgage Company (hereinafter "B. F. Saul") based upon the $68,000 contract. B. F. Saul has an office in Fort Myers, Florida, which was opened on May 2, 1983, by Robert W. Prange (hereinafter "Prange") who at all times relevant to this action was a vice-president of B. F. Saul and branch manager of the local office. On January 11, 1986, the Henneberrys made an offer to purchase a home from the Jamilles, which was contingent on the Henneberrys closing with the Ruhes. Prior to signing the contract with the Ruhes, the Henneberrys discussed the contract with their best friend, real estate broker Marciano who made changes to the contract and discussed with the Henneberrys the fact that there was no deposit provided in reference to that contract. After the Henneberrys signed the contract to purchase a home from the Jamilles, the Jamilles' broker indicated to the Henneberrys that the Jamilles would like the Henneberrys' contract with the Ruhes to have a provision for a deposit. During this period of time, the Henneberrys were in direct contact with Prange at B. F. Saul, and Prange indicated to them that there was no problem with the Ruhe contract and loan application. After the Jamilles' broker contacted the Henneberrys and asked for a contract showing an escrow deposit on the Henneberry home, the Henneberrys contacted Henderson at Auction World and asked him to draw a new contract to show that a down payment had been made. Henderson prepared a new contract, and the Ruhes signed it. The new contract showed a deposit of $3,600, a purchase price increase of $3,600, and a commission increase of $3,600. In order to show the deposit requested by the Henneberrys, Auction World "gifted" by letter the $3,600 to the Ruhes. The contract was then presented to the Henneberrys. In fact, the Ruhes were not paying $3,600 more to purchase the home for which they already had a contract. Since the new agreement increased the commission by $3,600, Auction World by letter was giving back that sum to the Ruhes so that everything actually stayed the same but an escrow was shown as requested by the Henneberrys. The Henneberrys signed the new contract. At the time that they signed, they knew that the Ruhes were not paying the $3,600 additional purchase price. About the same time that the Henneberrys were requesting that the contract be redrawn to reflect a down payment from the Ruhes, Prange at B. F. Saul became concerned as to whether the Ruhes had sufficient cash available to them to consummate the transaction. When the second contract was taken by Henderson to Prange, Prange suggested that a change be made in it from a fixed interest rate to a variable interest rate so that the Ruhes could qualify for the loan. Prange then "whited out" the listing of personal property that appeared in the contract, suggesting that the deletion of the personal property would reflect an increased value in the price of the real estate. Although Prange was an officer of B. F. Saul, he was on a commission basis. He was not only the loan officer on the Henneberrys/Ruhes transaction, he was also the loan officer on the Henneberrys/Jamilles transaction. Accordingly, he knew that a successful consummation of the Ruhe transaction would ensure him of receiving two commissions but that a lack of success on the Ruhe transaction would automatically defeat the Jamille transaction. Prange knew that there was no escrow of $3,600 as reflected by the second contract Henderson presented to him. Yet, he requested Henderson to execute a "Verification of Earnest Money" form, which stated that an earnest money deposit had been received in the amount of $3,600 to be held toward the down payment and/or closing costs on the Henneberrys home. The form did not represent that the money was held in escrow, nor did it differentiate between whether that money was the down payment toward the purchase or whether that money was to be used toward closing costs. Henderson signed the verification that the $3,600 deposit was being held by Auction World because he believed the gift to the Ruhes was the same as having the deposit since it was Auction World's $3,600. Additionally, the buyer, the seller, and the loan officer were aware of the contents and reasons for the series of contracts, and the gift was evident from the series of contracts involved. Henderson prepared another contract. He also prepared an addendum to that contract containing an agreement on the purchase of the personal property since he believed the personal property had to be mentioned somewhere in order to protect both the buyer and the seller. The addendum was signed on or about February 13, 1985. The newest contract also provided for the seller to pay the closing costs. When the addendum was presented to the Henneberrys they insisted that an additional provision be added to the addendum that would guarantee that the buyer would pay the Henneberrys $4,000 toward the closing costs prior to the closing. Therefore, at the Henneberrys' request, language was added to the addendum to provide that $4,000 would be paid to the Henneberrys 72 hours prior to the closing by either Auction World or by the Ruhes. Despite the efforts of Henderson and Prange to successfully structure the Henneberry/Ruhe transaction, the Ruhes were not able to obtain approval on their loan application, and the Henneberry/Ruhe sale was not consummated. The listing agreement for the auction of the Henneberry home required that the Henneberrys pay $750 to Auction World to pay for the costs of advertising the auction. The listing contract specifically provided that the $750 did not represent an advance fee but simply represented costs of advertising. Since the statutes regulating the real estate profession do not define what constitutes an advance fee, Henderson consulted an attorney regarding the desire to obtain advertising costs in advance. The listing form used and the method of handling the Henneberrys' $750 was in compliance with the recommendation to Auction World and Henderson by that attorney. The legal advice given to them was that none of the $750 should be used on any overhead or internal expenses but rather the $750 must all be spent on independent outside advertising. Since the listing agreement specified that the $750 was not an advance fee, and since Henderson and Auction World followed the procedure recommended to them by an attorney, all parties believed that the funds were not an advance fee. The listing called for an accounting within 30 days, and an oral accounting was provided at that time. The Henneberrys did not request a further accounting until February 27 or 28, 1985. A written accounting was provided by March 11, 1985. No evidence was offered to show that any of the $750 was kept other than in a trust or escrow account at Auction World, and no evidence was offered to indicate that any of it was misused. In fact, the advertising expenses on the Henneberry home exceeded $750, and Auction World bore the extra expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondents Henderson and Auction World not guilty of the allegations contained within Counts I, III, and V, and dismissing the Administrative Complaint filed against them. DONE and RECOMMENDED this 3rd day of November, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 3rd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0602 Respondents Henderson and Auction World's proposed findings of fact numbered 1, 30, 35, 36, and 38 have been rejected as not constituting findings or fact but rather as constituting conclusions of law or argument of counsel. Respondents Henderson and Auction World's proposed findings of fact numbered 2, 6, and 7 have been rejected as being immaterial to the issues under consideration herein. Respondents Henderson and Auction World's proposed findings of fact numbered 3-5, 8-29, 31-34, 37, and 39-42 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 E. G. Couse Esquire Post Office Drawer 1647 Fort Myers, Florida 33902 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent should be disciplined upon a charge that he operated as a salesman for any person not registered as his broker in violation of Section 475.42(2)(1)(b), Florida Statutes, and whether Respondent should be disciplined based upon a charge that he collected money in connection with any real estate brokerage transaction without the express consent of his employer and not in the name of his employer in violation of Section 475.42(1)(d), Florida Statutes.
Findings Of Fact The Petitioner is the state agency charged with regulating and disciplining real estate salespersons. The Respondent is and was at all times material to this complaint a licensed real estate salesperson in the State of Florida having been issued license no. 0593108. The Respondent's current license was issued as a voluntary inactive with an address of 1421 Daytona Avenue, Holly Hill, Florida 32117. In mid-1994, the Respondent was employed by Donal E. Harrigan, d/b/a Donal E. Harrigan Company (hereinafter Harrigan). The Respondent was licensed as a real estate salesperson with Harrigan, and was engaged in the selling of timeshares. While employed with Harrigan, the Respondent and his wife talked with Fadel Elbadramany, the broker and owner of AAA Realty. Initially the Respondent and his wife talked with Elbadramany about the purchase of commercial real estate; however, Elbadramany solicited both of them as real estate salespersons with his company. The Respondent's then wife was eventually employed by Elbadramany as a salesperson. The Respondent discussed employment with Elbadramany; however, Elbadramany would not discuss the nature and scope of his business until the Respondent had signed an employment agreement containing a non-competition clause and DBPR Form 400.5. The Respondent was interested in selling commercial property, but did not want to cease selling timeshares. He discussed this with Elbadramany who advised him that he could do both. Pursuant to this discussion, the Respondent filled out a DBPR Form 400.5 checking at the top of said form under Section A, "Multiple Licenses." Nothing was checked on the form indicating a change of employment or broker. The Respondent signed the form in blank and left it with Elbadramany. Fadel Elbadramany was called to testify. Elbadramany testified that he employed the Respondent, that the Respondent obtained list of prospects from his office, that the Respondent never sold any real estate for him, and that he had observed the Respondent engaging in the sale of real estate which was not listed with his brokerage. Brenda Groves, the ex-wife of the Respondent, was called to testify. Brenda Groves was employed by AAA Realty and Elbadramany. During her employment, a conflict arose which resulted in litigation between Brenda Groves and Elbadramany over the anti-competitive clause contained in the employment contract. Brenda Grove testified that Elbadramany threatened to get her and to get her husband. Ms. Grove testified regarding the employment of her ex-husband. The Respondent was not employed by AAA Realty. Ms. Groves testimony is considered very credible. There was a conflict in the testimony between Elbadramany and the Respondent concerning who filled out and completed the DBPR Form 400.5. The most credible evidence is that it was completed by Elbadramany and filed with the Department of Professional Regulation, Division of Real Estate. The form as filled out, requests only multiple licensure. The request for multiple licensure is consistent with the Respondent's intent to continue to sell timeshares for Harrigan and commercial property for Elbadramany. However, prior to commencing employment with Elbadramany, but after filling out the form, the Respondent determined that he did not want to be employed by Elbadramany. Meanwhile, unbeknownst to the Respondent, the Division of Real Estate received the DBPR Form 400.5 and, because the Respondent is not a broker, did not issue him a multiple license. Instead, the Division of Real Estate shifted the Respondent's registration as real estate salesperson from Harrigan to AAA Realty. Although the Respondent's registration had been changed from AAA to Harrigan, the Respondent continued to be employed by Harrigan and to work actively in Harrigan's business selling timeshares. The testimony of the Respondent and that of Elbadramany was that he did not do any work for AAA Realty. There is no evidence in this proceeding that the Respondent received a copy of the licensing change or was made aware of this change prior to March 10, 1995. On March 10, 1995, the Respondent was interviewed by an investigator of the Department of Business and Professional Regulation. At this time the Respondent became aware that his registration was with AAA Realty. As a result of this interview, the Respondent contacted the Department and discussed with them how to correct the status of his registration. In order to accomplish that in accordance with the instruction he received, the Respondent filed out a DBPR Form 400.5 registering with Harrigan by whom he had been continuously employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Division of Real Estate enter its final order dismissing the administrative complaint against the Respondent Gary Allen Groves. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Gary Allen Groves 1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent failed to execute a written agreement with the owner of property to be auctioned and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed auctioneer, holding license number AU 0000415. Respondent and Danny Mitchell are coworkers at a County mosquito control agency. Mr. Mitchell and his wife Joan were selling their house and moving out of town. Wanting to sell their personal possessions fast, they agreed that Mr. Mitchell would contact Respondent and ask him about conducting an auction. In late March 1993, Respondent visited the Mitchells at their home to view the property to be auctioned. Based on the number and quality of the property available for auction, Respondent realized that the auction would not raise much money. He estimated the value of the property to be auctioned at $1200 to $2000. Respondent did not require the Mitchells to sign a contract right away. Because of the friendship between Mr. Mitchell and Respondent, Respondent allowed the Mitchells to sell or give away items without Respondent's approval prior to the auction, and they sold $525 worth of items in the interim. Even the auction date was left open. The Mitchells did not want the auction to take place until they were closing on the sale of their house. For the next three months, the Mitchells sold and gave away what property they could. Then, without much notice, they told Respondent that they wanted the auction to take place. The Mitchells and Respondent agreed that the auction would take place July 24, 1993. Respondent discussed with Mr. Mitchell the need for advertising, which would come out of the Mitchells' share of the proceeds. The Mitchells agreed on fairly modest advertising. Respondent never obtained a written contract in the days prior to the auction. Although he was in frequent contact with Mr. Mitchell at work, there was some awkwardness in presenting the contract to him because Mr. Mitchell does not read or write. Respondent instead agreed to meet the Mitchells at their house on the morning of the auction, and he intended to present them a contract at that time to sign. Respondent appeared at their house at the agreed-upon time with a contract to be signed. However, he did not insist that they read and sign the contract because, as Respondent arrived, the Mitchells were rushing out of the house to take care of other matters. Consistent with their intent all along, the last instructions that the Mitchells gave Respondent was that he had to sell everything so the new homeowners could get into the house and the Mitchells would not have to move anything. Only about ten bidders appeared for the auction. Bidding was low. Respondent wanted to stop the auction, but had no way to contact the Mitchells, who did not try to contact him that day. Recalling the final instructions about selling everything, Respondent continued with the auction. After about an hour and a half, the auction ended with everything sold. Respondent claims that he received $499.50 in sale proceeds. It is unnecessary to determine whether this testimony should be credited. Respondent did not hear from the Mitchells for two weeks after the auction. One day, Mr. Mitchell returned to work from his vacation and asked for his money. Bringing the money the next day to work, Respondent gave the Mitchells a check for $200 with a settlement sheet itemizing the expenses. Upon the insistence of Mrs. Mitchell for documentation of the auction sales, Respondent later provided the Mitchells with copies of the clerking tickets. The estimated value of the auctioned property exceeded $500.
Recommendation It is RECOMMENDED that the Board of Auctioneers enter a final order reprimanding Respondent. ENTERED on July 28, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 28, 1995. COPIES FURNISHED: Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Susan Foster, Executive Director Board of Auctioneers Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Charles F. Tunnicliff, Chief Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Bruce C. Scott 2424 McGregor Boulevard Ft. Myers, FL 33901
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 The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
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 licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
The Issue Whether the Respondent is guilty of the violations alleged in the Administrative Complaint filed by the Petitioner and, if so, whether Respondent's real estate license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is a state government licensing and regulatory agency with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and the rules adopted pursuant thereto. At all times pertinent to this proceeding, Respondent Jared A. White T/A Jerry White Realty was a licensed real estate broker, having been issued license number 0187087 pursuant to Chapter 475, Florida Statutes. The last license issued to Respondent was as a broker with an address of 231 Skiff Pt. 7, Clearwater, Florida 34630. TITLE TO THE PROPERTY The matters at issue began with Respondent's retention as a real estate broker to bid at a foreclosure auction for a beachfront house and lot at 235 Howard Drive in Belleair Beach, Pinellas County, Florida. Respondent was hired to submit the bid on behalf of Dr. Moshe Kedan and/or his wife, Ella Kedan. Prior to the auction on August 17, 1995, Respondent had no contact with the Kedans. Kathy MacKinnon of Viewpoint International Realty in Clearwater was Respondent’s point of contact with the Kedans. It was Ms. MacKinnon who obtained Respondent's services to bid on behalf of the Kedans, and Ms. MacKinnon who negotiated with Dr. Kedan as to the financial arrangements for both the bid and any ensuing commissions for Respondent. Neither Ms. MacKinnon nor Dr. Kedan was called as a witness in this case. Respondent attended the foreclosure auction and tendered the winning bid on the property. Respondent bid in his own name. Respondent testified that he had bid at several similar sales in the past, and his practice was to bid in the name of the person who would hold title to the property. Respondent did not follow his usual practice here because Ms. MacKinnon failed to instruct him as to whether the property would be titled in the name of Dr. Kedan, Mrs. Kedan, or one of their corporations. Ms. MacKinnon told Respondent she would know on August 18 how the property was to be titled. Respondent's testimony regarding the initial titling of the property is supported by a handwritten note faxed by Ms. MacKinnon to Dr. Kedan on August 17, shortly after the auction. Ms. MacKinnon's note provides instructions regarding payment of the purchase price, indicating that the money must be submitted to the Clerk of the Court no later than 10:30 a.m. on the morning of August 18. The note specifically asks, "Also, whose name do you want the house in?" Respondent testified that on August 18, he went to Atlanta on business, with the understanding that Ms. MacKinnon would handle the payments to the Clerk of the Court and the titling of the property on that date. This testimony is consistent with the handwritten note in which Ms. MacKinnon indicates that she will take the Kedans' checks to the court. The record evidence shows that the payments were made to the Clerk of the Court and that title insurance on the property was timely issued. However, the title and the title insurance policy listed Respondent as owner of the property. Respondent was unaware the property had been titled in his name until he received the certificate of title in the mail, approximately two weeks after the auction. Upon receiving the incorrect certificate of title, he went to the title company and signed a quitclaim deed, effective August 17, 1995, in favor of Ella Kedan. Respondent testified that he had learned from Ms. MacKinnon that the property would be titled in Ella Kedan’s name at sometime during the two-week period after the auction. The quitclaim deed was not notarized until October 9, 1995, and was not recorded until October 10, 1995. However, the face of the deed states that it was made on August 17, 1995. It is plain that the signature line of the notary statement on the quitclaim deed has been altered from August 17, 1995 to October 9, 1995. Respondent had no knowledge of how the quitclaim deed came to be altered. Respondent also had no clear recollection as to why he dated the quitclaim deed August 17, 1995, in light of his testimony that he signed it approximately two weeks after that date. A reasonable inference is that Respondent so dated the quitclaim deed to clarify that Mrs. Kedan's ownership of the property commenced on August 17, the date on which Respondent submitted the winning bid. Respondent also had no knowledge of why the title company failed to record the quitclaim deed at the time he signed it. He testified that on or about October 9, 1995, he checked the Pinellas County computer tax records and discovered that he was still the owner of record. At that time, he returned to the title company to make sure the quitclaim deed was recorded the next day. Petitioner offered no testimonial evidence regarding the events surrounding the titling of the property. Respondent's uncontradicted testimony is credible, consistent with the documentary evidence, and thus credited as an accurate and truthful statement of the events in question. THE CONTRACT FOR REPAIRS Shortly after the auction, Respondent began discussing with Dr. Kedan the possibility of Respondent’s performing repairs on the just-purchased property. Because Dr. Kedan did not testify in this proceeding, findings as to the substance of the negotiations between Respondent and Dr. Kedan must be based on the testimony of Respondent, to the extent that testimony is credible and consistent with the documentary evidence. Respondent testified that Ms. MacKinnon approached him after the auction and asked him if he would be interested in fixing up the house for the Kedans. Respondent testified that he was agreeable to contracting for the work because his carpenter was between jobs and could use the money. Respondent thus met with Dr. Kedan at the doctor’s office to discuss the repairs. Dr. Kedan explained to Respondent that his ultimate plan was to demolish the existing house on the property and to build a more elaborate residence. Dr. Kedan wanted to rent out the house for five years before tearing it down, and wanted Respondent to affect such repairs as would make the house rentable for that five-year period. Respondent testified that Dr. Kedan expressly told him he did not want to spend a lot of money on the repairs. Respondent quoted Dr. Kedan a price of $20,000.00, which was the price it would take to pay for the repairs, with no profit built in for Respondent. Respondent testified that he sought no profit on this job. He had made a substantial commission on the purchase of the property, and anticipated doing business with Dr. Kedan in the future, and thus agreed to perform this particular job more or less as a “favor” to Dr. Kedan. After this meeting with Dr. Kedan, Respondent walked through the house with Irene Eastwood, the Kedans’ property manager. Ms. Eastwood testified that she and Respondent went from room to room, and she made notes on what should be done, with Respondent either concurring or disagreeing. Ms. Eastwood typed the notes into the form of a contract and presented it to Respondent the next day. On September 21, 1995, Respondent signed the contract as drafted by Ms. Eastwood. There was conflicting testimony as to whether Respondent represented himself as a licensed contractor in the negotiations preceding the contract. Respondent testified that he never told Dr. Kedan that he was a contractor, and that he affirmatively told Ms. Eastwood that he was not a contractor. Ms. Eastwood testified that she assumed Respondent was a licensed contractor because Dr. Kedan would not have hired a nonlicensed person to perform the contracted work. She denied that Respondent ever told her that he was not a licensed contractor. The weight of the evidence supports Respondent to the extent it is accepted that Respondent never expressly represented himself as a licensed contractor to either Dr. Kedan or Ms. Eastwood. However, the weight of the evidence does not support Respondent’s claim that he expressly told either Dr. Kedan or Ms. Eastwood that he was not a licensed contractor. Respondent’s subcontractors commenced work immediately upon the signing of the contract. Ms. Eastwood was in charge of working with Respondent to remodel the house, and she visited the site every day, often two or three times. She only saw Respondent on the site once during the last week of September, and not at all during the month of October. She did observe painters and a maintenance man regularly at work on the property during this period. Respondent concurred that he was seldom on the property, but testified that this was pursuant to his agreement with Dr. Kedan that he would generally oversee the work on the property. Respondent testified that he was on the property as often as he felt necessary to perform his oversight duties. Ms. Eastwood testified as to her general dissatisfaction with the quality of the work that was being performed on the property and the qualifications of those performing the work. She conveyed those concerns to the Kedans. Respondent testified that he did not initially obtain any permits to perform the work on the house, believing that permits would not be necessary for the job. On or about October 11, 1995, officials from the City of Belleair Beach shut down Respondent’s job on the Kedans’ property for lack of a construction permit. Respondent made inquiries with the City as to how to obtain the needed permit. City officials told Respondent that a permit could be granted to either a licensed contractor, or to the owner of the property if such property is not for sale or lease. Respondent checked the City’s records and discovered that, despite the fact that he had signed a quitclaim deed on August 17, he was still shown as the owner of the property. Respondent then proceeded to sign a permit application as the homeowner, and obtained a construction permit on October 11, 1995. Respondent testified that because the City’s records showed him as the record owner of the property, he committed no fraud in obtaining a construction permit as the homeowner. This testimony cannot be credited. Whatever the City’s records showed on October 11, 1995, Respondent well knew he was not the true owner of this property. Respondent cannot be credited both with having taken good faith steps to correct the mistaken titling of the property and with later obtaining in good faith a construction permit as the record owner of the property. Respondent testified that in obtaining the construction permit under false pretenses, his main concern was to keep the job going and to finish it in a timely fashion. He testified that there was no financial advantage to him in having the property in his name: he was making no profit on the job, and actually lost money because he had to pay for another title policy in the name of the Kedans. While there may have been no immediate financial advantage to Respondent, he was clearly motivated by the prospect of future profits in projects with Dr. Kedan. The City’s closing down this project jeopardized Respondent’s anticipated continuing relationship with Dr. Kedan, and Respondent took the improper step of obtaining a construction permit as the property owner to maintain that relationship. The Kedans ultimately dismissed Respondent from the job. A claim of lien was filed against the property by the painter hired by Respondent, and the cabinet maker sent the Kedans a lawyer’s letter threatening to file a claim of lien. Mrs. Kedan testified that she paid off both the painter and the cabinetmaker in full. Ms. Eastwood estimated that the Kedans ultimately had to pay an additional $20,000 to $50,000 to complete the repairs to the house, some of which included correctional actions for the improper repairs performed by Respondent’s workers. ALLEGED PRIOR DISCIPLINE Respondent has been the subject of a prior disciplinary proceeding by the Florida Real Estate Commission. In that prior proceeding, the Division of Real Estate's Administrative Complaint alleged that Respondent was guilty of violating Sections 475.25(1)(b) and (1)(k), Florida Statutes. On September 25, 1995, Respondent and the Division of Real Estate entered into a Stipulation disposing of the Administrative Complaint. Under the terms of the Stipulation, Respondent agreed to pay a fine of $1,000, and be subject to one year of probation, during which he would complete 30 hours of post-license education for brokers. The Stipulation expressly stated that Respondent neither admitted nor denied the allegations contained in the Administrative Complaint. The Florida Real Estate Commission entered a Final Order approving the Stipulation on November 14, 1995. Respondent's broker license was suspended by the Florida Real Estate Commission on January 24, 1996. The cause for this suspension was Respondent's failure timely to pay the $1,000 fine imposed by the Stipulation. Respondent paid the fine on February 19, 1996, and late renewed his license on April 24, 1997. In the instant proceeding, Respondent testified that by entering into the Stipulation, he had no intention of pleading guilty to any of the allegations, and that he would never have entered into the Stipulation had he known it would be construed in any way as a guilty plea.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts One and Three of the administrative complaint, and finding Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in Count Two of the administrative complaint, and suspending Respondent’s real estate license for a period of three years and fining Respondent a sum of $1,000. RECOMMENDED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 John Bozmoski, Jr., Esquire 600 Bypass Drive, Suite 215 Clearwater, Florida 34624-5075 Jared White White Realty 231 Skiff Point, Suite Seven Clearwater, Florida 34630 Henry M. Solares Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
