Findings Of Fact Kirk was a registered real estate broker licensed by the Florida Real Estate Commission at all times relative to the Administrative Complaint. Juneau Edwards negotiated a valid and binding contract for sale between Wilbur Davis as seller and Julius and Elizabeth Lau as buyers. The Laus paid $500 as a deposit under the contract on October 3, 1975 to Edwards. The contract, Exhibit 3, contains the following provisions: "Full purchase price $27,500, payable $27,500 in cash, of which the deposit shall apply as part and sale be held by said agent (Kirk Realty) in escrow pending closing of transaction, balance payable in the following manner: Cash at closing, contingent upon buyer se- curing first mortgage loan from Mid- State Federal Savings and Loan Association of Dunnellon, Florida. . ." The contract also contains a provision that the buyer forfeits his deposit if he fails to perform under the terms of the contract. The Laus submitted an application for a first mortgage in the amount of $21,000 on October 6, 1975, which was disapproved for that amount. Disapproval was communicated to the Laus by a letter from David L. Belcher dated October 15, 1975, Exhibit 7. The evidence reveals that the amount of the loan requested exceeded 80 percent of the appraised value of the Davis property by $34,000. Pursuant to the contingency provision of the contract, the contract was void when then loan request was disapproved. However, when the Laus met with Edwards and Kirk they advised them that the loan had not been approved in the amount requested, but did not demand the refund of their $500.00 deposit. Instead, when Kirk and Edwards suggested that Davis be advised and negotiations for a lower price for different terms be undertaken, the Laus assented to this. Arrangements were made by Kirk for such a meeting between Davis and the Laus; however, the Laus did not attend this meeting because they had become interested in a second house which they ultimately purchased. On October 23, 1975, the Laus applied for a mortgage to Mid-State to purchase another house using their initial application and changing the amount of the loan request to $17,500. This application was approved and the Laus closed on the second house. The Laus did not tell Kirk of their other negotiations on the second house and Kirk learned of the Lau's contract for the second house through Mid-State. After contracting to purchase the second house, the Laus contacted Kirk Realty requesting a refund of the $500 deposit paid on the Davis contract. Kirk visited the Laus at their new house and advised them that he considered them in default under the Davis contract. Kirk distributed the money to Davis and Kirk Realty on December 5, 1975 under the forfeiture provisions of the contract.
Recommendation The Hearing Officer, based on the foregoing Findings of Fact and Conclusions of Law, and considering the factors in mitigation mentioned above, would recommend that Kirk be ordered to pay Lau $500 and receive a letter of admonition. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 APPENDIX A The proposed findings regarding the contract and its provisions between the Laus and Davis presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 2 of the Recommended Order. The proposed findings regarding the negotiations before and after the disapproval of the loan application between the Laus and Juneau Edwards, a/k/a Zerban, presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 3 of the Recommended Order. The proposed findings regarding the submission of the loan application to Mid-State Federal Savings and Loan Association and its disapproval presented in paragraph 1 of the Proposed Recommended Order are contained in paragraph 3 of the Recommended Order. The testimony of Belcher in his deposition clearly established that it was disapproved for the amount sought. The proposed findings that the Lau-Davis contract was valid presented in paragraph 2 of the Proposed Recommendation Order is contained in paragraph 2 of the Recommended Order. The proposed finding that the Laus failed to make demand for their deposit presented in paragraph 3 of the Proposed Recommended Order is contrary to the testimony and evidence which indicated that the Laus delayed in making demand for return of their deposit as found in paragraph 3 of the Recommended Order and later requested their money back after contracting to purchase the second house as found in paragraph 4 of the Recommended Order. The proposed finding that the Laus breached the contract is a legal conclusion contrary to that reached by the Hearing Officer based upon the contingency provision of the contract which made the contract contingent upon approval of the Lau's loan application. When that application was disapproved, the contact became void. Therefore, the Laus could not have breached it. The Lau's representations to Kirk that Kirk should continue negotiations with Davis does not create another contract between Davis and the Laus; however, it can and has been considered in mitigation of the impression the Laus gave Kirk regarding their continued interest in the Davis property which lead Kirk to the erroneous conclusion the Laus had breached the contract. The proposed finding that there was no violation of Section 475.25(1)(c) presented in paragraph 4 of the Proposed Recommended Order Conclusions of Law is contrary to the evidence and testimony. The Proposed Recommended Order has been fully considered by the Hearing Officer this 19th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Daniel Hicks, Esquire Tucker, Hicks, Blanchard, Brannen, Dirlam and Stillwell, P.A. Post Office Box 24 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, an Agency of the State of Florida Petitioner, PROGRESS DOCKET NO. 3182 MARION COUNTY vs. CASE NO. 77-685 TYREE C. KING, t/a KIRK REALTY, Respondent. /
The Issue The Administrative Complaint alleges Respondents violated Section 475.25(1)(b), Florida Statutes, by committing certain acts which were fraudulent or were misrepresentations or concealed material facts. The issues are whether the Respondents committed the acts alleged and, if so, did their conduct constitute a violation of Section 475.25(1)(b), Florida Statutes. Both parties submitted proposed findings which were read and considered. To the extent that the findings herein differ from the findings proposed, it is because the proposed findings were not relevant or material to the issues, were not based upon the most credible evidence, or were not findings of fact.
Findings Of Fact The Respondents, Norman D. Rathbun and Dianna A. Stolpman, are real estate brokers having been issued license numbers 0072024 and 0085366 respectively. The last known address of Respondents is c/o Mark Realty, Inc., 130 Fifth Avenue, Indialantic, Florida. Respondents are now and were at all times alleged herein licensed real estate brokers in the State of Florida. In February of 1980, Rathbun discussed with Gene Myers at Myers' behest a financial arrangement by which Myers, who had been trying to sell a house which he and his wife owned and were leasing, could obtain immediate cash to go to California. On February 4, 1980, they entered into a written agreement which provided in general terms that the Respondents would give the Myers $5,000 in cash, would assume financial responsibility for the three mortgage payments on the house, would manage the rental of the property, and would attempt to sell the house for which Respondents would receive a $3,000 commission and split the proceeds of the sale of the house with the Myers less the moneys the Respondents had expended. Upon discovering an outstanding judgment against the property of over $1,000, the Respondents prepared an amended agreement which provided that they would give the Myers $4,000 in cash and pay the outstanding judgment. This amendment was executed on February 8, 1980, at which time the Myers executed a warranty deed conveying the property to the Respondents. All of the parties were aware of their mutual obligations and the benefits they were to obtain from the agreement, and the Myers executed the warranty deed with a full understanding that they were conveying their right in the property to the Respondents subject to the terms of this agreement. Although conflicting testimony was received about whether the deed would be recorded by the Respondents, the documents and actions of the parties show the Myers were aware that the deed was in exchange for the cash and promises they received and that it would be recorded if necessary to secure the Respondents' interests (i.e., if the Myers were killed in an automobile accident) although the Respondents did not anticipate filing the deed. In early May of 1980, the Myers, who were living in California, determined they wanted to return to Florida. Gene Myers called Rathbun and asked if they could get the house back. Rathbun consulted Stolpman and, as a result, a letter was sent to the Myers on or about May 2, 1980, setting forth the terms under which the Myers could have the house back. The Myers did not comply with the terms of this letter until September 5, 1980, when they tendered the money to the Respondents. Upon tendering the money in return for rescinding their previous agreement, the Respondents reconveyed the property. Before the agreement was rescinded, Respondents continued to deal with the property as its owners limited only by the written agreement. The Myers had no legal right prior to September 5, 1980, to direct the Respondents to return the house to the Myers' possession or to cease their efforts to sell the property. The Respondents did all the things which they were required to do under the agreement and at all times met their obligations under the agreement. On or about May 10, 1980, when the Myers had returned to Florida, Gene Myers told Rathbun that he did not want the house sold, and that he could cut off the Respondents' rights by conveying the property to a relative. On May 12, 1980, in response to Myers' comment about cutting off their rights in the property, the Respondents filed the deed executed by the Myers conveying the property to the Respondents. On June 30, 1980, the Myers filed a claim of financial interest in the property with the local circuit court clerk. No evidence exists that the Respondents were served with this claim. Respondents continued their efforts to sell the property and on July 1, 1980, obtained a contract for sale on the property for a price that was within the limits established under their agreement with the Myers. Closing on the contract was to be on Friday August 1, 1980. On July 21, 1980, through their attorney, the Myers filed suit against the Respondents, who were served with the suit and a lis pendens on July 24, 1980. On July 25, 1980, Respondents met with their attorney, who called the Myers' attorney. Arrangements were made to meet on August 4, 1980, to discuss resolution of the suit. Between July 25 and August 1, 1980, Respondents did not notify the buyers or the buyers' agent that a suit was pending regarding the property. On or about July 31, 1980, the Myers reoccupied the house and on August 1, 1980, advised the buyers that they were the owners, not the Respondents. The buyers, their attorney and their real estate agent attended the scheduled closing. Rathbun arrived late, at which time the pending litigation and the Myers' claims were being discussed. Rathbun advised the group that he and his attorney were already scheduled to meet with the Myers and their attorney the following Monday, and that he felt the matter could be resolved. On August 2, 1980, the buyers elected to withdraw their offer. On August 4, the Respondents and the Myers reached a tentative agreement for the Myers' continued possession of the property. This resulted in a written agreement dated September 5, 1980. The terms of this agreement were substantially the same as the terms stated in the letter to Myers of May 2, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission dismiss the allegations of the Administrative Complaint against the Respondents. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Michael Krasny, Esquire 416 South Babcock Street Post Office Box 1376 Melbourne, Florida 32901 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. ,Shorstein, Secretary Department of Professional Regulation 130 North Monroe Streets Tallahassee, Florida 32301
Findings Of Fact In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case. RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of June, 1986. COPIES FURNISHED: John B. Root, III Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A. 338 N. Magnolia Avenue, Suite D Orlando, Florida 32801 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DEPARTMENT OF BANKING AND FINANCE, Petitioner vs. CASE No. 86-0328 TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision: In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing. DATED this 13th day of May, 1986. JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE Office of the Comptroller GORHAM RUTTER, JR., P.A. 400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801 ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT Telephone: (305) 423-5116 Telephone: (305) 841-7667 TERRY E. CHRISTENSEN, Respondent EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0024293 TERRY E. CHRISTENSEN, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, CASE NO. 0021931 vs. TEC REALTY, INC. AND TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case. STIPULATED FACTS AND CONCLUSIONS OF LAW Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505. Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo". Respondents admit that they are subject to the provisions of Chapters 455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto). Respondents admit that the Administrative Complaint contains no disputed issues of material fact. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act. STIPULATED DISPOSITION Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation. SIGNED this day of , 1983. (filed document undated) SWORN TO AND SUBSCRIBED Respondents before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC Realty, Inc. Notary Public My Commission Expires: Notary Public, State of Florida My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc. Approved this 21st day of June, 1983. John Huskins, Staff Attorney Department of Professional Regulation Legal Section 400 West Robinson Street, 308 Post Office Box 1900 Orlando, Florida 32802 (305) 423-6134 Approved this 13th Fred Roche, Secretary day of June, 1983. Department of Professional Regulation JH/dm 6/6/83 EXHIBIT 2 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 0024293 DOAH NO. 83-346 TERRY E. CHRISTENSEN and TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345 Respondents /
The Issue Whether respondents' real estate licenses should be revoked, suspended, or otherwise disciplined on charges of false promises, misrepresentation, culpable negligence, and breach of trust in a business transaction.
Findings Of Fact Respondent Terry L. Baker is now and was at all times material to the charges a licensed real estate broker holding license no. 204679. (P-1) He also was president, secretary, and treasurer of respondent Terry L. Baker and Associates, Inc., a licensed real estate brokerage corporation (lic. no. 213974) located at 1418 West Edgewood Avenue, Jacksonville, Florida. There are no other officers, directors, or members of this brokerage corporation; respondent owns 100 percent of the capital stock. (P-1) Respondent was, and continues to be, the active broker for this real estate brokerage corporation. (P-1) On July 21, 1982, respondent assisted in the negotiation and closing of a real estate sales transaction between Dolores B. Hawkins, as seller, and James W. and Patricia L. Dobson, as purchasers. The real estate involved was a residential lot and dwelling unit located at 7065 Bishop Hatcher Drive East, Jacksonville, Florida, and was, at the time, the subject of a mortgage foreclosure proceeding. (Testimony of Hawkins, Baker; P-2, P-6) The real estate sales contract was signed by the seller and buyers on July 21, 1982. At that time, respondent submitted a written estimate of the seller's closing costs. This estimate, signed by both respondent and the seller, showed that the seller would net $1,598.25 from the transaction. It was specifically noted that this net figure did not include an Atlantic Bank payment. This payment was a recognized obligation of the seller and was required to obtain the release of a record judgment lien held by the bank. Ms. Hawkins, the seller, understood that this payment was her obligation and was not included in the $1,598.25 figure. The written estimate also included seller's cost of approximately $2,000 for attorney's fees and back mortgage payments. The attorney's fees were related to the legal costs associated with the mortgage foreclosure proceeding. An existing mortgage balance, to be assumed by the buyers, was listed as approximately $19,000. (Testimony of Hawkins, Baker; P-3) On two separate occasions prior to closing, respondent told seller Hawkins that there had been an increase in the charge for attorney's fees associated with the mortgage foreclosure. (Testimony of Hawkins, respondent) Prior to closing, respondent loaned seller Hawkins $220 to help her pay her apartment rent. They agreed that the loan would be repaid out of the proceeds from the sale of her property. (Testimony of Hawkins, Baker; P-4) At closing on August 17, 1982, respondent presented the seller with a Seller's Closing Statement listing various charges to the seller, including the loan repayment of $220, the payment to Atlantic Bank (for release of lien) of $425, attorney's fees of $638.50, and an assumed mortgage of $19,847.51. The net amount due the seller was $675.82. The buyers paid the balance due at closing and the seller delivered the warranty deed to respondent for recording. A couple of days later, respondent, in turn, wrote a check for $675.82 and delivered it to the seller as net proceeds from the sale. Payment of respondent's commission was shared by the seller and buyers at closing. Respondent received the warranty deed at closing and the parties to the transaction expected him to have it recorded. He accepted this duty and undertook to perform it. However, he did not record the warranty deed on the public records until October 4, 1982--almost three months later--after repeated requests by the mortgage service company for a copy of the recorded deed. The delay was caused by respondent's waiting to receive a release of the Atlantic Bank lien so that he could record the two instruments at the same time. But after repeated requests for a copy of the recorded deed, he finally recorded it even though he had not yet received the release of lien. (Testimony of Baker, Hawkins, Dobson) Contrary to the Department's contention, respondent's delay in recording the deed does not constitute culpable negligence, false promises, misrepresentation, or breach of trust in a business transaction. His lack of diligence in recording the deed is, instead, an act of simple negligence. His carelessness exposed the buyers to unnecessary risk. During this delay of almost three months, the seller, while record titleholder, could have reconveyed the property or subjected it to additional encumbrances. Respondent, in delaying recordation almost three months, failed to exercise that degree of care which a reasonable man, in the same situation and with similar experience, would not have omitted. His failure to exercise due care does not, however, demonstrate willful, wanton, or reckless disregard for the rights of others. The Department also charges that respondent did not have--at time of closing--the lien of Atlantic Bank satisfied. Prior to closing, the respondent- -on behalf of the seller--negotiated the outstanding debt with attorneys for Atlantic Bank: He was told that the bank would accept fifty cents on the dollar, or $425. Thereafter, respondent collected this amount as a charge to the seller at closing. (Testimony of respondent) Respondent, however, did not have an executed release of lien form, or the judgment lien satisfied, at closing. He asserts--without contradiction-- that the bank's attorney at first offered to prepare the release, but later asked respondent to do so. By the time of closing, respondent had been either unable to obtain the release from the attorney, or he had been unable to obtain and complete the form on his own. When asked why he proceeded to close the transaction although the release had not been obtained, he states that both buyers and seller consented to the closing because the property was facing foreclosure. Respondent's assertion that the parties consented to closing, in the absence of a release of lien, is unrefuted and accepted as fact. No evidence was presented that, in light of the parties' consent, closing of the transaction was improper.
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint, and all charges contained therein, be dismissed for failure of proof. DONE and ENTERED this 23rd day of September, 1983, 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 23rd day of September, 1983.
Findings Of Fact Respondent, Janis K. Hinsch (Hinsch), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0350063. Hinsch was the vice president and sole qualifying broker of Respondent, Huntco of Marco, Inc., a Florida corporation, licensed as a real estate broker in the State of Florida, license No. 0222987. During all times material hereto Huntco was the owner of the Sea Oats Beach Club, a condominium located in Charlotte County, Florida. Huntco marketed the Sea Oats Beach Club under a time-share plan. The gravamen of the complaint in this case involves the sale of eight time-share units during the period of April 9, 1983 through August 11, 1983. The purchase agreements executed by the eight purchasers in question provided in pertinent part: 8. CLOSING AND TITLE At closing, . . . Seller shall deliver its warranty deed conveying fee title to the Unit Week(s) to Buyer under a plan of Interval Ownership as defined in the Declaration of Condominium . . . . The closing will be . . . not later than one (1) year from the date of this Agreement. Petitioner contends Hinsch and Huntco are guilty of violating Section 475.25(1)(b), Florida Statutes, because the deeds for the eight units were not delivered to the clerk of the court for recording within one year of the date the purchase agreements were executed. Petitioner's assertion is ill-founded. The deeds for each of the units in question were executed within 30 days of the date the purchase agreements were executed. The deeds, together with other pertinent documents, were delivered to a title company for closing and for issuance of an owner's title insurance policy. The title company, subsequent to closing, was to have forwarded the deed to the clerk for recording and, upon return of the recorded deed by the clerk, to have delivered the deed to the purchaser(s). However, the title company, through a clerical error, failed to deliver the deeds for these eight units to the clerk for recording. Respondent, upon receiving notice that purchasers had not received their deeds, immediately inquired of the title company to discern the reason, the error was discovered, and the deeds were promptly recorded. Admittedly, the deeds were not recorded within one year of the date the purchase agreements were executed, but the purchase agreements only required that the closing be held within one year. There is no evidence to suggest that the deeds in question were not delivered to the title company, or that these transactions were not closed, within one year of the date the purchase agreements were executed.
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 Martinez is now, and was at all times rolevant to this case, the holder of Real Estate Broker's License 0056092. On May 2, 1978 (all events in 1978) , Martinez entered a contract to purchase a certain lot in Heads Farms Subdivision in Dade County from Ramone Perez for $22,000 ($500 with contract, $5,000 at closing, assume $7,000 first mortgage and give $10,000 second mortgage to Perez). Closing was to be in 45 days, however, this was extended for 30 days on August 1st; closing was subject to receipt by Martinez of abstract (which was not received timely) and a mortgage estoppel letter (never furnished to Martinez). Martinez assigned this contract on August 1st to Jorge Barbontin, who was to pay $30,000 cash on closing, for a profit of $8,000 to Martinez. This assignment was released August 29th. On August 31st, Broker Balaguer negotiated a contract to sell the involved property to Complainant King for $32,500 cash, of which $2,500 was to be Balaguer's commission. Release of this contract was obtained September 30th. Meantime, on September 21st, Perez conveyed his fee simple interest in the lot to Maryland Properties, Inc. Maryland is owned by one Blanco, who also owned and/or controlled the corporation that held Perez's $7,000 first mortgage on the lot and would not furnish the estoppel letter to Martinez (Santander Investment Corporation)
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that real estate broker's license 0056092 held by Orestes Martinez be suspended for a period of one year. DONE and RECOMMENDED this 15th day of January, 1981. H. E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 15th day of January, 1981. COPIES FURNISHED: S. Ralph Fetner, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 John S. Post, Esquire 1575 West 49th Street, Suite 115 Hialeah, Florida 33012 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent Lynde1 Gale Goodwin is a licensed real estate broker with license number 0032681 Respondent Florida Appraisal Department, Inc., is a corporation licensed as a broker having been issued license number 0233195. Goodwin's last license was issued as a broker c/o Florida Appraisal Department, Inc., at 2990 North Federal Highway, Ft Lauderdale, Florida 33306 which is the business address of Florida Appraisal Department, Inc. Respondent Goodwin was operating as a real estate broker and as sole qualifying broker and officer of Florida Appraisal Department, Inc., at all times material hereto. On or about March 21, l984 an appraisal on certain real property owned by Robert and Martha Silva, located at 633 Lime Lane, Marathon, Florida was completed and submitted to Government Employees Corporation on behalf of Respondents by Charles Stange, an associate of Respondent Goodwin. At the time Stange held a real estate salesman's license, was receiving training from Goodwin on appraising and was also investing in Florida Appraisa1 Department, Inc. Stange bad been assigned the Silva appraisal by Respondent Goodwin, who accompanied him on a trip to Marathon to inspect the property and to locate comparable properties on which to base the appraisal. When they arrived in Marathon, Stange initially dropped Goodwin off so he could take care of some other business, and Stange proceeded to the Silva property, entered the house, drew a sketch. took picture6 and also attempted to locate three comparables. After completing his business, Goodwin joined Stange and assisted with the measurement of the Silva property. When they returned to their offices at Florida Appraisal Department, Inc , Stange prepared a draft of the appraisal report on the Silva property. When Respondent Goodwin reviewed this draft, he noted a problem with two of the comparables and instructed Stange to get two more comparables since the ones he had chosen were not suitable. Stange objected to having to locate two more comparables because it meant having to make another trip to Marathon. He did not return to Marathon, but redrafted the appraisal using falsified comparables. The addresses he used included what was, in fact, a trailer park and a non-existent address. He also showed the source of these comparables as "Realtron" which is a computerized multiple listing service that does not even serve Marathon. The falsified appraisal was submitted to Government Employees Corporation on or about March 21, 1984 over Respondent Goodwin's signature, and based thereon a loan was approved. Respondent Goodwin does not remember signing the Silva appraisal and disputes the signature appearing thereon as being his. However, after weighing all the evidence and demeanor of the witnesses, it appears that Stange simply changed the information on two of the Silva comparables to satisfy Goodwin's concerns, and presented the redrafted appraisal to Goodwin who assumed, but did not check, that Stange had return d to Marathon to obtain the corrected comparable data. Goodwin thereupon signed the Silva appraisal and it was submitted to Government Employees Corporation. Stange and Goodwin split a $150 fee for this appraisal. Respondent Goodwin does not routinely follow up on appraisal he has assigned to others to perform even though some of those appraisals are sent out over his signature. He has no way of knowing if an appraisal is overdue, other than by the person who ordered it calling to ask about the status. Florida Appraisal Department, Inc., does over 1,000 appraisals a year and employs seven licensees and two clericals. The Silva appraisal report misrepresented that the subject property had been analyzed with reference to single family residential property in the area that had been sold in the last six (6) months. It further misrepresented two of the comparables, one of which was non-existent and the other of which was a trailer park. Finally, the appraisal misrepresented the source of the comparables by indicating "Realtron" which in fact does not serve the Marathon area. Government Employees Corporation required Respondent Goodwin's signature to appear on all appraisals it ordered from Florida Appraisa1 Department, Inc.
