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
The Issue Whether Petitioner's application for licensure as a community association manager by examination should be granted.
Findings Of Fact Petitioner, Fred Storch (Storch), filed an application with Respondent, Department of Business and Professional Regulation, Community Association Managers (Department) on April 14, 1998, for licensure as a community association manager by examination. The application contained the following question: Have you now or have you ever been licensed or certified in any profession such as real estate, insurance, securities, etc., in Florida or in any other state, province, district, territory, possession or nation? If the applicant answered "yes" to the question, the application required the applicant to list the name of the profession, the license number, the date the license was first obtained, and the current status of the license. Storch answered "yes" to the question and indicated that he currently had a real estate salesperson's license in Florida and a real estate broker's license in New York. At the final hearing, Storch testified that he had a current mortgage broker's license and a real estate salesperson's license from New York and that he was currently licensed in Florida as a real estate salesperson and had been licensed in Florida as a mortgage broker. The application contained the following question: Has any license, certification, registration, or permit to practice any regulated profession been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation or is any proceeding now pending? This includes any disciplinary action taken against you such as a reprimand, probation, etc. Storch answered "no" to the question. The following question was also on the application: Have you ever relinquished or withdrawn from any license, certification, registration or permit to practice any regulated profession in this or any other state, province, district, territory, possession or nation or is any proceeding now pending? Storch answered "yes" to the question and provided the following explanation. I relinquished my license as a Mortgage Broker because I was unable to submit to an audit on a timely basis due to my son's poor health. My son is afflicted with epilepsy, which cannot be controlled with medication. He is having surgery on April 21, 1998 at George Washington University Hospital, Washington, D.C., to eliminate the cause of his seizures. I have enclosed the documentation from the Comptroller's Office and my son's doctor. In 1994, Storch and the Florida Department of Banking and Finance (DBF) entered into a Stipulation and Consent Order which was incorporated in a Final Order, dated January 13, 1995. Storch and DBF agreed that Storch's mortgage broker's license was suspended until a location and occupational license was obtained. Storch agreed to pay an administrative fine of $500 and agreed to cease and desist all violations of Chapter 494, Florida Statutes. On February 12, 1997, DBF entered a Default Final Order and Notice of Rights, finding that Storch had acted as a mortgage broker without a current active license and that Storch had failed to provide his books and records for inspection as requested by DBF. Storch was ordered to cease and desist from violating Chapter 494, Florida Statutes, and all registrations and licenses previously issued to Storch, which included his mortgage broker's license, were revoked. By letter dated February 13, 1997, Storch advised DBF that he would be willing to turn in his license if DBF would not pursue any action against him then or in the future. On September 18, 1997, the Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Storch alleging that Storch had violated Section 475.25(1)(s), Florida Statutes, because his residential mortgage broker's license had been revoked. On December 17, 1997, the Department of Business and Professional Regulation, Division of Real Estate, entered a Final Order, disciplining Storch's real estate salesperson's license. The Final Order stated that Storch was guilty of violating Section 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint and required Storch to pay an administrative fine of $100.00 and investigative costs of $313.60.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Fred Storch's application for licensure as a community association manager. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of March, 1999. COPIES FURNISHED: Edward Broyles, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Thomas G. Thomas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Fred Storch 7782 Edinburough Lane Delray Beach, Florida 33446
Findings Of Fact The facts in this case are clear and uncontroverted. On or about February 5, 1975, Martin E. Kulok terminated his employment as a mortgage solicitor with ABC Investment Corporation. ABC Investment Corporation wrote and advised the Division of Finance on February 10, 1975, that Kulok had left his employ. On February 5, 1975, Kulok applied for licensure as a mortgage solicitor with Financial Resources Corporation On February 12, 1975, the Division of Finance cancelled Kulok's registration as a mortgage solicitor with ABC. On February 20, 1975, the Division of Finance issued Kulok's license as a mortgage solicitor with Financial Resources Corporation. On February 13, 1975, while unlicensed, Kulok sold what purports to be a first mortgage to Lincoln H. Evans in behalf of Financial Resources Corporation. Kulok has applied for licensure as a mortgage solicitor with Joseph Maddlone, and said application is at issue because the Division of Finance asserts that Kulok's sale to Evans while he was unlicensed between February 12 and February 20 "demonstrates deficiencies in qualities of experience, integrity, and competency" which are essential to the issuance of a mortgage solicitor's license. It is clear that in issuing licenses, the Division of Finance issues licenses to the broker, in this case Financial Resources, and that nothing is forwarded to the mortgage solicitor. Kulok was physically located in Miami, Florida and his broker's office was located in Fort Lauderdale, Florida. Kulok stated that he called his broker frequently to determine what the status of his license was. On February 13, 1975, some eight days after completing his application, his broker advised him that he could go out and sell. On February 13, 1975, Kulok's application was received by the Division of Finance. The apparent basis for requiring issuance of licenses to brokers and requiring brokers to delicense solicitors is that they are more responsible than solicitors. See Subsection 498.04(9)(10), F.S. It appears that in the instant case Financial Resources Corporation was not as responsible as many people, including Mr. Kulok and the Division, thought it was. Fortunately, the issue presented here is not Mr. Kulok's status when his application for licensure had been received but had not been granted by the Division. Under the procedures adopted by the Division of Finance the solicitor is dependent upon the good faith representations of his broker, to whom the Division also looks for control. By inquiring of and being told by his broker that he was able to sell, Kulok did what he could do to determine his status. Certainly he could have done more, but he had no basis to mistrust his broker. Under the facts presented here, there is no evidence that Kulok lacks the "experience, integrity, and competency" to be licensed as a mortgage solicitor, and that is the issue.
Recommendation Based upon the foregoing conclusions of law and findings of fact, the Hearing Officer recommends that Kulok's license be granted. DONE and ORDERED this 6th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Barclay, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Martin B. Kulok 150 S.E. 25th Road, No. 14F Miami, Florida 33129 ================================================================= AGENCY FINAL ORDER =================================================================
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.
The Issue Whether the Petitioner, Nancy L. DeGayner, demonstrated that she is qualified to be licensed as a real estate salesperson in the state of Florida.
Findings Of Fact On or about October 7, 1996, the Petitioner, Nancy L. DeGayner, filed an application for licensure as a real estate salesperson with the Division of Real Estate. The Petitioner responded in the affirmative to question nine (9) in the application which inquired whether the applicant had been convicted of a crime. The Petitioner enclosed a written statement which stated as follows: My Real Estate License was suspended July 26, 1991, due to many allegations made against me. I was placed on probation while an intensive, thorough investigation was administered by many governmental agencies. The allegations were not substantiated. There were no convictions. I was discharged from probation. The proceedings in this case were terminated pursuant to Florida Statutes August 18, 1994; Instrument #941250; Book: 3944; Page: 1025; R. Michael Hutcheson, Judge Circuit Court Volusia County, Florida. DUI 12/14/84. Question thirteen (13) of the application inquired whether the applicant had had any license to practice a regulated profession revoked in this state upon grounds of fraudulent or dishonest dealing or violation of law. The Petitioner answered no to this question. On December 14, 1990, the Department of Professional Regulation, now the Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against the Petitioner. The Administrative Complaint alleged that: The Petitioner was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest by trick, scheme or device, comparable negligence, and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes. The Petitioner failed to account for delivered trust funds in violation of Section 475.25(1)(d), Florida Statutes. The Petitioner failed to prepare and sign the required written monthly escrow reconciliation statements in violation of Rule 21V-14012(1)(2), Florida Administrative Code, and thereby violated Section 475.25(1)(e), Florida Statutes. The Petitioner failed to maintain trust funds in a brokerage escrow bank account or in some other proper depository until disbursement was properly authorized in violation of Section 475.25(1)(k), Florida Statutes. The Petitioner was guilty of a course of conduct or practice which showed that she was so incompetent, negligent, dishonest or untruthful that the money, property, transactions, and the rights of investors, or those with whom she may sustain a confidential relationship, may not safely be entrusted to her in violation of Section 475.25(1)(o), Florida Statutes. On July 16, 1991, the Florida Real Estate Commission held a hearing and issued a Final Order on the Administrative Complaint filed against the Petitioner. The Petitioner failed to appear, although she had been duly served with notice of the hearing. The Commission entered its Final Order which found that the Petitioner had been served with the Administrative Complaint, that she had failed to request a hearing, that she was in default, and that a prima facie case had been established against the Petitioner in the proceedings. The facts and legal conclusions contained in the complaint were adopted as true and the Petitioner’s license was revoked. The Administrative Complaint filed by the Department of Business and Professional Regulation against the Petitioner had arisen out of acts which were the basis for criminal charges brought in the Circuit Court of Volusia County, Florida, on or about February 20, 1991, in Case No. 90-7033. These criminal charges arose out of allegations of misfeasance by the Petitioner in the management of her real estate brokerage concerns. As a result of these charges, the business records of these concerns were seized by the law enforcement officials, and the Petitioner was charged with multiple counts of grand theft. Based upon the evidence presented at the hearing, it is clear that the Petitioner entered a plea of convenience to two (2) counts of grand theft, a third degree felony. As a result of the Petitioner's plea, the Circuit Court entered its Order withholding adjudication and placing the Petitioner on probation for a period of five (5) years. A special condition of the probation was that the Petitioner should make restitution of the funds which she had allegedly taken from accounts placed in her trust. The funds and all of the Petitioner’s business accounts were placed in the registry of the court and from those funds restitution was made to all of the Petitioner’s clients. The circumstances indicate that the Petitioner had the money on hand in her business accounts to meet all of the obligations to her clients at the time the charges were brought, and she had not taken any of the money entrusted to her. At the conclusion of the accounting and reimbursement of the clients, the court discharged the Petitioner’s probation and entered an Order to that effect on August 2, 1994. (See transcript, at page 30, et seq.) Since her conviction, the Petitioner has been continually employed. She was employed with Perkins Family Restaurant from November 1991 until November 1996. She was employed as a salesperson of advertising for WROD from December 1996 to May 1997. She was employed at the Daytona Beach Regency from May 1997 until July 1997 and has been employed with Winston/James Development since July 1997 in a non-real estate capacity. The Petitioner has been responsible for the money of her employers and the monies of others entrusted to her in all of the jobs at which she has been employed. Following her plea and the entry of the Order of Probation, the Petitioner sought the permission of her probation officer to leave the state and moved to her mother's home in Wisconsin in early 1991. She was employed thereafter in businesses unrelated to real estate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Florida Real Estate Commission enter its Final Order approving the Petitioner’s Application for Licensure as a real estate salesperson; however, because of the previous problems related to the Petitioner’s management of professional accounts, it is recommended that an entry be made to her licensure file that she may not be granted a license as a real estate broker without the Commission’s reconsideration of her qualifications to manage such accounts. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: Michael Teal, Esquire William R. Alexander, Esquire 114 West Rich Avenue DeLand, Florida 32720 Manuel E. Oliver, Esquire Suite 107 South Tower 400 West Robinson Street Orlando, Florida 32801 Henry Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32302 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard T. Ferrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, including the admissions made by Respondent in the Joint Response to Pre-Hearing Order, the following findings of fact are made: At all times material to the instant case, Respondent was a Florida-licensed real estate salesperson. Since June of 2002, Respondent has been a Florida- licensed real estate broker. Respondent is a convicted felon as a result of a single felony conviction. 3/ In 2000, Respondent was involved in a real estate transaction in which he was the buyer. The property that was the subject of the transaction was located at 119 Hammocks Drive in West Palm Beach, Florida. The transaction was closed through a title company, Cypress Title Company (Cypress). The closing took place on May 15, 2000. Cypress was represented at the May 15, 2000, closing by Susan Anderson, a marketing representative with Cypress who conducted closings (approximately five or six a month) as part of her job responsibilities. Ms. Anderson had two years experience conducting closings at the time of the May 15, 2000, closing. At each closing at which she represented Cypress, Ms. Anderson was responsible for, among other things, collecting the funds necessary to effectuate the closing and making the appropriate disbursements. It was Ms. Anderson's routine practice, before turning a closing file over to Cypress' "post closer" following a closing, to "make sure [that] everything [that needed to be in the file was] there." Prior to the May 15, 2000, closing, Respondent was contacted by "someone from Cypress" and instructed to bring to the closing a cashier's check in the amount of $3,684.64 made payable to himself. Respondent was advised that the $3,684.64 represented an "estimate" of the amount he needed to pay from his own funds to close the transaction. On May 15, 2000, prior to the time of the closing, Respondent went to Bank United, where he had an account, and purchased a cashier's check in the amount of $3,684.64 made payable to himself, as he had been instructed to do. Respondent brought the cashier's check to the closing. At the closing, Respondent endorsed the check with his signature, underneath which he wrote, in accordance with his routine practice when endorsing checks, the number of his account at Bank United. He then handed the cashier's check to Ms. Anderson. The actual amount due from Respondent was $3,670.04, $14.64 less than the amount of the cashier's check. Accordingly, Ms. Anderson gave Respondent a check for $14.64. Following the closing, Ms. Anderson examined the closing file (in accordance with her routine practice). In doing so, it did not "come to [her] attention that the [cashier's] check [that Respondent had brought to the closing] was not there." After conducting such an examination, she gave the closing file to the "post-closer." The cashier's check that Respondent had given to Ms. Anderson at the May 15, 2000, closing was cashed at Bank United on May 17, 2000, by someone other than Respondent or Ms. Anderson. Pursuant to Bank United policy, "[o]nly the payee can cash [a cashier's] check." Bank United tellers are supposed to ask for a "picture ID" when a cashier's check is presented for cashing. There have been tellers at the bank, however, who have not followed this policy and, as a result, have been counseled or disciplined. 4/ Approximately, two months after the May 15, 2000, closing, Cypress' owner approached Ms. Anderson and told her that there was no proceeds check from Respondent in the closing file. Ms. Anderson was asked to contact Respondent to inquire about the matter, which she did. Respondent was initially "very cooperative." He gave Ms. Anderson his "account number [at Bank United] and [the name of a person] to call at the bank." Using the information Respondent had provided, Ms. Anderson was able to obtain a copy of the cashier's check that Respondent had given to Ms. Anderson at the closing and that subsequently had been cashed at Bank United. Kevin Wilkinson, an attorney acting on behalf of Cypress, also contacted Respondent. Mr. Wilkinson's tone, in Respondent's view, was accusatory and threatening. Respondent's response to Mr. Wilkinson's "aggressive[ness]" was to stop cooperating with Cypress.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 28th day of January, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of January, 2003.
The Issue Whether the license of Respondent, O. Tom Macon, should be suspended, or whether other disciplinary action should be imposed.
Findings Of Fact The Respondent, O. Tom Macon, is a registered real estate salesman residing in Fort Myers, Florida, who holds License number 0054554 as a real estate salesman. On April 20, 1978, an administrative complaint was filed against the Respondent alleging that he was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in a business transaction. The Respondent requested an administrative hearing. In January of 1974, Mr. James Fortiner, Dr. David Brown, and Respondent Macon purchased the Professional Arts Building in Fort Myers, Florida. The transaction was documented by a deed from the seller to the Respondent as trustee. Title was transferred to a corporation, Professional Arts Building of Fort Myers, Inc., in December of 1974. James Fortiner transferred his interest in the property to Respondent Macon, leaving the Respondent with a two-thirds interest in the property and Dr. Brown with a one-third interest. At a later date Respondent Macon obtained a $20,000.00 personal loan from a man by the name of Phil Elliott, secured by a second mortgage on the subject property. He did not secure Dr. Brown's permission to mortgage the property or tell him of the encumberance. Subsequently, Respondent Macon contracted to sell the Professional Arts Building to Jeanne L. Eveleth in February of 1976. At the closing in March of 1976, which Dr. Brown did not attend, a check for $33,433.42 was deposited to the account of the Professional Arts Building, Limited. Simultaneously, Respondent Macon paid his personal debt to Mr. Elliott out of the proceeds of the sale and satisfied the mortgage. A final statement established that Respondent Macon owed personal debts to the limited partnership in the amount of $6,972.45, and that the limited partnership owed Dr. Brown this amount of money. After the sale of the property and the payment of Respondent's personal debt out of the proceeds, there were no assets left in the corporation. When confronted with this situation, the Respondent promised Dr. Brown he would pay him the money the Respondent had used without authorization, but in November of 1976, the Respondent went into voluntary bankruptcy. At that time Respondent Macon still owed Dr. Brown the full amount due to Dr. Brown as a result of the sale of the subject property. Bankruptcy, however, has no effect on the authority of Petitioner to discipline. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends suspension of Respondent O. Tom Macon's license until such time as he makes full restitution to Dr. Brown. DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
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
