Findings Of Fact At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker." Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above. DONE and ORDERED this 25th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 25th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard McClain, Esquire 6167 Haddon Road West Palm Beach, Florida 33409
Findings Of Fact On October 3, 1975, Respondent filed an application with Petitioner for registration as a real estate broker (Stipulation, Petitioner's Exhibit 2). That said application contained therein Question 8 which is set forth in paragraph 2 of the Amended Complaint and to which Respondent answered "No." (Stipulation, Petitioner's Exhibit 2.) That thereafter the application was approved and the Respondent subsequently received his registration as a real estate broker and has been continuously registered the Petitioner as a broker since December 22, 1975 (Stipulation.) That at the time of the execution of the application, as aforesaid, Respondent'S answer to Question 8 was incorrect in that he failed to reveal, disclose and fully explain a Complaint filed against him on August 6, 1973, in the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, by one Kenneth Beard, an individual, which complaint alleges false representations on the part of the Respondent in a business transaction. A judgment of the aforesaid Circuit Court in the above-mentioned action was in the process of appeal at the time Respondent filed his application for registration as a real estate broker (stipulation.) Respondent testified at the hearing substantially as follows: After the civil action had been filed against him, he sought the advice of counsel who informed him that the complaint therein was defective as a matter of law. He was therefore of the opinion that there was not a viable suit against him at the time he filled out his application, and thus was not attempting to mislead or hide any facts from the Petitioner. He also felt that, since he had not, in fact, committed any fraud or misrepresented any matters to the purchaser of the business in question, a negative answer on the question in the application was justified. However, upon reflection at the hearing, he conceded that, probably he had misread the question and misconstrued its meaning. Respondent's good reputation for truth and veracity in the community and in his business dealings was attested to by past officials of the Clearwater, Largo, Dunedin Board of Realtors (Testimony of Merhige, Blanton).
Recommendation That the Complaint against Respondent, William D. Folz, be dismissed. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard B. Moritz, Esquire 801 West Bay Drive Suite 704 Largo, Florida 33540
Findings Of Fact Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no". Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50. When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants. Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least $250. He pleaded guilty to the charge. The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him. Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton. His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
Findings Of Fact The Defendant, Theodore Michael Lakos, was at all material times, registered with the Florida Real Estate Commission as a real estate salesman. On or about April 20, 1976, a Second Amended Information was filed by the State Attorney for the First Judicial Circuit of Florida against Theodore Michael Lakos, and others in the Circuit Court of Escambia County, Florida. A copy of the Second Amended Information was received in evidence at the hearing as Plaintiff's Exhibit 2. On or about August 25, 1976, Theodore Michael Lakos withdrew his previous plea of not guilty of the charges, and entered a plea of nolo contendere to Counts 1, 2, 3, 4, 6, 8, and 10 of the Second Amended Information. On or about November 9, 1976, Theodore Michael Lakos was adjudicated guilty of the charges alleged in Counts 1, 2, 3, 4, 6, 8, and 10 of the Second Admended Information. Sentencing was stayed for a period of ten years, during which time the Defendant will be on probation under the supervision of the Florida Parole Commission. A copy of the Judgment and Sentence was received in evidence at the hearing as Plaintiff's Exhibit 4. In accordance with the Defendant's plea of nolo contendere, and the court's judgment, it is found that the Defendant, Theodore Michael Lakos, did knowingly, unlawfully and feloniously agree, conspire and confederate with others to commit the felony of breaking and entering, in violation of Sections 833.04 and 810.01, Florida Statutes, as charged in Count 1 of the Second Amended Information. It is found that the Defendant, between March 1, 1975, and up to and including, on or about March 28, 1975, knowingly, unlawfully and feloniously agreed, conspired, and confederated with others to commit the felony of grand larceny, in violation of Sections 833.04 and 811.021, Florida Statutes, as charged in Count 2 of the Second Amended Information. It is found that the Defendant between, on or about March 1, 1975, ad up to and including, on or about March 28, 1975, knowingly, unlawfully and feloniously agreed, conspired and confederated with others to commit the felony of first degree larceny, in violation of Sections 833.04 and 806.01, Florida Statutes, as charged in Count 3 of the Second Amended Information. It is found that the Defendant, between on or about March 29, 1975, and up to and including on or about April 18, 1975, knowingly, unlawfully and feloniously agreed, conspired, and confederated with others to commit the felony of grand larceny in violation of Section 833.04, and 811.021, Florida Statutes, as charged in Count 4 of the Second Amended Information. It is found that the Defendant, on or about March 28, 1975, aided, abetted, counselled, or otherwise procured as a principal in the first degree the commission of a felony, to wit: breaking and entering, in that he aided, abetted, counselled, or otherwise procured others to unlawfully break and enter a dwelling house with intent to commit a felony, to wit: grand larceny in violation of Sections 776.011 and 810.01, Florida Statutes, as charged in Count 6 of the Second Amended Information. It is found that the Defendant on or about March 28, 1975, aided, abetted, counselled or otherwise procured as a principal in the first degree, the commission of a felony, to wit: grand larceny, in that he aided abetted, counselled, or otherwise procured others to unlawfully take, steal, and carry away certain property of the aggregate value of more than one hundred dollars, in violation of Sections 776.011 and 811.021, Florida Statutes, as charged in Count 8 of the Second Amended Information. It is found that the Defendant on or about March 28, 1975, aided, abetted, counselled, or otherwise procured as a principal in the first degree the commission of a felony, to wit: first degree arson, in that he aided, abetted, counselled, or otherwise procured another to willfully and maliciously set fire to a dwelling house in violation of Sections 776.011 and 806.01, Florida Statutes, as charged in Count 10 of the Second Amended Information.
The Issue Whether or not Respondent is 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, all in violation of Subsection 475.25(1)(b), Florida Statutes., and, if so, what administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules promulgated thereunder. Respondent, Richard J. Mitchell, is now and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0396926 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as an involuntary inactive salesman with a home address of 2118 South Tuttle Avenue in Sarasota, Florida 33239. On June 6, 1986, Respondent and Janine Martel (Martel) entered into a contract for the purchase and sale of real property, wherein Respondent agreed to convey his one-half interest in a house that Martel had been renting from him in Sarasota. The remaining one-half interest was held by James Ward. (Petitioner's Exhibit 2.) Prior to Respondent's conveyance of the real property to Martel, Respondent assured Martel that there was only one mortgage which encumbered the property and that he would undertake the necessary steps to insure that Martel would be able to assume the underlying first mortgage in favor of Stockton, Whatley, Davin & Company. Respondent also assured Martel that he would resolve any other adverse interest which affected or otherwise encumbered the house. Martel rented from Respondent for an extended period and he periodically advised her regarding the purchase of real property based on his knowledge of real estate transactions and his regular discussions with Martel. As a result of those discussions, Martel placed a great deal of trust and reliance on representations made by Respondent. Martel and Respondent agreed to close on the contract for the purchase and sale of the property on July 11, 1986. On that date, Respondent executed a quit claim deed to Martel conveying his one-half interest in the property to Martel. Throughout the closing, Respondent concealed from Martel the true status of his interest in the property including several recorded liens which encumbered the property at the time of conveyance. By doing so, Respondent misrepresented and concealed from Martel encumbrances which affects the property. Respondent made the above-referred misrepresentations and concealments in order to effectuate the transaction for personal monetary gain. After Martel closed on the purchase, she discovered that persons other than Respondent and James Ward claimed legal and/or equitable interest in the property and that the property was encumbered by a second mortgage in the amount of $3,700.00. Upon Martel's discovery of the misrepresentations by Respondent, Martel initiated a civil suit against Respondent which resulted in her obtaining a default final judgment against Respondent in the amount of $13,864.00 in the Circuit Court of Sarasota County, Florida, on or about August 1, 1988. (Petitioner's Exhibit 4.) Respondent did not appear at the hearing to contest or otherwise refute the administrative charges filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's real estate license for a period of two (2) years. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1990.
Findings Of Fact Respondent has been a licensed real estate broker salesman in the State of Florida at all times material hereto having been issued license number 0158288 in accordance with Chapter 475, Florida Statutes. On June 10, 1985 a Recommended Order was entered by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118 concerning Respondent, which recommended that "a Final Order be issued suspending Respondent's license for a period of two (2) years and imposing an administrative fine in the amount of one thousand dollars ($1,000)." On July 16, 1985 the Florida Real Estate Commission entered a Final Order imposing the penalty against Respondent which had been recommended by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118. The Final Order provided further that, "This Order shall be effective thirty (30) days from the date of filing, with the Clerk of the Department of Professional Regulation." The Final Order was filed with the Clerk of the Department of Professional Regulation on July 24, 1985. To date, Respondent has not paid the $1,000 fine imposed by the Florida Real Estate Commission in Division of Administrative Hearings Case Number 85- 0118. Petitioner contends that Respondent was required to pay the $1,000 fine within thirty (30) days of entry of the Final Order, referenced above. Rule 21V-10.31, Florida Administrative Code, imposes a thirty-day time limit for the payment of fines imposed by the Florida Real Estate Commission from the date of imposition by order of the Commission.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license-number 0158288. DONE AND ENTERED this 24th day of November, 1986 in Tallahassee, Florida. DONALD D. CONN 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 24th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0989 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 3. Adopted in Findings of Fact 3 and 4. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Roy Ahringer 232 Harmony Avenue Lake Placid, Florida 33852 Harold Huff Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact During times material to the allegations of the administrative complaints filed herein, the Respondents were registered real estate salesmen in the employ of Theodore Dorwin, a registered real estate broker, and at all times material herein, Darwin was the active firm member broker for Intermart, Inc. Raymond Lewis, a salesman employed by Dorwin during the period December, 1975 through mid February, 1976, as a real estate salesman, was initially employed by Florida Landowners Service Bureau. During mid February, 1976, he testified that the name Florida Landowners Service Bureau was changed to Intermart, Inc., and that approximately during this period, he left the employ of Intermart, Inc. He testified that the offices were situated on northwest 79th Street, which consisted of a large room containing six cubicles where salesmen manned the telephones in the cubicles during the hours of approximately 6:00PM through 10:30PM during week days and during the early afternoon and evening hours on weekends. Salesmen were given lead cards which were apparently compiled from the county tax rolls from which a list was given containing out of state landowners. Employees, based on a "pitch" card called out of state land owners to determine their interest in selling their property. He described the procedure as a "front" when an out of state landowner was called to determine interest in selling their land. The "close" procedure was a method whereby those property owners who had displayed some interest in selling their properties were mailed a packet of materials which, among other things, contained a listing agreement. Salespersons were compensated approximately $100 to $125 for each listing secured by an executed listing agreement which in most instances represented approximately one third of the listing fee. During the course of a normal day, salesmen would contact approximately thirty landowners and they would be given estimates of the prospective selling price of their land based on the location of the property and the length of time that the owner had held it. The testimony of Lewis, which is representative of that given by later witnesses including Jeffrey Barker, August Graser, David Cotton and Henry Halar (all salesmen employed by Dorwin) reveals that property owners were called to determine their interest and if interest was noted, follow-up calls would be made after a packet of materials was sent to interested landowners. After a listing arrangement was obtained, salesmen were compensated by payment of an amount representing approximately one-third of the listing fee. In the case of a listing fee obtained by two or more salespersons, the fee (commission) was divided according to the number of salespersons instrumental in obtaining the listing. Each salesman who testified indicated that they made no guarantee that a sale would be consummated within a definite period nor were they familiar, in any particulars, with the brokerage efforts to sell the properties of owners who listed their property with Intermart. Theodore Dorwin, the active firm member broker for Intermart, Inc., was subpoenaed and testified that he had no copies of the records which were subpoenaed showing the operations of Intermart, Inc. In this regard, Raymond Lewis also testified that he had no corporate records respecting Intermart. Both witnesses testified that all corporate records of Intermart had been subpoenaed and were in the custody of the Attorney General for more than one year. Dorwin refused to give any testimony respecting the operational workings of Intermart, Inc., based on fifth amendment self incrimination grounds. The Commission's counsel took the position during the course of the hearing that Mr. Dorwin had waived any and all fifth amendment rights or privileges by virtue of having personally testified in a similar matter before the Florida Real Estate Commission in a proceeding undertaken to revoke or suspend his license as a real estate broker. Having voluntarily taken the stand in that proceeding, the Commission concludes that he is not now entitled to any fifth amendment protections. As evidence of Mr. Dorwin's having voluntarily taken the stand in the prior proceeding, excerpts of the testimony from that proceeding was introduced into evidence. (See FREC Exhibit number 8). Having considered the legal authorities and the arguments of counsel, the undersigned is of the opinion that testimony given by a party in a separate proceeding to which the Respondents were not party to and of which the Respondents had no notice of cannot serve in lieu of evidence on which findings of fact can be based to substantiate allegations pending in the instant case. To do so, would possibly leave open the door for highly prejudicial and damaging testimony to which the Respondents here had no opportunity to rebut, cross examine or otherwise explain, all of which is inherently destructive of their basic rights, fairness and fundamental due process. The cases of Hargis v. FREC 174 So.2d 419 and Vann, 85 So.2d 133 are not deemed inapposite to the conclusion reached here. The fact that the State's Attorney General is currently conducting an investigation into the operations of Intermart makes clear that the possibility of criminal action or other sanctions exist (e.g. tax problems). For these reasons, I conclude that Dorwin's testimony in a prior proceeding, amounts to no waiver of his constitutional privilege. For these reasons, exhibit number 8 will not be considered as evidence herein. Having so concluded, the record is barren of any evidence, hearsay or otherwise, which would tend to establish in a competent and substantial manner, that the Respondents herein had engaged in conduct alleged as violative of Chapter 475.25, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the administrative complaints filed herein be dismissed in their entirety. RECOMMENDED this 18th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent is a registered real estate broker and was so licensed at all times relevant to this proceeding. At the time of the alleged forgeries, Respondent was an officer of John F. Ring Realty, Inc., and was the manager of that firm's office at 201 North University Drive, Ft. Lauderdale, Florida. On June 25, 1980, Respondent wrote two checks on the account of John F. Ring Realty, Inc., payable to Phyllis Cohen in the sum of $425, and to Ann Sanders in the sum of $550. On July 10, 1980, and on the same account, Respondent wrote a second check to Phyllis Cohen in the amount of $1,000. On September 19, 1980, on the same account, Respondent wrote a check payable to Dan Dickerhoff in the sum of $1,210. Respondent wrote a fifth check on this account on September 26, 1980, payable to Rose Friedman, in the sum of $815. All of these checks were purportedly written to cover sales commissions. Each check bore an endorsement which was purportedly that of the payee, and was endorsed by Respondent. Each named payee testified that the endorsement was not his or her signature, that he or she was not entitled to the funds represented by the checks, and never received the check or the funds. Each identified the signature of Respondent as the drawer. Respondent admitted to his ex-partner, Petitioner's investigator and Phyllis Cohen that he had endorsed and cashed these checks. Respondent also apologized to Ann Sanders when she confronted him with the forgery. These were statements against interest and are therefore admissible as hearsay exceptions. 1/ Respondent's character witnesses established that he has a good reputation in the realtors community. These witnesses have found Respondent to be honest and reliable, and would continue doing business with him regardless of any adverse findings here.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of allegations set forth in the Administrative Complaint. It is further RECOMMENDED that Respondent's license as a real estate broker be revoked. DONE AND ENTERED this 28th day of December, 1981, in Tallahassee, Florida. R. T. CARPENTER, 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 28th day of December, 1981.
