STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, FLORIDA ) REAL ESTATE COMMISSION (formerly )
Board of Real Estate), )
)
Petitioner, )
)
vs. ) CASE NO. 82-1479
)
WILBURN E. LOFTIS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was a formal hearing conducted pursuant to Subsection 120.57(1), Florida Statutes, and was held on August 9, 1982, commencing at 10:30 A.M., in Suite 109, 400 West Robinson Street, Orlando, Florida. This Recommended Order is being entered after receipt and review of the transcript of the proceedings filed with the Division of Administrative Hearings on September 1, 1982. 1/
APPEARANCES
For Petitioner: John G. DeLancett, Esquire
James R. Mitchell, Esquire Post Office Box 6171-C Orlando, Florida 32853
For Respondent: Wilburn E. Loftis, pro se
1021 East Colonial Drive Orlando, Florida 32803
ISSUES
The matters to be considered in this Recommended Order pertain to an Administrative Complaint made by the Petitioner against the Respondent. In particular, it is to be determined:
Count (1)--Whether or not the Respondent is guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, breach of trust or violation of a duty imposed by law or by the terms of a real estate contract by issuing a check in the amount of $2,000.00 to Harmon Pinkney from Andor's Mobile Home Park checking account for purposes not related to the operation of Andor's Mobile Home Park, in violation of Subsection 475.25(1)(b), Florida Statutes (1981).
Count (2)--Whether or not the Respondent is guilty of failing to deliver money which had come into his hands which is not his property by failure
to deliver to those persons entitled to delivery, upon demand, the said sum of
$2,000.00 entrusted to him in the bank account of Andor's Mobile Home Park, in violation of Subsection 475.25(1)(d), Florida Statutes (1981).
Count (3)--Whether or not the Respondent is guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, breach of trust or violation of a duty imposed by law or by the terms of a real estate contract by issuing a check in the amount of $778.10 to the Gold Key Inn from Andor's Mobile Home Park checking account for purposes not related to the operation of Andor's Mobile Home Park, in violation of Subsection 475.25(1)(b), Florida Statutes (1981)
Count (4)-Whether or not the Respondent is guilty of failing to deliver money which had come into his hands which is not his property by failure to deliver to those persons entitled to delivery, upon demand, the said sum of
$778.10 entrusted to him in the bank account of Andor's Mobile Home Park, in violation of Subsection 475.25(1)(d), Florida Statutes (1981).
Count (5)--Whether or not the Respondent is guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, breach of trust or violation of a duty imposed by law or by the terms of a real estate contract by issuing a check in the amount of $546.00 to Bjorn Arnback from Andor's Mobile Home Park checking account for purposes not related to the operation of Andor's Mobile Home Park, in violation of Subsection 475.25(1)(b), Florida Statutes (1981).
Count (6)--Whether or not the Respondent is guilty of failing to deliver money which had come into his hands which is not his property by failure to deliver to those persons entitled to delivery, upon demand, the sum of
$546.00 entrusted to him in the bank account of Andor's Mobile Home Park, in violation of Subsection 475.25(1)(d) ,Florida Statutes (1981).
Count (7)--Whether or not the Respondent is guilty of failing to place with his registered employer money entrusted to him by persons dealing with him as an agent of his registered employer by failing to place with his registered employer $150.00 rent received for the month of July, 1981, from Harmon Pinkney, in violation of Subsection 475.25(1)(k), Florida Statutes (1981).
Count (9)--Whether or not the Respondent, by those actions as set out in the previous counts, is guilty of fraud, misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence, breach of trust, in violation of Subsection 475.25(1)(b), Florida Statutes (1981).
Count (10)--Whether or not Respondent failed to deliver to the owner of said property, or their agents, upon demand, the sum of $150.00 which had been delivered to him by Harmon Pinkney for July, 1981, rental and by doing so was guilty of failing to deliver money which had came into his hands, not his property, in violation of Subsection 475.25(1)(d), Florida Statutes.
Count (11)--Whether or not the Respondent is guilty of failing to place with his registered employer money entrusted to him by persons dealing with him as an agent of his registered employer by failing to place with his registered employer $150.00 rent money received for the month of August, 1981, from Harmon Pinkney, in violation of Subsection 475.25 (1)(k), Florida Statutes.
Count (13)--Whether or not the Respondent, by those actions as set out in the previous counts, is guilty of fraud, misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence, breach of trust, in violation of Subsection 475.25(1)(b), Florida Statutes (1981).
Count (14)--Whether or not Respondent failed to deliver to the owner of said property, or their agents, upon demand, the sum of $150.00 which had been delivered to him by Harmon Pinkney for July, 1981, rental and by doing so was guilty of failing to deliver money which had come into his hands, not his property, in violation of Subsection 475.25(1)(d), Florida Statutes.
Count (15)--Whether or not the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by entering into a property management transaction and pledging the credit of his employer both without the knowledge of or consent of said employer; and further, by failure to pay bills submitted by those businesses providing services and materials pursuant to the said Property Management contract after monies were paid to the Respondent for payment of said services, in violation of Subsection 475.25(1)(b), Florida Statutes. 2/
PRELIMINARY STATEMENT
Petitioner, during the course of the proceedings, presented the following witnesses: James William Bartoe, Betty Kinyon, Richard L. Kinyon, Gunn Seawell, Harmon Pinkney, Bjorn Arnback, O. L. Selling, Elizabeth Brinkman, Elizabeth Hilton, Clara Shaw, Mary Carden and Charles Carden. The Petitioner offered in series, those exhibits 1 through 24, excluding the numbers 9, 21, 22 and 23, and the exhibits were admitted with the exception of those excluded numbers. The petitioner also presented exhibits A through C, which were depositions of Johanna Haag, Reginald L. "Bud" Schmidt and Robert Lee Jenkinson.
The Respondent presented the witnesses Judith Ann Parker and David McLean and one (1) exhibit which was not allowed admission.
The following findings of fact are made based upon observation of witnesses in their demeanor while testifying; documentary evidence as presented; review of the transcript; review of the depositions offered as evidence and those proposals made by the parties. On those occasions where reference is made to the transcript of proceedings, the reference code "T" is used and the reference code "D" will refer to the depositions which were admitted as evidence.
FINDINGS OF FACT
Wilburn Earl Loftis was a registered and licensed real estate salesman at all times material hereto, licensed by the State of Florida, Florida Real Estate Commission (formerly Board of Real Estate). Respondent has been issued license number 0324028. (See Petitioner's Exhibit No. 1.)
In May of 1980, Wilburn Earl Loftis was hired as an employee with Sunbelt International Realty Corporation, Inc. (hereinafter referred to as Sunbelt), as a real estate salesman. (T. p. 33, lines 2-6; Petitioner's Exhibit No. 2.) In May of 1981, Sunbelt opened an office at 4728 Old Winter Garden Road and placed Wilburn Earl Loftis and Johanna Haag at that office. (T. p. 35, lines 13- 24; D. Haag, p. 5, lines 4-8; p. 6, lines 5-8.) Earl Loftis' duties at the office building located at 4728 Old Winter Garden Road (also known as the
Hartman Building) included overseeing the construction of additional buildings at the Hartman location and the leasing of the Hartman property. (T. p. 36, lines 6-8; p. 60, lines 15-18; D. Haag p. 7, lines 12-19.)
In leasing the property known as the Hartman Building, the Respondent, Loftis, was to obtain written leases from the tenants and he was not authorized to enter into oral leases. (T. p, 48, line 24 through p. 49, line 6.)
In July and August of 1981, Harmon Pinkney rented office space at the Hartman Building. (T. p. 72, lines 19-22; p. 106, line 25 through p. 107, line 7; D. Haag, p. 8, lines 5-9.) Mr. Pinkney rented the office space from the Respondent, but did not sign a lease nor was he requested to sign a lease, by the Respondent. (T. p. 107, lines 9-10, lines 17-25; p. 49, lines 13-15.)
In July of 1981, Pinkney paid the Respondent $150.00 in cash as rent for the month of July. (T. p. 107, lines 22-25; p. 109, lines 7-17; p. 120, lines 16-20; p. 73, line 14 through p. 74, line 4; Petitioner's Exhibit No. 11.) Further, in August of 1981, Pinkney again paid $150.00 cash to the Respondent as rent for the month of August, 1981. (T. p. 110, lines 9-12, lines 17-23; p. 110, line 24 through p. 111, line 1; D. Schmidt, p. 7, lines 5-18, lines 21-25;
p. 8, lines 1-3; p. 9, lines 2-7.) Demand was made of the Respondent, by his employer, to tender the rent money, but the demand was not honored by him.
On or about July 1, 1981, Gunn Seawell purchased a trailer park known as Andor's Mobile Home Park. (T. p. 89, line 23 through p. 90, line 3.) Around that same date, Gunn Seawell entered into a management agreement with Sunbelt whereby Sunbelt would manage Andor's Mobile Home Park for her. (T. p. 37, lines 9-25; p. 90, lines 7-19; Petitioner's Exhibit No. 4.) The Respondent signed on behalf of Sunbelt after the broker, Mrs. Kinyon, reviewed the management agreement for Andor's Mobile Home Park which included the overseeing of the daily running of the mobile home park and payment of any bills or maintenance or anything that had to do with its daily operation. (T. p. 37, lines 22-25; p. 38, lines 6-19; Petitioner's Exhibit No. 4.)
In order for Sunbelt and, more specifically, the Respondent, to oversee the daily running of the mobile home park, which included payment of bills, a checking account was set up on behalf of Andor's Mobile Home Park. The persons authorized to sign on that account were Gunn Seawell, Earl Loftis and a secretary subsequently hired by Mr. Loftis, Judy Parker. (T. p. 41, lines 4-8.) There was a provision in the management agreement that the owner's, that is Mrs. Seawell's, prior authorization was to be received in the event that a check in excess of $1,000.00 needed to be written. (T. p. 38, line 20 through p. 39, line 2; petitioner's Exhibit No. 4, line 5.)
One of the reasons that Gunn Seawell entered into the management agreement with Sunbelt was that she was preparing to leave the country on or about July 11, 1981. Just prior to her leaving, the Respondent, without the knowledge or consent of Sunbelt, had Mrs. Seawell sign a Power of Attorney appointing him as her true and lawful attorney in order to carry on the day-to- day operation of Andor's Mobile Home Park. (T. p. 40, lines 13-15; p. 91, line
4 through p. 92, line 20; Petitioner's Exhibit No. 5.)
Sometime between August 7, 1981, and August 19, 1981, three (3) checks were written on Andor's Mobile Home park's checking account. All were signed by the Respondent and his secretary, Judith Ann Parker. (Petitioner's Exhibit Nos. 6, 7 and 10.) The first of these checks, No. 117, was written to Mr. Harmon Pinkney in the amount of $2,000.00. (Petitioner's Exhibit No. 6.) This check
was written to Mr. Pinkney by the Respondent for payment of work done by Mr. Pinkney on property belonging to one Charlie Carden. (T. p. 111, line 17 through p. 112, line 6.) The check written to Mr. Pinkney by the Respondent was not for any work that was done at the mobile home park. In fact, Mr. Pinkney has never done any work at Andor's Mobile Home Park. (T. p. 112, lines 11-25.)
Mrs. Seawell never authorized the writing of the $2,000.00 check to Pinkney. (T. p. 93, lines 2-15.) Demand was made upon the Respondent by his employer for the repayment of this check into Andor's Mobile Home Park's checking account. (T. p. 66, lines 15-19.) Respondent has not repaid the money. (T. p. 95, lines 23-24; T. p. 192, lines 22-25.)
The second check issued by the Respondent on the Andor's account, check No. 119, was in the amount of $778.10 and was issued to the Gold Key Inn on August 17, 1981. (Petitioner's Exhibit No. 7.) On the same day, Respondent held a banquet at the Gold Key Inn. Present at this banquet were Mr. and Mrs. Earl Loftis, Mr. and Mrs. Bud Schmidt, Judy Parker, Bjorn Arnback, Harmon Pinkney, and Johanna Haag. Andor's Mobile Home Park was not mentioned at the banquet.
The check written by the Respondent to Gold Key Inn was not authorized by Gunn Seawell, nor has it been subsequently approved. Seawell is unaware why the check was issued, (T. p. 93, lines 16-23.)
Demand was made upon the Respondent by the office manager of Sunbelt on behalf of the broker and Mrs. Seawell for repayment of the monies written to the Gold Key Inn on Andor's Mobile Home Park's checking account. (T. p. 83, lines 9-13; T. p. 66, lines 15-19.) The money has not been repaid to Gunn Seawell or Sunbelt by the Respondent. (T. p. 95, lines 23-24; p. 192, lines 22- 25.)
The last check issued by the Respondent was in the amount of $546.00 and was issued on August 19, 1982, to Bjorn Arnback. (Petitioner's Exhibit No. 10.) On or about August 19, 1981, Bjorn Arnback was scheduled to leave for Sweden. Mr. Arnback approached the Respondent about borrowing money. On the afternoon of August 19, 1981, Mr. Arnback went to the office of Stewart Title with Judy Parker, Respondent's secretary. There he was to meet the Respondent to secure the money for his trip. Upon arriving at Stewart Title, Judy Parker, who had several checks in her possession, entered the conference room at Stewart Title. The Respondent was there attending a conference with several other persons. Ms. Parker proceeded to have the Respondent sign all checks. The Respondent then instructed Ms. Parker to give the subject check to Bjorn Arnback. The check proceeds were never intended and never became funds in exchange for services rendered by Arnback for the benefit of Seawell or her mobile home park.
Demand has been made upon the Respondent by Richard Kinyon, the office manager for Sunbelt, on behalf of Sunbelt and Andor's Mobile come Park for repayment of the monies loaned to Arnback. (T. p. 66, lines 15-19.) This money has never been repaid by Loftis to Andor's Mobile Home Park, Gunn Seawell or Sunbelt. (T. p. 95, lines 23-24; p. 192, lines 22-25.)
Mr. and Mrs. Charles Carden are the owners of realty located at 2699 West Washington Street in Orlando, Florida, which is also known as Old Winter Garden Road. (T. p. 194, lines 9-17; p. 207, line 25 through p. 208, line 4.) During the latter part of May, 1981, the Cardens were introduced to the Respondent through Mr. Carden's brother-in-law for the purpose of the Respondent
helping the Cardens develop the aforesaid property. (T. p. 194, lines 18-25; p. 208, lines 14-18.)
On or about May 26, 1981, the Respondent presented to the Cardens a management agreement between the Cardens and Sunbelt whereby their property would be developed to construct buildings on site. This management agreement was never signed. (Petitioner's Composite Exhibit No. 12.) Attached to the management agreement was a letter, also dated May 26, 1981, outlining the work to be done on the Carden property by Sunbelt International Realty. In furtherance of the arrangement, a Sunbelt Realty leasing sign with Sunbelt's telephone number and address was put out in front of the property at Respondent's direction. (T. p. 196, lines 14-22 p. 215, lines 10-17.)
The management agreement between Sunbelt and the Cardens was never authorized by Sunbelt and, in fact, had never been seen by the broker or office manager for Sunbelt until nearly a year after the fact of its preparation. (T.
p. 42, line 15 through p. 43, line 5; p. 43, lines 10-13; p. 68, lines 1-18; p. 69, lines 6-9.) The Respondent was not authorized to execute a management agreement until reviewed and approved by Mrs. Kinyon, the broker for Sunbelt. (T. p. 43, lines 17 through p. 44, line 1.) In addition, Sunbelt never authorized the Respondent to place a Sunbelt Realty sign on the Carden property and the placement of this sign without permission violated express policy by his employer. (T. p. 49, line 24 through p. 50, line 4; p. 74, lines 5-13.)
Notwithstanding the fact that the management agreement presented to the Cardens was never signed, it was understood by the Cardens that they had an oral agreement for the work to be done on the property by the Respondent on behalf of Sunbelt. (T. p. 195, line 14 through p. 196, line 3.) It was the Cardens' clear and direct understanding that Sunbelt was developing their property and that the Respondent was the associate for Sunbelt who was doing the work on behalf of Sunbelt. (T. p. 195, lines 14-17; p. 211, lines 8-12.) Respondent was to be paid a commission for development once financing had been obtained to construct the buildings. Sunbelt, meanwhile, was totally unaware that any services were being performed for the Cardens and, further, had no idea there was any agreement to do any work for the Cardens, either written or oral. (T. p. 44, lines 13-20; p. 45, lines 13-17; p. 69, lines 6-9.)
The Respondent employed various entities and individuals to do work on the Carden property. O. L. Helling, a registered land surveyor, was contacted by the Respondent to do a topographic survey of the Carden property. (T. p. 173, line 23 through p. 174, line 2.) After completing the work on the Carden property, Mr. Helling sent a $960.00 bill to the Respondent in care of Sunbelt International Realty Corporation at 4728 Old Winter Garden Road, Orlando, Florida. Helling felt that Respondent was acting as an employee of Sunbelt based upon information provided and Helling's observations. The bill was sent to Sunbelt because Mr. Selling observed that the Respondent was working with Sunbelt Realty Corporation and that he had an office at the Sunbelt location on Old Winter Garden Road. Further, there was a Sunbelt Realty sign on the Carden property surveyed. (T. p. 175, lines 3-17; Petitioner's Composite Exhibit No. 13, p. 2.) Helling was eventually paid by Sunbelt from monies unconnected with she Carden property.
In the early part of July, 1981, the Respondent requested from James William Bartoe, the owner of Consolidated Construction Consultants, approximately 1,100 yards of fill dirt at $.50 per yard. (T. p. 24, lines 14- 18; p. 25, lines 16-19.) This request by the Respondent was verified in writing by the Respondent to Mr. Bartoe on July 6, 1981. This letter was signed by
Respondent as Associate Realtor, Sunbelt International Realty Corporation, Development/Management, and was typed on Sunbelts' stationery. (T. p. 27, lines 22-25; Petitioner's Exhibit No. 14, last page thereof.) After the fill dirt had been delivered to the Carden property, Mr. Bartoe sent an invoice in the amount of $558.00 to Earl Loftis, Sunbelt International Realty Corporation, 4728 Old Winter Garden Road, Orlando, Florida. (T. p. 27, lines 22-25; Petitioner's Composite Exhibit No. 13, p. 9.) Mr. Bartoe sent the bill to Sunbelt in care of the Respondent because the July 6, 1981, letter of confirmation showed the Respondent to be an associate realtor with Sunbelt. (T. p. 28, lines 17-22; Petitioner's Exhibit No. 14, the last page thereof.) Mr. Bartoe has never been paid the amount of $558.00 due and owing for the fill dirt supplied to the Carden property. (T. p. 30, line 19 through p. 31, line 10).
Further, the Respondent contacted Ron Allen Trucking Company about supplying fill dirt to the Carden property, which was subsequently supplied.
The Respondent arranged this transaction with Robert Lee Jenkinson, who, at that time, was the manager with Ron Allen Trucking Company (hereinafter referred to as Ron Allen). (D. Jenkinson, p. 3, lines 20-22; p. 4, lines 1-3; p. 4, lines
7-14.) In working out the transaction with Ron Allen, the Respondent represented to Mr. Jenkinson that he, the Respondent, was an employee of Sunbelt. Further, he told Jenkinson that the bill for the fill dirt was to be sent to Sunbelt at 4728 Old Winter Garden Road, Orlando, Florida. Therefore, upon the representations of the Respondent, Ron Allen sent hills to Sunbelt in the amount of $1,150.00. (D. Jenkinson, p. 4, line 23 through p. 5, line 21; p. 5, line 23 through p. 7, line 1; Petitioner's Composite Exhibit No. 13; Petitioner's Exhibit No. 18; Petitioner's Exhibit No. 20.) To date, payment has not been received by Ron Allen for these bills. (T. p. 180, line 19 through p. 181, line 4; p. 186, lines 1-7.)
Respondent also arranged for Harmon Pinkney, based upon $2,000.00 payment previously mentioned, from Andor's Trailer Park, and other money, to place fill at the Carden property location. This resulted in a lien being placed on the Carden property for fill delivered by Ron Allen Trucking (not connected with the $1,150.00 billing for fill), placed by Ron Allen, as purchased from Avalon Mining, the lienor. The Cardens had to pay additional money to satisfy the Avalon lien, which funds were in addition to an amount that had already been tendered the Respondent to pay for the fill material.
On the question of development costs, Mr. and Mrs. Charles Carden paid over to the Respondent approximately $7,310.00. (Petitioner's Exhibit No. 14;
T. p. 5; p. 197, lines 8-9.) It was the Cardens' understanding that Sunbelt would receive bills for the work being done, such as the survey and fill dirt, and that the Respondent, would present bills to the Cardens for their approval and then he would pay the monies owed on the respective bills. At various times, the Cardens gave him cash or checks. (T. p. 17, lines 18-22; p. 197, line 25 through p. 198, line 4; p. 200, line 10 through p. 201, line 3; p. 201, line 15; p. 201, line 24 through p. 202, line 1; p. 204, lines 3-13; p. 211, lines 21-24; p. 212, line 16 through p. 213, line 14; p. 215, line 18 through p. 216, line 5; petitioner's Exhibits Nos. 14-17.) During this time, the Cardens were told by the Respondent that he had been paying the bills. It was not until the Cardens were contacted by one of the creditors for payment, namely Ron Allen Trucking, for Avalon Mining's claim, that the Cardens finally learned that, in fact, monies that they had paid over to the Respondent were not used to pay certain bills. (T. p. 213, line 21 through p. 214, line 7; p. 214, line 23 through p. 215, line 9; p. 216, lines 12-18.)
Sunbelt did not become aware that the Respondent had obligated Sunbelt for the numerous bills for the work done on the Carden property until after the Respondent had left the employment of Sunbelt on August 24, 1981. Sunbelt's office manager became aware of the bills while going through the files at the Old Winter Garden Road location and discovering the bills for the dirt hauling and survey. (T. p. 69, lines 14-20.) Further, Sunbelt's office manager received a telephone call from Mary Carden in the latter part of October about the Respondent seeking further payment. It was at this time that Kinyon got together with the Cardens and was shown receipts by the Cardens evidencing monies paid over to the Respondent, supposedly for payment of the bills, and learned of the extent of the Respondent's dealings on behalf of Sunbelt, causing Sunbelt to have to reimburse the Cardens $7,310.00, excluding the Cardens' payment of the Avalon lien. (T. p. 79, lines 3-21; p. 75, line 8 through p. 76, line 9; p. 214, line 23 through p. 215, line 9.) Subsequently, Sunbelt has been billed directly by the individuals and companies who performed the work, namely Helling, Ron Allen Trucking and Consolidated Contractors. As indicated before, only Helling has been paid. (T. p. 46, lines 3-22; p. 47, lines 1-10; p. 70, line 23 through p. 71, line 6; p. 72, lines 4-15.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes, and Chapter 475, Florida Statutes.
The Petitioner, in the person of counsel, has moved to strike that item filed post-hearing entitled "Resume," offered by Respondent. Upon consideration of the motion, the motion is DENIED.
Respondent issued a check on the Andor's Trailer Park trust account without the permission of Gunn W. Seawell, payable to Harmon Pinkney in the amount of 2,000.00 for purposes unrelated to the operation of the Andor's Trailer Park, and in doing so was guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, breach of trust, and was in violation of a duty imposed by law concerning the terms of the management contract entered into with Gunn Seawell on behalf of Sunbelt Realty, all in violation of Subsection 475.25(1)(b), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 1.
Respondent has failed to deliver to those persons entitled to delivery, upon demand, the said sum of $2,000.00 discussed in count 1, which had been entrusted to him in the bank account of Andor's Trailer Park and for that reason is guilty of failing to deliver money which has come into his hands and which is not his property in violation of Subsection 475.25(1)(d), Florida Statutes (1981), and he is held to the penalties set forth in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 2.
Respondent issued a check on the Andor's Trailer Park trust account without the permission of Gunn W. Seawell, payable to Gold Key Inn in the amount of $778.10, for purposes unrelated to the operation of the Andor's Trailer Park, and in doing so was guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, breach of trust, and was in violation of a duty imposed by law of the terms of the management contract entered into with Gunn Seawell on behalf of Sunbelt Realty, all in violation of Subsection 475.25(1)(b) Florida Statutes (1981), and he is held to the penalties announced
in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 3.
Respondent has failed to deliver to those persons entitled to delivery, upon demand, the said sum of $778.10, discussed in Count 3, which had been entrusted to him in the bank account of Andor's Trailer Park and for that reason is guilty of failing to deliver money which has come into his hands and which is not his property, in violation of Subsection 475.25(1)(d), Florida Statutes (1981), and he is held to the penalties set forth in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 4.
Respondent issued a check on the Andor's Trailer Park trust account without the permission of Gunn W. Seawell, payable to Bjorn N. Arnback in the amount of $546.00 for purposes unrelated to the operation of the Andor's Trailer Park, and in doing so was guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, breach of trust, and was in violation of a duty imposed by law of the terms of the management contract entered into with Gunn Seawell on behalf of Sunbelt Realty, all in violation of Subsection 475.25(1)(b), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 5.
Respondent has failed to deliver to those persons entitled to delivery, upon demand, the said sum of $56.00 discussed in Count 5, which had been entrusted to him in the bank account of Andor's Trailer bark and for that reason is guilty of failing to deliver money which has come into his hands and which is not his property, in violation of Subsection 475.25(1)(d), Florida Statutes (1981), and he is held to the penalties set forth in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 6.
Respondent collected rent money for the period July, 1981, in the amount of $150.00 from Harmon Pinkney, in the name of Respondents employer, Sunbelt international Realty Corporation, and failed to place that money with his registered employer, Sunbelt, and is guilty of failing to place with his registered employer money entrusted to him by a person dealing with him as an agent of Sunbelt, in violation of Subsection 475.25(1)(k), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 7.
For those matters as discussed in the Conclusions of Law relating to Count 7, Respondent is guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, and breach of trust and violation of a duty imposed by law, within the meaning of Subsection 475.25(1)(b), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 9.
Upon consideration of the facts, it is concluded as a matter of law, that Respondent failed to deliver to his employer, upon demand, the sum of 5150.00, which had been paid to him by Harmon Pinkney for rental for the period July, 1981, and is guilty of failing to deliver money which had come into his hands, which is not his property, in violation of Subsection 475.25(1)(d), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 10.
Respondent collected rent money for the period August, 1981, in the amount of $150.00 from Harmon Pinkney in the name of Respondent's employer, Sunbelt International Realty Corporation, and failed to place that money with
his registered employer, Sunbelt, and is guilty of failing to place with his registered employer, money entrusted to him by a person dealing with him as an agent of Sunbelt, in violation of Subsection 475.25(1)(k), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981). These conclusions pertain to Count 11.
For those matters as discussed in the Conclusions of Law relating to Count 11, Respondent is guilty of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme or device, and breach of trust and violation of a duty imposed by law, within the meaning of Subsection 475.25(1)(b), Florida Statutes (1981), and he is held to the penalties announced in Subsection 475.25(1) Florida Statutes (1981). These conclusions pertain to Count 13.
Count 14 is a restatement of the allegations as set forth in Count 10 and, being a duplication, should be dismissed.
In his dealings with Mr. and Mrs. Charles Carden on the question of the development of their property, Respondent represented himself as an agent of his employer Sunbelt International Realty Corporation, and pledged the credit of that corporation for payment of services and materials without the knowledge and consent of the employer, and caused the Cardens to pay him money ostensibly for services and materials and in turn failed to pay those bills related to services and materials with the proceeds received from the Cardens, thereby causing his employer to incur expenses for those bills, and by such actions is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick scheme or device, and breach of trust in a business transaction, in violation of Subsection 475.25(1)(b), Florida Statutes (1981), and he is held to the penalties announced in Section 475.25(1), Florida Statutes (1981), These conclusions pertain to Count 15.
In view of the facts found, the conclusions of law reached and in consideration of those other matters presented by the parties, it is
That a final order be entered which finds the Respondent guilty of those charges found in Counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 13, and 15, and dismisses Count 14, and revokes the real estate salesman's license of Respondent for the violations found in Counts 1 through 6; Counts 7, 9, 10, 11, and 13; and Count 15, considered both jointly and severally.
DONE and ENTERED this 30th day of September, 1982, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 30th day of September, 1982.
ENDNOTES
1/ The parties have offered a proposed disposition of this case. Petitioner, through counsel, has filed a proposed recommended order and the Respondent has filed his recommendations. These matters have been considered prior to the entry of the Recommended Order and to the extent that they are consistent with the Recommended Order, they have been utilized. To the extent that those matters are inconsistent with this Recommended Order, they are hereby rejected.
2/ There were two (2) additional counts in the Administrative Complaint reported as Counts (8) and (12). These counts were dismissed at the commencement of the hearing and shall not be considered in the course of this Recommended Order.
COPIES FURNISHED:
John G. DeLancett, Esquire James R. Mitchell, Esquire Post Office Box 6171-C Orlando, Florida 32853
Wilburn E. Loftis
1021 East Colonial Drive Orlando, Florida 32803
C. B. Stafford, Executive Director Florida Peal Estate Commission Post Office Box 1900
Orlando, Florida 32802
Samuel R. Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred Wilsen, Esquire Florida Real Estate
Commission
Post Office Box 1900 Orlando, Florida 32802
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION
DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA
REAL ESTATE COMMISSION,
Petitioner,
vs. CASE NO. 0017966
DOAH NO. 82-1479
WILBURN E. LOFTIS,
Respondent.
/
FINAL ORDER
This cause came before the Florida Real Estate Commission upon the Petitioner's Motion for Final Order. A formal hearing was held on August 9, 1982, which resulted in a Recommended Order filed on September 30, 1982 from Charles C. Adams, Hearing Officer of the Division of Administrative Hearings.
The Recommended Order, a copy of which is attached to this Order, is adopted and incorporated by reference in this Order as to all Findings of Fact and Conclusions of law. However, the Hearing Officer's Recommendation is accepted in part and modified in part.
It is therefore ORDERED that the Respondent be found guilty of the charges found in the Administrative Complaint in Counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11,
13 and 15. It is further ORDERED, pursuant to 475.25(1) and 455.227(2), Florida Statutes, that Respondent's license be revoked and that Respondent pay a $1000 fine for each violation of Counts 2, 4, 6, 10 and 15, for a total fine of $5000, to be paid on or before the effective date of this Order.
This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 30th day of November 1982 in Orlando, Florida.
Howard C. Babcock, Jr., Chairman Florida Real Estate Commission
| Issue Date | Proceedings |
|---|---|
| Dec. 17, 1982 | Final Order filed. |
| Sep. 30, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 1982 | Agency Final Order | |
| Sep. 30, 1982 | Recommended Order | Respondent is guilty of dishonest dealing by fraud, trick, scheme or device and of failing to deposit money/return money etc. Revoke licenses. |
