The Issue The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.
Findings Of Fact At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can." Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December 14 closing. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000. ENTERED this 23 day of May, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Attorney Raymond O. Bodiford P.O. Box 1748 Orlando, FL 32802 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, John L. Nuccitelli, is a licensed real estate broker, having been issued License Number 0064764, and he was so licensed at all times material to the issue in this proceeding. On August 20, 1979, an arrest warrant was issued in Lancaster County, South Carolina, directing that the Respondent be arrested on the charge of possession of marijuana with intent to distribute, in that he flew into the Lancaster County Airport in a Douglas DC4 four engine aircraft with approximately 131 bales of marijuana. The Respondent was subsequently indicted for this offense, and on December 4, 1979, he was found guilty in the Court of General Sessions in and for Lancaster County, South Carolina, of the crime as charged. Thereafter, the Respondent was sentenced to imprisonment for a term of five years, and a fine of $5,000, with the provision that the prison term would be reduced to probation for five years upon payment of the $5,000 fine. On July 29, 1982, the Respondent having paid the fine imposed and having fulfilled the conditions of his probation, the Court entered its Order relieving the Respondent from the sentence previously imposed, and discharging him from further probation. The Respondent had not been involved with the law prior to the incident in question, and has not been so involved since this incident. He realizes that he made a serious mistake, one which has adversely affected both himself and his family. He is the sole support of his wife and five children, and he has only done work in the real estate field since leaving the Air Force. The Respondent and his wife have been married eight years. They have two children of their own, and three children by a prior marriage. The Respondent is a caring husband and father. He is trusted by those persons in the community who know him.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that License No. 0064764 held by the Respondent, John L. Nuccitelli, be REVOKED. THIS RECOMMENDED ORDER entered on this 1st day of November, 1982. WILLIAM B. THOMAS, 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 1st day of November, 1982. COPIES FURNISHED: John L. Huskins, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Richard J.R. Parkinson, Esquire 603 East Central Boulevard Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact In his application for registration as a real estate salesman John J. Hurley, Respondent, answered "yes" to question nine regarding arrest, and completed the "State details in full" space with "speeding ticket in January, 1973; paid fine; other misc. non-moving traffic violations." Exhibits 2, 3, and 4 showed that in August, 1963 Respondent was charged with conspiracy to commit a robbery and accessory after the fact to robbery; in February, 1964 he was arrested for armed robbery; in August, 1965 he was arrested for grand larceny. In testifying in his own behalf Respondent acknowledged that the allegations of arrests were true and that he realizes that he should have truthfully answered question nine. In explanation for failing to do so Respondent stated this was a chapter of his life that caused him great embarrassment and problems and at the time he submitted his application he could not have written of those arrests. With respect to the first two arrests in 1963 and 1964 he was the victim of Captain David Helman, a Miami detective who was subsequently removed from the police force for committing robberies and pinning them on others. Respondent was acquitted of both of those charges and they caused him difficulties and embarrassment for many years. With respect to the charge of grand larceny in 1965 Respondent acknowledged stupidity in believing his friend who told him he had bought the TV set from the motel. When brought to trial he pleaded guilty to petit larceny and adjudication of guilt was withheld. Respondent has never activated his real estate salesman's registration. He owns a bookstore in Coral Gables and serves on the board of directors of his church. He holds an insurance salesman's license and a security salesman's license issued by the SEC. Following his acquittal and withhold adjudication of guilt he discussed the matter with his attorney and, as a result of the discussion, he felt he could henceforth decline to elaborate on that chapter of his life.
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 5th day of December, 1989.
Findings Of Fact At all times relevant hereto, respondent, Carol Wheeler, held real estate salesman license number 0095135 issued by petitioner, Department of Professional Regulation, Division of Real Estate. When the events herein occurred, respondent was using her license with various real estate firms in Orlando, Florida. On or about May 30, 1983, while employed as a salesman for Ralph Associates, Inc., respondent solicited and obtained a contract for sales and purchase from Evelyn B. Carper to purchase a mobile home in Ocoee, Florida, from Robert and Buelah Black. In accordance with the contract, Carper gave Wheeler a $1,000 cash deposit to be held in escrow pending the sale. The deposit was placed in the escrow account of Ralph Associates, Inc. The contract called for a closing date of May 23, 1984, or almost one year after the contract was executed, so that Carper would have time to "accumulate funds" necessary for the closing and to arrange suitable financing on the property. On November 12, 1983, Wheeler visited Carper's place of employment and requested an additional $1,000 in cash. She said this was necessary because she was taxing the money to an attorney's office to get the transaction "moving," and because the closing would be held within a few weeks. She also instructed Carper to leave the payee blank on the check since she did not know to whom the check would be tendered. Carper obliged and gave Wheeler a check in the amount of $1,000. Wheeler took the check, inserted her name as payee, and converted the same to cash. The proceeds were never deposited in any broker's escrow account, and were never used in - connection with the Carper transaction. The transaction never closed since Carper was unable to obtain the necessary financing. Carper's original $1,000 deposit was returned by Ralph Associates, Inc., but despite repeated demands, Wheeler has never returned the $1,000 given to her by Carper in November, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 475.25(1)(b and (k), Florida Statutes. It is further recommended that respondent's real estate salesman license be REVOKED and that a $500 administrative fine be imposed pursuant to Subsection 475.25(1), Florida Statutes. DONE and ORDERED this 2nd day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1985. COPIES FURNISHED: Ms. Carol Wheeler c/o Sterling Wheeler 309 Lawsona Drive Orlando, FL 32803 James R. Mitchell, Esq. P. O. Box 1900 Orlando, FL 32802
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2010.
Findings Of Fact At all times material hereto, Respondent has been a licensed real estate salesman in the state of Florida having been issued License No. 0341212. The last license issued to Respondent is delinquent, and Respondent's license is in an involuntary inactive status. On or about October 28, 1986, the Respondent, while holding a delinquent involuntary inactive license as a salesman in the employ of KSP Real Estate Corporation and Mortgage Services (hereinafter "KSP"), did prepare an offer to purchase (a sales contract) on behalf of Emma L. Brown, Mary L. Howard and Betty F. Howard, as purchasers, for certain real property which was listed for sale with Lucy Charles of Homes by Charles of South Florida. Respondent received in trust $500 as an earnest money deposit which was to be placed in the KSP escrow account. In connection therewith, Respondent represented in the sales contract that, as president of KSP, he was acting as an escrow agent and that the $500 was to be held in escrow pending the outcome of the transaction. KSP is not and has not been a corporation registered as a broker with the Department of Professional Regulation, Division of Real Estate. Although the contract called for a closing within 120 days from the delivery of the abstract, the transaction did not close. At no time was the $500 placed in a KSP escrow account as was represented in the sales contract Respondent prepared. Respondent expected to be paid all or part of $2,640 as compensation for his services, calculated as 3% of the sales price of $88,000, as reflected in the sales contract. Respondent prepared and presented the sales contract offer to Lucy Charles of Homes by Charles representing himself to be a real estate broker. The purchasers had previously submitted an offer on the same property through Rickenback Associates, Inc. That offer was not contingent on FHA financing and on the purchasers refinancing their current home. When they showed that offer to their long-time friend, the Respondent, he prepared the sales contract in question in an attempt to re-negotiate the purchasers' then- outstanding offer so they could obtain the terms they wanted which had not been included by Rickenback Associates, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I and II of the Administrative Complaint and suspending Respondent's real estate salesman license for a period of six (6) months. DONE and RECOMMENDED this 15th day of March, 1988, 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 15th day of March, 1988. COPIES FURNISHED: Darlene F. Keller, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth A. Ratliff 813 Northwest 107th Street Miami, Florida 33168 James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint, and that his real estate salesman license be REVOKED. DONE and ORDERED this 27th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of January, 1986. COPIES FURNISHED: Susan J. Hartmann, Esquire P. O. Box 1900 Orlando, Florida 32802 Mr. Dennis R. Bell FCI, ECU-2 P. O. Box 2000 Lexington, Kentucky 40511 Salvatore Carpino, Esquire 130 N. Monroe St. Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson St. Orlando, Florida 32801
The Issue An Administrative Complaint dated May 20, 1998, alleges that Respondent James Collins, violated Section 475.25(1)(m), Florida Statutes, when he falsely stated on an application for licensure that he had never pled guilty to, nor was convicted of a crime. The issue for disposition is whether that violation (obtaining a license by means of fraud, misrepresentation, or concealment) occurred, and if so, what discipline is appropriate.
Findings Of Fact James Collins has been an active real estate salesperson in Florida since July 28, 1994, having been issued license No. 0614229. On his application for licensure dated January 22, 1994, Mr. Collins answered "no" to this question no. 9: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In addition, he executed this affidavit statement on the application form: . . . The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. The response by Mr. Collins to question no. 9 failed to disclose that on September 18, 1978, he pled guilty to possession of not more than 5 grams of cannabis, a misdemeanor. His plea was in writing and he did not attend court. On September 21, 1978, he was adjudged guilty and sentenced to pay a fine of $495, plus costs totaling $37.75. His attorney paid the fine. The plea was the outcome of Mr. Collins' arrest for possession of controlled substance, Section 893.13, Florida Statutes, on April 21, 1978, at the Orlando International Airport. He was 28 years old at the time of arrest and 29 years old upon sentencing. At hearing, Mr. Collins' explanation of his arrest was that he and some friends were at the airport getting ready to fly to Ft. Lauderdale. The security check lady found a "little bit of marijuana," "less than a tenth of a gram of marijuana," in his carry-on bag. He was arrested and put in a holding room at the airport and did not make the flight to Ft. Lauderdale. He also explained that he was on crutches after having broken his hip playing racquetball and was taking pain medication. Mr. Collins further explained that he contacted an attorney, James Russ, a friend of the family, who wanted $10,000 to "make it go away." Mr. Collins did not have that money so he contacted another attorney, Richard Rhodes, who advised him to plead guilty. According to Mr. Collins, he remembered none of this incident until confronted by the Division of Real Estate. Then, in 1997, at the invitation of a Division staff person, Ms. Atkinson, Mr. Collins wrote a letter explaining the circumstances. His letter, dated December 16, 1997, tells a somewhat different story from that given at the hearing: . . . I was charged with possession of 1/10 of a gram of cannabis that was on the ground beside me and about 1000 other people, O.I.A. [illegible]. My attorney, James M. Russ told me just to plead guilty to possession of less than 5 grams of cannabis. It would be a lot cheaper than going to court. He told me to just forget about this and go on with your life and that is exactly what I have done. I paid a fine-no probation. I never even went to court. The only person I saw was James Russ and that is exactly what I've done until your letter came. (Petitioner's Exhibit No. 4.) . . . Except for the amount of marijuana, the police report was more consistent with Mr. Collins' letter than with his account at the hearing. That is, according to the apprehending officer, Mr. Collins fled a search of his shoe, ran to the airport main entrance and starting shaking a bag of marijuana on the sidewalk, where he was apprehended. A letter from attorney Richard Rhodes and the written plea document confirm that it was Mr. Rhodes, not James Russ, who represented Mr. Collins in the airport matter. Mr. Collins averred that he simply forgot the arrest and plea when he filled out his licensure application. In explaining the oversight he also added that he felt comfortable with his "no" answer because he had passed the FBI fingerprint check. Mr. Collins' explanations of the circumstances of his arrest and subsequent guilty plea are inconsistent and evasive. His lack of candor in these matters contributes to the non- credibility of his excuse that he simply forgot the incident altogether when he was filling out his licensure application. In recent years Mr. Collins has been active in his church and his daughter's school. She is 16 years old and he is her sole support, as her mother, his wife, died 7 years ago. In the 4 1/2 years that he has been licensed there have been no other complaints related to Mr. Collins' practice of real estate.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Florida Real Estate Commission enter its Final Order finding that Respondent violated Section 475.25(1)(m), Florida Statutes, and revoking his real estate license. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Frederick Wilsen, Jr., Esquire Gillis and Wilsen 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Center Tallahassee, Florida 32399
The Issue Whether the Respondent's Florida real estate license should be disciplined because the Respondent was guilty of false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent is guilty of operating Bellwether Developments, Inc. as a broker, without holding a valid license as a broker in violation of Subsection 475.25(1)(a), Florida Statutes. Whether the Respondent is guilty of failure to account or deliver a share of a commission in violation of Subsection 475.25(1)(d)1, Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. The Respondent, Joseph C. McAuliffe, is now and was at all times material hereto a licensed real estate broker in the State of Florida. He was issued license number 0260690 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker percentBellwether Realty, 526-A Emmett Street, Kissimmee, Florida 34741. On January 9, 1990, and August 9, 1990, Respondent in his own capacity and as the chairman and secretary of Bellwether Development, Inc. (not licensed) entered into written contracts to sell four lots to Jerry P. and Kimberly M. Wray. Pursuant to addendum II of the contracts and the agreement dated January 25, 1990, the Respondent agreed to resell the lots within one year at minimum prices of $16,000; provide the buyers with reimbursement for the total closing cost of $689.08 on three lots; and reimburse the buyers for the monthly payments and any other ordinary and necessary expenses related to the lots. Additionally, if no sale were made by Bellwether, the Respondents agreed to buy back the lots and to provide the buyers a 25 percent return on their investment. The Respondent breached the contracts and the January 25, 1990 agreement by failing to sell the lots or repurchase the lots in accordance with the written agreement. Afterward the buyers lost title to the lots as a result of actions in foreclosure. On February 26, 1992, the buyers filed a civil complaint against the Respondent and Bellwether Development, Inc. based, inter alia, on breach of contract, fraud, constructive fraud, and misrepresentation. On July 14, 1993, the Circuit Court in St. Lucie County entered a judgment against the Respondent individually and as an officer of Bellwether Development, Inc. for damages of $67,542.70. The Respondent has failed to satisfy the $67,542.70 judgment or to otherwise pay the money claimed by the buyers, and said debt remains outstanding. Beginning October, 1987 through January, 1989, the Respondent registered Bellwether Realty, Inc., Bellwether Management, Inc. and Bellwether Development, Inc. with the Secretary of State. On October 14, 1987, and on January 18, 1989, Respondent registered Bellwether Realty, Inc. and Bellwether Management, Inc. with the Petitioner. According to Petitioner's official records Respondent maintained a licensed office located at 526A Emmett Street, Kissimmee, F lorida for Bellwether Realty, Inc. and a licensed office located at 200 Albany Avenue, Stuart, Florida for Bellwether Management, Inc. On or about October 9, 1992, the Secretary of State involuntarily dissolved Bellwether Realty, Inc. and Bellwether Development, Inc. for failure to file an annual report. The Respondent was an officer of both corporations. The Respondent operated Bellwether Development, Inc. as a brokerage without a valid license. In late 1990, Annkarol Cemer was employed through Bellwether Realty, Inc. to solicit and negotiate sales contracts. On August 31, 1990, the Respondent, in dissolving that relationship, agreed to pay Annkarol Cemer $4,647.50 in real estate sales commission and $1,000 vacation pay by December 31, 1990. After December 31, 1990, Annkarol Cemer demanded the payment of the $4,647.50 in commissions owed and $1,000 in vacation pay. Respondent received and kept those commissions and refused to share the commission with Cemer. On February 25, 1993, Cemer obtained a Final Judgment in the County Court of St. Lucie County, Florida in the amount of $6,422.60 against Respondent individually and Bellwether. Said judgment remains outstanding.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondent be found guilty of violating the aforementioned statutes, as charged in the Administrative Complaint, and that his real estate license be suspended for two years. It is further RECOMMENDED that Respondent McAuliffe be fined $1,000.00, payable within 30 days of the entry of a final order, and such other and further conditions as the Commission deems just and reasonable. DONE AND ORDERED this 15th day of November, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of November, 1994. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-17. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Joseph C. McAuliffe, Jr. 3846 S.W. Savoy Drive Palm City, Florida 33990 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0702
