The Issue An Administrative Complaint dated June 20, 1997, alleges that the Respondents, Dessie B. Castell and A. Plus Service Network Realty, Inc., violated certain provisions of Chapter 475, Florida Statutes, and Rule 61J2-10.032(1), Florida Administrative Code, by failing to notify the Florida Real Estate Commission within 15 business days of a good faith doubt as to appropriate disbursement of trust funds in an escrow account, and by failing to maintain those trust funds until disbursement was properly authorized. The issues for determination are whether those violations occurred and, if so, what discipline should be imposed upon the licensees.
Findings Of Fact Respondent Dessie B. Castell is, and was at all material times, a licensed real estate broker in Florida, having been issued license number 0342283 in accordance with Chapter 475, Florida Statutes. Ms. Castell is owner, president and qualifying broker of A. Plus Service Network Realty, Inc., which corporation is registered and licensed in accordance with Chapter 475, Florida Statutes, at 901 Mock Avenue, Orlando, Florida. Ms. Castell negotiated a contract for sale and purchase of a home at 638 18th Street in Orlando, Florida. Rosemary Jackson was the proposed buyer and Valerie Crane, trustee, was the seller. At the time of the contract dated June 26, 1996, Ms. Castell had already been working with Rosemary Jackson and held a $500.00 escrow deposit from Ms. Jackson in her broker’s escrow account. Also, at the time of the contract on June 26, 1996, Ms. Jackson had been pre-qualified for an FHA loan through ESD Lending Corporation, Inc. The contract for sale and purchase between Ms. Jackson and Ms. Crane established July 2, 1996, as the closing date. Ms. Jackson liked the house and needed to move in quickly. The contract failed to close on July 2, 1996. Both Ms. Jackson and Ms. Castell understood that the ESD lending Corporation did not have an approved appraisal required by FHA for the loan. There was an appraisal done on the property for a previous prospective buyer and Ms. Crane furnished that appraisal to ESD before July 2, 1996. Ms. Crane’s own testimony was confused and conflicting as to whether the appraisal she furnished was approved. Ms. Jackson’s and Ms Castell’s testimony was clear and credible that they were never informed that the appraisal was approved, and Ms. Castell did not receive the HUD settlement papers required for closing. Soon after July 2, 1996, someone came to Ms. Jackson’s workplace identifying himself as a representative of Ms. Crane and offering to extend the closing and to provide a refrigerator and some other items. Ms. Jackson was suspicious of this person as she felt that he was trying to circumvent the mortgage company staff with whom she had been dealing. Ms. Jackson had looked at another house earlier that she did not like as well as the house offered by Ms. Crane; but since she needed to move quickly, Ms. Jackson told Ms. Castell to transfer her escrow deposit to a contract on this prior house. Ms. Castell did that on July 5, 1996, and that contract closed shortly thereafter. On July 6, 1996, Ms. Crane faxed to Ms. Castell a letter offering to add the refrigerator and to extend closing to the next Friday. The letter asked that the offer be accepted by 5:00 p.m. on that same day, the 6th or if not accepted, that the $500.00 deposit be released to Ms. Crane. When she received no response, Ms. Crane sent another letter to Ms. Castell on July 13, 1996, demanding the $500.00 escrow deposit, reiterating that Ms. Jackson forfeited her deposit when she did not close on the property after qualifying for the loan and reminding Ms. Castell of her obligation as escrow agent pursuant to Section 475.25, Florida Statutes, in the event of a dispute over the deposit. Ms. Crane sent a copy of her letter to the Florida Real Estate Commission. Ms. Castell and her company did not notify the Florida Real Estate Commission regarding a dispute over the $500.00 escrow deposit. She felt that it was Ms. Crane’s failure to provide an approved appraisal that caused the contract to expire on July 2, 1996, and thereafter, that she and the buyer were entitled to transfer the funds to another contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department of Business and Professional Regulation enter a final order dismissing the administrative complaint in this case. RECOMMENDED this 16th day of February, 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Dean F. Mosley, Esquire McCrary & Mosley Suite 211 47 East Robinson Street Orlando, Florida 32801 Henry M. Solares, Division Director 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 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times here involved Bernard L. Barker was a real estate broker registered by the Florida Real Estate Commission. The facts involved herein were undisputed. Bernard L. Barker was one of the famous, or infamous, "plumbers" involved in the break-in of the Democratic National Committee Headquarters at the Watergate Hotel in Washington, D. C. prior to the 1972 presidential election. Exhibit 1, Judgment of the U.S. District Court for the District of Columbia shows he pleaded guilty and was so adjudicated on March 23, 1973 of the offenses of conspiracy, burglary, unlawful endeavor to intercept oral and wire communications, and unlawful possession of intercepting devices. Exhibit 2, Bench Docket of the Criminal Court of Record, Dade County, shows that on November 1, 1972 Respondent was convicted of unlawful use of a notary seal and sentenced to 60 days imprisonment which was suspended upon 60 days probation. Respondent freely admitted his part in the Watergate caper and that in so doing he was working under the direction and supervision of U.S. Governmental officials. He has worked for the C.I.A. off and on for many years and was instrumental in organizing the forces involved in the Bay of Pigs invasion. During this period Barker met Howard Hunt who was his, Barker's, superior in the C.I.A. Respondent was contacted by Hunt around 1970 to organize a group for a national security mission to discover the source of leaks of classified information believed to be reaching the Soviets. When this group was organized Barker was in contact with Gordon Liddy who had an office in the White House. He met and talked to Liddy in his White House office. At the time of the Watergate break-in Respondent believed he was engaged in undercover work for the U.S. Government and he was certainly working under the direction of an employee of the U.S. Government. With respect to the deposit of checks in his escrow account that were not connected to a real estate transaction, Respondent freely admitted the deposit, not only of the $25,000 check alleged in the Information, but also four additional checks drawn on a Mexican bank with the total amount deposited amounting to $118,000. The purpose of the deposit was to "launder" the funds that were used in the break-in of the psychiatrist's office in California in the Ellsberg affair, as well as funds for the Watergate caper. It was in connection with the deposit of the $25,000 check that Respondent, after being assured by Liddy that the check was good and would be honored when presented for payment, placed the notary seal on the check. This resulted in his being convicted (Exhibit 2) of a misdemeanor in the second degree and placed on probation for 60 days. In these operations Respondent was operating under the direction and supervision of Hunt and Liddy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents be found guilty of violating Subsection 475.25(1)(d), Florida Statutes, and that each be given a public reprimand. It is further RECOMMENDED that the portion of the administrative complaint alleging that Respondents violated Subsection 475.25(1)(b), Florida Statutes, be DISMISSED. DONE and ENTERED this 21st day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982.
The Issue Whether the application of Lexington for registration as an investment adviser and the application for registration of John B. Waymire should be approved?
Findings Of Fact The Department's Division of Securities and Investor Protection is charged with the administration and enforcement of Chapter 517, Florida Statutes, the Florida Securities and Investor Protection Act. Lexington filed an application for registration as an investment adviser in the State of Florida. The application was filed on May 30, 1985. At the time the application was filed Lexington was known as Amvest Capital Management, Inc. The application was accompanied by an application for registration of John B. Waymire, as principal. By letter dated June 7, 1985, the Department notified Lexington that its application was deficient in 3 ways: The application did not indicate that Lexington was a Foreign Corporation or include a legal opinion stating why such registration was not required under Florida law; The application did not include financial reports as required by Rule 3E-300.02(2)(d), Florida Administrative Code; and Lexington did not meet the net capital/net worth requirements of Rule 3E-600.16, Florida Administrative Code. By letter dated June 17, 1985, Lexington corrected the first 2 deficiencies and requested that the Department waive the net capital requirements of Rule 3E-600.016(3)(b), Florida Administrative Code (hereinafter referred to as the "Net Capital Requirement"). By letter dated August 23, 1985, the Department denied Lexington's request for a waiver of the Net Capital Requirement. By letter dated November 11, 1985, Lexington requested that the Department reconsider its request for a waiver of the Net Capital Requirement. In the letter of November 11, 1985, Lexington also informed the Department that its name had been changed from Amvest Capital Management, Inc., to Lexington Capital Management, Inc. By letter dated February 7, 1986, the Department informed Lexington that it would reconsider its request for a waiver of the Net Capital Requirement and requested audited financial statements of Lexington and Piedmont Management Company, Inc., and information concerning the acquisition of a surety bond by Lexington. On May 7, 1986, Lexington provided the Department with documentation, including an audited financial statement for Lexington as of December 31, 1985, which indicated that Lexington had a negative net worth of $1,248,595.00, a general undertaking from Safeco Insurance Company to issue a surety bond for $100,000.00, and a proposed "Continuing Guaranty" agreement from Piedmont Management Company, Inc., guaranteeing all debt of Lexington. The Financial Administrator of the Department was requested to review the Continuing Guaranty agreement submitted by Lexington. She raised questions which led the Department to conclude that it had no authority to waive the Net Capital Requirement as requested by Lexington. The Financial Administrator of the Department orally informed Lexington of its position and indicated that a Declaratory Statement on the issue could be requested. In September of 1986, Lexington filed a Petition for Declaratory Statement on the issue of whether the Department had the authority to waive the Net Capital Requirement. The request was withdrawn by Lexington by letter on March 13, 1987. On April 29, 1987, the Department issued a letter denying Lexington's application for registration as an investment adviser in the State of Florida for failure to meet the Net Capital Requirement. The Department also denied the application of Mr. Waymire for registration as the principal of Lexington because Lexington's application had been denied. The Department's denial was based upon its determination that it did not have the authority to waive the Net Capital Requirement. The information that the Department had requested that Lexington provide was not considered or analyzed by the Department. The following facts concerning the following investment advisers currently licensed in the State of Florida were proved: FSC Advisory Corporation has filed financial statements with the Department for 1978, 1979, 1980 and 1981 which indicate that the Corporation had a negative net capital of $46,278.00, $79,127.00, $101,024.00 and $90,141.00, respectively, in each of those years. FSC Advisory Corporation has been licensed as an investment adviser in the State of Florida since at least 1977. [The Department has taken no action against FSC Advisory Corporation for failing to maintain the net capital required of licensed investment advisers.] Richard W. Whitehead, Inc., was licensed as an investment adviser on February 5, 1981. Its application included a December, 1980, financial statement which indicated that the company had a negative capital of $589.00. The evidence did not prove that the Department "waived" the Net Capital Requirement. Subsequently filed financial statements for 1981, 1983, 1984, 1985 and 1986 indicate that the company had a negative net capital of $1,071.00, $3,838.00, $4,978.00, $46,582.00 and $33,989.00, respectively, in each of those years. FCA Corporation filed financial statements with the Department for 1984 and 1985 indicating a negative net capital of $115,325.00 for 1984 and $40,136.00 for 1985. The 1985 financial statement was filed in response to a letter of August 13, 1986 from the Department notifying FCA Corporation that it had failed to file a financial statement. Coordinated Financial Services Advisors, Inc., filed a financial statement indicating that it had a negative net capital of $9,019.00 as of March 31, 1987. This statement was filed in response to a letter from the Department dated April 29, 1987, notifying the company that it had failed to file a financial statement. Stratfield Investment Management, Inc., filed a financial statement with the Department indicating that it had a negative net capital of $12,149.00 as of December 31, 1986. Consortium Group, Inc., filed a financial with the Department indicating a negative net capital of $19,947.00 as of October 31, 1986. TFG Consulting, Inc., was registered as an investment adviser by the Department on February 24, 1987. Its application included a July 31, 1986, financial statement indicating a negative net capital of $281.72. The Department informed TFG Consulting, Inc., of this deficiency by letter dated June 13, 1986. Market Metrics, Inc., filed a financial statement with the Department indicating it had a negative net capital of $38,357.00 as of June 30, 1984. Investment Management included a document with its application for registration which indicated that it had a negative net capital of $94,979.00. The Department, however, notified Investment Management of its failure to meet the Net Capital Requirement. By letter dated September 16, 1981, Investment Management notified the Department that it complied with the Net Capital Requirement; it had a net capital of $36,132.00. Generally, the Department took no action against the companies discussed in paragraphs 13a through 13i for failing to maintain the net capital required of licensed investment advisers except to the extent specifically noted in those paragraphs. The evidence did not, however, prove that the Department had waived the Net Capital Requirement for any entity filing an initial application for registration as an investment adviser. The Division of Securities and Investor Protection of the Department has a total staff of approximately 74 persons. The Division's Bureau which processes registrations consists of only 8 professional employees and several clerical positions. The 8 professional employees of the Bureau processed approximately 500 new broker-dealer and investment adviser applications which were approved during the past fiscal year. They also processed applications which were not approved and approximately 3,200 renewals. There are approximately 3,200 broker-dealers and investment advisers, 1,500 branch offices and 120,000 associated persons registered with the Department. Except for bank holding companies, which are discussed, infra, companies which received and/or retained registrations with the Department despite their failure to meet the Net Capital Requirement did so because of Department employee error. From March 6, 1979 until March 20, 1986, the Department issued thirty- three letters in response to requests for waivers of the net capital requirements. In each case the Department indicated that it interpreted Rule 3E-300.02(7)(a), Florida Administrative Code, to allow the Department to waive the Net Capital Requirement if the waiver would not be contrary to the interest of the investing public. Of the thirty-three cases where a waiver was granted, thirty of those cases involved bank holding companies. It is a common practice in bank mergers or reorganizations for a bank to form a bank holding company. Stock of the existing bank is then exchanged for stock of the bank holding company. The bank holding company is required to register as an issuer-dealer and must meet a $5,000.00 net capital requirement. Often, the bank holding company does not meet this requirement until after the transaction has occurred. Therefore, bank holding companies request a conditional waiver from the net capital requirement. Each request is reviewed on a case-by-case basis to be sure the public is adequately protected. The waivers that have been granted were conditioned on the bank holding company complying with the Net Capital Requirement after the exchange of stock occurs. Of the thirty-three waivers proved in this proceeding, thirty were bank holding companies. The evidence failed to prove what type of transaction was involved in the other three cases. The Department's position with regard to waiving the Net Capital Requirement of bank holding companies applied to investment advisers as well as broker-dealers or issuer-dealers. The Department's interpretation of Rule 3E-300.02(7)(a), Florida Administrative Code, with regard to its authority to waive the Net Capital Requirement for bank holding companies set out in the letter to the thirty-three companies referred to above was the same as set out in the Department's letter of February 7, 1986, indicating that the Department would reconsider Lexington's request for a waiver. The Department has stopped granting waivers from the Net Capital Requirement to bank holding companies based upon its present interpretation of the law. The $2,500.00 Net Capital Requirement for investment advisers does not guarantee that customers will not sustain losses or that the adviser will remain solvent. Lexington is an investment adviser doing business in 46 states. The State of Arkansas has taken action to revoke the registration of Lexington in that State. This action is based, in part, on the refusal of the State of Florida to approve Lexington's application. As of the date of its application Lexington had a negative net capital of $1,248,955.00. The negative net capital is due in part to $1,650,000.00 in long-term debt owed to Piedmont Management Company, Inc., and Lexington Management Corporation of New Jersey. Piedmont Management Company, Inc., owns 100 percent of the stock of Lexington Management Corporation of New Jersey, which in turn owns 50 percent of the stock of Lexington. The other 50 percent of the stock of Lexington is owned by "senior management" in Lexington. Lexington's $1,650,000.00 of long-term debt to Piedmont Management Company, Inc., and Lexington Management Corporation of New Jersey is subordinated; all other debts of Lexington would have priority over the long- term dept. Piedmont Management Company, Inc., had net capital of $78,394,000.00 as of December 31, 1985. Lexington does not take physical possession of its clients' assets. Clients' assets are kept with a broker-dealer. Lexington only has the authority to trade a client's account; it does not authority to transfer assets in or out of a client's account. The Continuing Guaranty agreement submitted to the Department by Lexington is not effective indefinitely. The agreement does place the asset and net worth of Piedmont Management Company, Inc., behind the liabilities of Lexington, except subordinated debt. The surety bond commitment was to be in a form specified by the Department. The parties stipulated that Lexington has never met the Net Capital Requirement. If the Net Capital Requirement were waived the investing public would be adequately protected if the actions which the Department and Lexington have discussed are taken. This protection will only be for the effective period of the Continuing Guaranty agreement, however.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the requested waiver of the Net Capital Requirement be DENIED. It is further, RECOMMENDED that the application of Lexington for registration as an investment adviser in the State of Florida and the application of John B. Waymire as principal be DENIED. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2289 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 2. 2 7. 3 3. 4-5 4. 6 5. 7 6. 8 8. 9 9. The "unconditional guarantee" is for a limited period of time, however. 10 30. 11 31. 12-13 12. 14 23. 15 18. 19. The evidence failed to prove that there was a "substantial minority" or that the 3 applicants which were not bank holding companies were broker- dealers or investment advisers. The evidence failed to prove that there is such a "policy." See 21. 18 22. 19-20 12. The evidence failed to prove that the Department's discontinuance of its treatment of waiver request was "abrupt" or a discontinuance of a policy applicable to the Petitioners. 21 Hereby accepted. 22 24. 23 25. 24 29. The first sentence is irrelevant. The last sentence was not proved by the weight of the evidence. 26. The evidence failed to prove that Lexington has a "parent" company. 27 27. 20 Not a proposed finding of fact. 21 18-20. 22 19. 23 14. 24 15 and 16. 25 17. 26 12 and 23. 27 25. 28 32. The last sentence is a statement of law and not a proposed finding of fact. Not supported by the weight of the evidence. 29 26. 30 28. 31 See 33. 32 13a and 13j. 33 13b and 13j. 34 Not supported by the weight of evidence. 35 13c and 13j. 36 13d and 13j. 37 13e and 13j. 38 13f and 13j. 39 13g. 40 13h and 13j. 41 13i. 42 Not supported by the weight of the evidence. One Department employee testified that he believed that the rationale for waiving the Net Capital Requirement for bank holding companies (that the investing public was adequately protected) would apply to investment advisers also. This testimony does not prove, however, that the Department has implemented a policy with regard to permanent waivers of the Net Capital Requirement for initial applications of investment advisers. 43 Not supported by the weight of the evidence. The Department's Proposed Findings of Fact 1 1. 2 2. 3 3. 4 4. 5 5. 6 6 and 7. 7 8. 8 9. 9 10 and 11. 10 12. 11 13a and 13j. 12 13b and 13j. 13 13c and 13j. 14 13d and 13j. 15 13e. 16 13f. 17 13g. 18 13h. 19 13i. COPIES FURNISHED: Edward W. Dougherty, Esquire and Charles T. Collette, Esquire Mang, Rett & Collettee Post Office Box 11127 Tallahassee, Florida 32302-3127 Walter W. Wood Deputy General Counsel and Margaret S. Karniewicz Assistant General Counsel and Charles E. Scarlett Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Comptroller, State of Florida Banking & Finance Department The Capitol Tallahassee, Florida 32399-0350
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated April 20, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to Chapters 120, 455, and 475, Florida Statutes. The Florida Real Estate Commission ("Commission") operates within the Department and is the entity directly responsible for licensing and disciplining those licensed under Chapter 475. Section 475.02, Florida Statutes. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes. Janice H. Little is, and was at all times material to this action, licensed as a real estate broker in Florida and was issued license number 0370239. The last license issued to Ms. Little was as a broker %Dennis & Little, Inc., t/a Kays Realty, 421 Southwest 31st Avenue, Fort Lauderdale, Florida, 33312. On April 7, 1993, Ms. Little obtained an offer from Karlene Bascombe to purchase real property owned by Maxine Williams. Ms. Little was acting as the seller's co-broker in this transaction. Ms. Little provided Ms. Bascombe with the names of several mortgage companies. Ms. Bascombe decided to apply for financing to Vision Mortgage Corporation, one of the companies identified by Ms. Little, and she met with Henry Yee, the manager of Vision Mortgage Corporation, at Ms. Little's office. Ms. Little introduced Ms. Bascombe to Mr. Yee but did not participate in their meeting. As part of her loan application, Ms. Bascombe authorized Vision Mortgage Corporation to verify her past and present employment records, among other things. At some point during the time Ms. Bascombe's loan application was being processed, Ms. Little learned that Ms. Bascombe's income was not sufficient to warrant approval of the application. Ms. Little was aware that Ms. Bascombe was a bookkeeper and that she worked full time at Lerner's. After learning that Ms. Bascombe had insufficient income to secure financing for the purchase of Ms. Williams' property, Ms. Little approached Donaval Powell and asked if he would be interested in hiring a part-time bookkeeper. Mr. Powell owns Filament Electronics, a business that sells and repairs electronic equipment. The business is located in the same shopping center in which Ms. Little's office was located and in close proximity to her office. Filament Electronics has been in the same location since it opened in 1992. Ms. Little and Mr. Powell have known each other since shortly after he opened his business. Mr. Powell told Ms. Little he might want to hire a part-time bookkeeper, but Mr. Powell heard nothing further about this matter. He never met Ms. Bascombe, he did not hire her, and she was never employed by Filament Electronics.1 Blanca Tanadell, an employee of Vision Mortgage Corporation, prepared a Fannie Mae Request for Verification of Employment form for Ms. Bascombe. Ms. Tanadell filled out boxes one through eight of the form, and she identified Filament Electronics as the employer from whom verification of Karlene Bascombe's employment was sought. Ms. Tanadell sent the form to Ms. Little, even though the instructions included on the form direct the lender to send the form to the named employer. Ms. Little completed boxes nine through thirty of the employment verification form in which Filament Electronics was identified as Ms. Bascombe's employer. Ms. Little represented that Ms. Bascombe was employed there in January, 1991, and that her present position was as a bookkeeper. Ms. Little knew when she completed the form that Ms. Bascombe had not been employed by Filament Electronics prior to April 10, 1993, but she testified that she believed that Mr. Powell had hired Ms. Bascombe subsequent to that date. Ms. Little further represented that Ms. Bascombe's annual "current gross base pay" was $24,250.00 and that her gross earnings for 1992 were $24,250.00 and for 1991 were $23,500.00. At the time she completed the employment verification form, Ms. Little had no documentation to support the earnings she attributed to Ms. Bascombe.2 Finally, Ms. Little signed the name "Hyacinth Fuller" and identified her as "Supervisor."3 She then sent the completed employment verification form to Vision Mortgage Corporation. Ms Little did not ask Mr. Powell to complete the employment verification form, nor did she ask him whether he employed Ms. Bascombe and, if so, the amount of her earnings. Ms. Bascombe's loan application was approved, and she purchased the real property offered for sale by Maxine Williams. Ms. Little was paid a commission at closing in the amount of three percent of the sales price of the property. Ms. Bascombe subsequently defaulted on her loan, and it was in the course of the loan company's investigation of the default that Mr. Powell denied ever having employed Ms. Bascombe. Ms. Little is licensed in Florida as a mortgage broker, and, at one time, her license was with Vision Mortgage Corporation. She is familiar with the procedures for processing loan applications. The stipulation entered into by the parties and the evidence presented by the Department are sufficient to establish that Ms. Little is guilty of fraud or misrepresentation in a transaction related to her business as a real estate broker. Ms. Little seeks to excuse her actions by claiming that she believed that Ms. Bascombe had been hired by Mr. Powell after April 10, 1993, and that she was provided with the earnings figures by Henry Yee, who was the manager of Vision Mortgage and whom she considered trustworthy. She also claims that Mr. Powell wants to harm her because she spurned his sexual advances and told his wife that he constantly bothered her. These contentions are, however, contrary to the more credible and persuasive proof and, even if true, do not alter the fact that Ms. Little acted with, at the very least, extreme reckless disregard for the truth.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Janice H. Little guilty of violating Section 475.25(1)(b), Florida Statutes, and revoking her real estate broker's license. DONE AND ENTERED this 5th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1997.
The Issue Whether respondent should grant petitioner's application for licensure as a real estate salesman?
Findings Of Fact At the time and place set for hearing petitioner failed to appear in person or otherwise, and proved no facts in support of his application.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for license as a real estate salesman. DONE and ENTERED this 12th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1990. COPIES FURNISHED: 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 Manuel E. Oliver, Esquire Assistant Attorney General Office of the Attorney General 400 West Robinson Street Orlando, FL 32801 Frank J. Norris 1038 Arco Road, #4 Jacksonville, FL 32211
The Issue Should Petitioner, Charles Caputo's, application for a real estate sales associate license be granted.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is an applicant for licensure as a real estate sales associate. His application was filed on November 3, 2007. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application. Petitioner's application revealed the following record of criminal involvement: Driving "while ability impaired"-- December 21, 1987, Suffolk County, New York. (This is a civil infraction based on a plea to the initial charge of Driving Under the Influence.) Petit Theft--August 29, 1991, St. Cloud, Florida. Burglary--July 27, 1997, Orange County, Florida. (Adjudication withheld.) Passing a Bad Check--March 17, 1998. Trespass After Warning--November 13, 2002, Orange County, Florida. When Petitioner applied for a license in 2005, he only disclosed two offenses. On August 7, 2008, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are "Failure to Disclose," "Unpersuasive Testimony," "Crimes Recent," and "Pattern of Crime." In addition, the Notice of Intent to Deny concludes that Petitioner failed "to demonstrate honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others"; that Petitioner was "guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction"; and that Petitioner had been "convicted or found guilty or entered a plea of nolo contender to, regardless of adjudication, a crime which directly relates to the activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealings." Finally, the Notice of Intent to Deny concludes that Petitioner "has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free." The several "character" witness presented by Petitioner were not well-informed regarding Petitioner's criminal history, and while they apparently thought well of him, their testimony was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Charles Caputo's, application for real estate sales associate licensure be denied. DONE AND ENTERED this 20th day of February, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 February, 2009. COPIES FURNISHED: S. W. Ellis, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801 N Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
Findings Of Fact By contract dated March 13, 1974 Frederick W. and Judith P. Shaw placed $500 as earnest money to purchase property from Comfort Builders, Inc. represented by Giles Realty. The $500 was duly placed in escrow. The contract provided that seller would furnish title insurance and buyer could take posession on April 1, 1974. Buyer occupied the house as per the contract and delayed the initially intended closing to require the builder (seller) to correct defects. Shortly after the contract was executed buyer paid seller an additional $3,000 of the purchase money. This payment did not go through Giles. At the first closing session on May 15, 1974 a subcontractor's lien was discovered and the closing did not occur. At a second scheduled closing additional liens against the property were discovered. The $500 check representing buyers' deposit that had been forwarded by Giles to First Federal Savings and Loan Association, who was to loan the mortgage money, was returned to Giles by letter of October 10, 1974 advising that they were unable to make the mortgage. Subsequently the bank, which had also provided the construction mortgage money, foreclosed on the mortgage and took title to the property. Thereafter on March 21, 1975 the bank sold the property to Shaw who had occupied the premises since April, 1974. After the property had been conveyed by the bank to Shaw, Giles prepared a Release of Deposit Receipt which was executed by Comfort Builders, Inc., the original seller, to allow the $500 deposit to be retained by Giles. When asked to execute this release Shaw declined. Whether Giles told Shaw that she had asked the FREC for an advisory opinion respecting the $500 as Shaw testified or only that she would ask for an advisory opinion as testified to by Giles is immaterial as no advisory opinion was requested by Giles. Thereafter Shaw filed a complaint with FREC which led to the charges here under consideration. When this complaint was being investigated by Kimmig, Giles asked Kimmig for an advisory opinion and she was told she would have to request same from the Commission. Several years earlier Giles had obtained an advisory opinion by submitting a written request to the Commission, but no such request was submitted by Giles respecting the disposition of the $500 deposit of Shaw. The $500 has not been disbursed from the escrow account. Mrs. Giles has been registered with the FREC for some 20 years and these are the first disciplinary proceedings ever brought against her. Exhibit 10 contains numerous achievements and recognitions received by Mrs. Giles showing an excellent reputation in the community.
