Recommendation The Hearing Officer having found factually that the Respondents did not violate the provisions of Chapter 475 Florida Statutes, as charged, recommends that no action be taken against the registration of any of the Respondents. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Spencer Fox, Esquire Suite 107, 9065 Galloway Road Miami, Florida 33176
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Cindy Realty of Hernando, Inc., and William Colello as real estate brokers. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen C. Booth, Esquire 1604 U.S. Highway 19, North New Port Richey, Florida 33552
Findings Of Fact During December of 1979, Fred H. Greene and his wife Marie L. Greene, decided to sell their residence located in St. Augustine, Florida. They listed the property with Respondent for a selling price of $55,000. Ms. Farrell holds a real estate salesman's license issued by the Florida Real Estate Commission. At all times pertinent to this case she has been so licensed. In January 1980, Ms. Farrell presented an offer to purchase the Greene's home for $50,000. They agreed to the offer and entered into a Contract for Purchase and Sale on January 15, 1980. In the course of discussing how to structure the financing of the sale, Ms. Farrell suggested that the Greenes take back a $6,000 second mortgage from the purchasers, Harry and Margaret Carlyle. Mr. Greene wanted to know from Ms. Farrell how much in proceeds he would receive when the parties closed the sale. She made the following calculations: $50,000.00 Purchase Price -$31,000.00 Greene's First Mortgage held by McCaughn $19,000.00 $19,000.00 -$ 3,562.00 ----------- $15,438.00 Commission and Closing Costs tary Stamps, Abstract Cost) (Documen- $15,438.00 +$ 8,490.00 (Six Thousand Dollars Second Mortgage ----------- and Interest thereon at 10 percent) $23,928.00 These computations are incorrect. At closing the $6,000 second mortgage was not to be part of the cash distribution to the Greenes, but, was a debit against the cash proceeds. The above incorrect calculation is the only error made by Respondent in discussing the sales transaction with the Greenes. At all times relevant the Greenes were properly apprised of all the other details concerning the sale of their house. The miscalculation was an honest mistake on the part of Ms. Farrell. There is no evidence that it was made with the intent of misrepresenting anything to the Greenes. Furthermore, there is no evidence that the miscalculation was made negligently. Neither Ms. Farrell nor the Greenes knew she had made a mistake until the closing which was held on March 24, 1980. During the closing Ms. Judy White who was the closing agent for St. Johns Title and Abstract Company began to explain to the Greenes their closing statement. Mr. Greene pushed the statement away and said, "That's not what I expected to get." The statement showed that his cash proceeds were $9,144.46. The statement properly reflected the $6,000 second mortgage as a sellers' debit. Ms. White explained the statement to Mr. Greene several times, but he still did not understand why the cash proceeds did not equal the amount computed for him by Ms. Farrell during their early discussion. Mr. Greene was visibly upset and directed several angry questions towards Ms. Farrell concerning the discrepancy. Because she felt a need to control the closing proceedings, Ms. White vigorously intervened and attempted to answer Mr. Greene's questions. Both of the buyers who were also present at the closing urged the Greenes not to sign the closing documents if they had any questions or doubts about the sale. During the closing Ms. Farrell was not aware of her original mistake in miscalculating the closing proceeds. Neither the Carlyles, Ms. Farrell or Ms. White did anything to influence Mr. Greene to execute the closing documents. During his heated discussion of the figures with Ms. White, Mr. Greene's wife repeatedly urged him to be quiet and execute the documents. At one point she said, "Oh sign it, you son-of-a-bitch." Finally Mr. Greene relented and executed all of the closing documents which were then recorded. The proceeds of the sale were then disbursed. Prior to executing the closing documents the Greenes were fully apprised of all significant financial facts concerning the sale of their home to Harry and Margaret Carlyle. During the foregoing transaction Ms. Farrell represented the Greenes as their real estate salesperson. She did not become aware of the mistake in her calculation of the closing proceeds, until she discussed the matter with her real estate sales manager after the closing. Ms. Farrell has an excellent reputation for competency in the real estate profession, both in St. Johns County where the above transaction took place and in Broward County where she is now employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Respondent, Mary P. Farrell be DISMISSED. DONE and RECOMMENDED this 18th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October,1982
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
The Issue The issue to be resolved herein concerns whether the Petitioners are entitled to an award of attorney's fees in this proceeding. Embodied in that general issue are questions concerning whether the Petitioners are the prevailing parties; whether they meet the definition of "small business" parties, including the net worth amounts, enumerated in Section 57.111, Florida Statutes, as well as whether the disciplinary proceeding against both Petitioners was "substantially justified". See Section 57.111(3)(e) , Florida Statutes.
Findings Of Fact The Respondent is an agency of the State of Florida charged with licensing and regulating the practices of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included within those duties is the duty to investigate conduct by realtors allegedly in violation of Chapter 475 and related rules and to prosecute administrative penal proceedings for which probable cause is found as a result of such investigations. At times pertinent hereto, both Ms. Maxwell and Ms. Cosyns, (then Pauline Sealey) were licensed realtors working as independent contractors for Mariner Properties, Inc. and V.I.P. Realty Inc. The complete file of the underlying proceeding DOAH Case No. 86-0140, was stipulated into evidence. That file included the Administrative Complaint filed against these Respondents and the Recommended and Final Order, which Final Order adopted the Recommended Order. The findings of fact in that Recommended Order are incorporated by reference and adopted herein. During the Petitioner's case, counsel for Petitioner voluntarily reduced the attorney's fees bills for both Petitioners such that Ms. Maxwell's bill is the total amount of $2,695.50 and Ms. Cosyns' bill is $17,200, rather than the original amounts submitted in the affidavit. Respondent acknowledged in its proposed Final Order that the fees and costs submitted by the Respondent were thus reasonable. The testimony the Petitioners presented through depositions, transcripts of which were admitted into evidence into this proceeding, was unrefuted. That testimony demonstrates that both Ms. Cosyns and Ms. Maxwell were prevailing parties in the administrative proceeding referenced herein brought by the Respondent, Department of Professional Regulation. They were individually named as Respondents in the Administrative Complaint whereby their professional licenses were subjected to possible suspension or revocation for alleged wrong doing on their part. There is no dispute that they were exonerated in that proceeding and are thus prevailing parties within the meaning of Section 57.111, Florida Statutes. The Petitioners are also "small business parties". In that connection, they both were independently licensed Real Estate professionals during times pertinent to the underlying proceeding and were acting in the capacity of independent contractors for all the activities with which the administrative complaint was concerned. Each established that her net worth is below the limit provided by Section 57.111 as an element of the definition of "small business party". The reasonableness of the fees having been established in the manner found-above and the Petitioners having established that they meet the definitional requirements of prevailing small business parties, there remains to be determined the issue of whether the proceedings against the two Petitioners were "substantially justified", that is, whether the proceeding had a "reasonable basis in law and fact at the time it was initiated by a State agency." See Section 57.111(3)(e), Florida Statutes. The facts concerning each Petitioner's case regarding the three counts of the Administrative Complaint relating to them are as found in the Recommended Order incorporated by reference herein. Respondent Maxwell was charged in the complaint with having worked in conjunction with an office manager, Mr. Hurbanis of V.I.P. Realty, in conspiring with him to submit a fraudulent real estate sales contract to a lending institution for purposes of financing. This allegedly involved submitting a contract to the lending institution with an inflated purchase price in order to secure one hundred percent financing, the scheme being more particularly described in that portion of the findings of fact in the Recommended Order related to Jean Maxwell. In fact, Ms. Maxwell did not work in the realty office as charged in the Administrative Complaint, but rather was employed by Mariner Properties, which may have been a related company. The contract in question, although alleged to be fraudulent was, in fact, a bona fide contract which was a legitimate part of the Real Estate transaction submitted to the bank for financing purposes, about which the bank was kept fully advised. All details of the transaction were disclosed to the lender. Maxwell was specifically charged with concealing the true contract from the lender in order to enhance the percentage of the purchase price that the bank would finance, done by allegedly inflating the purchase price in a second contract submitted to the bank. It was established in the disciplinary proceeding that no such concealment ever took place. In fact, Ms. Maxwell was purchasing a lot from her own employer, Mariner Properties. Two contracts were indeed prepared for the purchase of Lot 69, a single family lot on Sanibel Island. In fact, however, the difference of $42,875 and $49,500 in the stated purchase price, as depicted on the two contracts, was the result of continuing negotiations between Ms. Maxwell and the seller, who was also her employer. The difference in the two prices depicted on the contracts was the result of, in effect, a set-off to the benefit of Ms. Maxwell, representing certain employee discounts and real estate commission due from the employer and seller to Ms. Maxwell, the purchaser. As Petitioners' composite Exhibit 5 reflects, the lender involved, North First Bank of Ft. Myers, Florida, was fully apprised of all the details concerning this transaction at the time it was entered into and the loan commitment extended and closed. Mr. Allan Barnes, the Assistant Vice President of North First Bank revealed, in the letter contained in this exhibit in evidence, that there was no concealment or misrepresentation of the facts to his institution by Ms. Maxwell. This letter is dated April 18, 1984. The other related letter in that exhibit, of May 2, 1984 from attorney Oertel to attorney Frederick H. Wilson of the Respondent agency, thus constitutes notice to the agency well before the complaint was filed, that no concealment or misrepresentation to the lender involved had occurred and the charges were requested to be dismissed. In spite of the fact that the agency was on notice of this turn of events well before the filing of the Administrative Complaint, it proceeded to file the complaint and to prosecute it all the way up to the date of hearing, requiring Ms. Maxwell's attorney to attend the hearing to defend her interests. At the hearing, counsel for the Department acknowledged that there was no basis for prosecuting Ms. Maxwell and voluntarily dismissed the complaint as to her. The Respondent's witness, Investigator Harris, in his deposition taken September 11, 1984, acknowledged that he did not discuss any details concerning the investigation, with attorney Frederick Wilson, who prepared the complaint, nor did he confer with him by telephone or correspondence before the filing of the complaint. Therefore, the complaint was prepared solely on the basis of the investigative report. The investigative report came into evidence as Respondent's Exhibit 1. It reveals that Mr. A. J. Davis the president of Mariner Group and Mariner Properties, who was Jean Maxwell's employer and the owner of the lot in question, signed one contract and his Executive Vice President signed the other. In spite of this, the investigative report does not reveal that the investigator conferred with either Ms. Maxwell, or the sellers concerning this transaction. He conducted a general interview of A.J. Davis concerning the alleged "problem" in his office of "double contracting," but asked him no questions and received no comment about the Jean Maxwell transaction whatever. Nor did the investigator confer with Mr. Allen Barnes or any other representative of North First Bank. If the investigation had been more complete and thorough, he would have learned from Mr. Barnes, if from no one else, that the bank had knowledge of both contracts and all details of the transaction underlying them and there had been no concealment or misrepresentation of the facts regarding the transaction by Ms. Maxwell. This information was learned by attorney Oertel as early as April 18, 1984 by Mr. Barnes' letter, referenced above, and it was communicated to the agency by Mr. Oertel on May 2, 1984. Nevertheless, the complaint was filed and prosecuted through to hearing. Therefore, the prosecution and filing of the Administrative Complaint were clearly not substantially justified. If the Department had properly investigated the matter it would have discovered the true nature of the transaction as being a completely bona fide real estate arrangement. Former Respondent, Pauline Sealy Cosyns was charged with two counts, III and V, in the Administrative Complaint at issue. One count alleged, in essence, that Ms. Sealey had engaged in a similar fraudulent contract situation regarding the sale of her residence to a Mr. and Mrs. Thomas Floyd. The evidence in that proceedings revealed no concealment of any sales contract occurred whatever with regard to the lending institution or anyone else. The facts as revealed at hearing showed Ms. Cosyns and the Floyds, through continuing negotiations after the original sales contract was entered into, amended that contract and executed a second one, in order to allow Ms. Cosyns to take back a second mortgage from the Floyds. This was necessary because Mr. Floyd, an author, was short of the necessary down payment pursuant to the terms of the original contract, because his annual royalty payment from his publishers had not been received as the time approached for closing. The second contract was executed to allow for a second mortgage in favor of the seller, Ms. Cosyns, in order to make up the amount owed by the Floyds on the purchase price agreed upon, above the first mortgage amount. The testimony and evidence in the disciplinary proceeding revealed unequivocally that the lending institution, Amerifirst Mortgage Company, was fully apprised of the situation and of the reason for the two contractual agreements. The $24,000 second mortgage in question is even depicted on the closing statement issued by that bank. There was simply no concealment and no effort to conceal any facts concerning this transaction from the lender or from anyone else. The investigation conducted was deficient because the investigator failed to discuss this transaction with the lender or with the purchasers. He discussed the matter with Ms. Sealy-Cosyns and his own deposition testimony reveals, as does his investigative report, that he did not feel that he got a complete account of the transaction from her. She testified in her deposition, taken prior to the instant proceeding, that she indeed did not disclose all facts of the transaction to him because she was concerned that he was attempting to apprehend her in some "legal impropriety". Therefore, she was reluctant to be entirely candid. The fact remains, however, that had he conducted a complete investigation by conferring with the lender and the purchasers, he would have known immediately, long before the Administrative Complaint was filed and the matter prosecuted, that there was absolutely no basis for any probable cause finding that wrong-doing had occurred in terms of Section 475.25(1)(b), Florida Statutes. Thus, the facts concerning the prosecution as to Count III against Pauline Sealy-Cosyns, as more particularly delineated in the findings of fact in the previous Recommended Order, reveal not only that Ms. Cosyns was totally exonerated in the referenced proceeding, but that there was no substantial basis for prosecuting her as to this count at all. Concerning Count V against Ms. Cosyns, it was established through the evidence at the hearing in the disciplinary case that she was merely the listing agent and did not have any part to play in the drafting of the contract nor the presenting of it to the lender. Because there was no evidence adduced to show that she had any complicity or direct involvement in any fraudulent conduct with regard to the transaction involved in Count V of the Administrative Complaint at issue she was exonerated as to that count as well. It is noteworthy here that a statement was made by counsel for the agency, appearing at pages 20 and 21 of the transcript of the proceeding involving the Administrative Complaint, which indicates that the agency, based upon its review of certain documents regarding Counts III and V, before hearing, felt that indeed there might not be a disputed issue of material fact as to Mrs. Cosyns. The agency, although acknowledging that a review of the documents caused it to have reason to believe that it was unnecessary to proceed further against Ms. Cosyns nevertheless did not voluntarily dismiss those counts and proceeded through hearing. Be that as it may, the investigation revealed that Ms. Cosyns acknowledged that she knew that there were two contractual documents involved, but the investigation also revealed that Ms. Cosyns was only the listing agent. The selling agent was Mr. Parks. The investigation revealed through interviews with Ms. Cosyns, Mr. Parks and Mr. Hurbanis, the office Manager of V.I.P. Realty, that Ms. Cosyns, as listing agent, was merely present when the offer from the buyers was communicated to the office manager, Mr. Hurbanis, and ultimately to the sellers, the Cottrells. There was no reason for the investigator to believe that Ms. Cosyns had anything to do with the drafting of the contracts nor with the communication of them to the lending institution involved. That was done by either Mr. Parks or Mr. Hurbanis or by the buyers. The investigation (as revealed in the investigative report) does not show who communicated the contract in question to the lender. The investigation was simply incomplete. If the investigator had conferred with the buyers, the sellers and especially the lender, he could have ascertained-whether the lender was aware of all the facts concerning this transaction and whether there was any reason to believe that Ms. Cosyns had anything to do with the arrangement and the details of the transaction. It was ultimately established, by unrefuted evidence at hearing, that indeed Ms. Cosyns did not have anything to do with the transaction, nor the manner in which it was disclosed to the lender. The fact that she was aware that two contracts had been prepared did not give a reasonable basis for the investigator to conclude that she had engaged in any wrong-doing. The report of his interviews with Ms. Cosyns, Mr. Hurbanis and Mr. Parks, as well as Donna Ross, does not indicate that he had a reasonable basis to conclude that Ms. Cosyns had engaged in any fraudulent conduct with regard to the transaction, including the conveyance of a bogus contract to the lending institution involved, nor for that matter, that Mr. Hurbanis or Mr. Parks engaged in such conduct. In order to ascertain a reasonable basis for concluding whether Ms. Cosyns was involved in any wrongful conduct, he would have had to obtain more information than he did from these people or confer with the lender, the buyer or the seller, or all of these approaches, before he could have a reasonable basis to recommend to the prosecuting agency that an Administrative Complaint be filed against her concerning this transaction. In fact, he did not do so, but the Administrative Complaint was filed and prosecuted through hearing anyway, causing her to incur the above-referenced attorney's fees. It thus has not been demonstrated that there was any substantial basis for the filing and prosecution of Count V of the Administrative Complaint against Ms. Cosyn. Thus she is entitled to the attorneys fees referenced above with regard to the prosecution of the Administrative Complaint in question.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
The Issue Whether Respondent's License No. 0003558 as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined for violation of Section 475.25(1)(e), Florida Statutes. Petitioner served a copy of its Administrative Complaint, Explanation of Rights, and Election of Rights upon the Respondent at the last address he had registered with the Commission, i.e., 6800 W. 16th Avenue, Hialeah, Florida 33014, by registered mail on July 31, 1975. Respondent executed the "Election of Rights" form in which he requested a hearing, on August 19, 1975, and returned it to Petitioner. On December 5, 1975, Petitioner mailed a copy of Notice of Hearing to the Respondent by registered mail to the same address. It was returned by the U. S. Post Office to Petitioner with the notation "Moved, Left No Address" (Exhibit 1). Accordingly, it was considered that Petitioner had complied with applicable requirements concerning notice and, the Respondent not being present at the time of hearing, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent received his registration as a real estate salesman on June 18, 1973, and has been continuously registered with Petitioner since that date (Exhibit 2). An Information filed by the State Attorney of the Eleventh Judicial Circuit of Florida, Number 73-3060, charged Respondent with nine counts of violating Section 832.05(3), Florida Statutes, by nine worthless checks in the amount of $50.00 each which were unlawfully drawn, made, uttered, issued or delivered to Winn Dixie Stores, Inc., during the period December 27, 1972 to January 8, 1973. A similar Information, Number 73-2663, was filed with respect to four checks to the Grand Union Company during the period October 18, 1972 through October 24, 1972 in the same amounts (Exhibits 3, 5). On September 13, 1973, Respondent pleaded guilty to the charges filed against him in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and an Order Withholding Adjudication was issued in Case No. 73-3060, finding the Respondent guilty based upon the entry of a guilty plea to the charge of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $50.00 (nine counts) and withholding adjudication of guilt. On the same date, the same court issued another Order Withholding Adjudication of guilt in Case No. 73-2663 for the four fifty dollar checks involved therein (ExhibitS 4, 6).
Recommendation That the registration of Leonard H. Balkan as a real estate salesman be suspended for a period of two years. DONE and ENTERED this 3rd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Leonard H. Balkan Louis B. Guttmann, III, Esquire 6800 West 16th Avenue 2699 Lee Road Hialeah, Florida 33014 Winter Park, Florida
The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
