The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, 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 26th day of March, 1982.
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. WILLIAM B. THOMAS, 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 27 day of September, 1982.
The Issue Whether Respondent's registration as a real estate broker should be suspended or revoked for alleged violations of Sections 475.25(1)(a) , (i) & (j) , Florida Statutes. The Respondent appeared at the hearing without legal counsel and was advised as to his right to be represented by legal counsel at his own expense. He elected to represent himself at the hearing. He was also advised of his rights under the Administrative Procedure Act, including his right to testify under oath if he so desired, and he indicated his understanding of these rights. The hearing officer advised counsel for Petitioner that although the Administrative Complaint contained an alleged violation of Section 475.25(1)(i), this violation was not stated in the Notice of Hearing. Petitioner's counsel stated that Paragraph 2, Count 2, of the Administrative Complaint stated a violation of that subsection, but that it had not been alleged as a separate ground therein for adverse action. However, counsel stated that if the evidence presented indicated such a violation, Petitioner would amend its complaint at that time to conform to the evidence, and that it desired to present evidence concerning such a possible violation. At the conclusion of the hearing, Petitioner requested that this alleged violation be included in its Complaint. Respondent was advised that he could request a continuance if necessary to defend against the additional allegation, but he stated that he was able to defend against it without need for a continuance.
Findings Of Fact Respondent was a registered real estate broker during the period when the alleged violations occurred and is currently registered in the same capacity. (Petitioner's Exhibit 9). On or about February 27, 1973, Respondent was the real estate broker for Associated Real Estate of Broward, Inc., a Florida Corporation, in which he owned all of the stock. On that date, one Lawrence Tellschow delivered to Respondent a check in the sum of 4000.00 as a deposit upon property which he desired to purchase from Louise M. Orner, located in Boca Raton, Florida. Tellschow signed a deposit receipt contract on that date which provided on the reverse under "Deposit" that "(Checks issued for the deposit on this contract will be deposited promptly for clearance (after acceptance of this contract by all parties) and the holder of the deposit will not be responsible for the nonpayment of checks". Respondent thereupon obtained the signature of the seller on the contract and returned to his office at which time Tellschow told him not to deposit the check in the escrow account because he had no bank and the check was no good. He further stated that someone else was supposed to give him a check for the deposit, but had not done so. Respondent thereupon returned the check to Tellschow, called up the seller's son and informed him that there was no contract and that he would send a letter to that effect. He did so on March 1st, wherein it was stated that the check did not clear the bank and that after returning the check to Tellschow, the latter had then decided to withdraw his offer. However, Respondent also stated in this letter words that indicated he had not, in fact, deposited the check (Testimony of DeGeorge, Harper, Chappell; Petitioner's Exhibits 1,4,5,6,7) On March 1, 1973, Respondent, Henry Pinelli, Lawrence Tellschow, and Associated Real Estate of Broward, Inc., entered into an agreement whereby Pinelli and Tellschow would contribute monies for the purchase of stock in the corporation, and become officers and directors thereof. The agreement further provided that the corporation would engage in real estate investment and development. It also stated that Pinelli had made certain loans to the corporation for the purchase of properties, that he contemplated making and/or securing additional loans for such purpose, and that he would be entitled to receive a note and mortgage from the corporation as to all such funds. This agreement was modified by a later undated agreement which provided that a certain single family residence under construction at Lighthouse Point, Florida, real property owned by the corporation should be held by the corporation simply as "nominee and for the account of Henry Pinelli" who would assume all obligations and be entitled to all profits derived from said property. It further provided that Respondent and the corporation would have the exclusive right to sell the said property and that the six percent commission there for would go solely to the benefit of Respondent Respondent's Exhibits 1 & 2). The three principals in the corporation had a number of disputes with respect to the activities of the corporation which resulted in the resignation of Tellschow on June 15, 1973, and differences between Respondent and Pinelli as to entitlement to real estate commissions. Although their agreement provided that Respondent would have the exclusive right to sell properties which were acquired by funds advanced by Pinelli (and which were later deeded to him by the corporation), Pinelli gave listings to other realtors for his property located at 3531 N.E. 30th Avenue, Lighthouse Point, Florida. Respondent's conviction that he was being ill-treated by Pinelli led him to place a mechanic's lien on the Lighthouse Point property on November 1, 1973. This lien was predicated upon Respondent allegedly having furnished labor, services or materials consisting of: "exclusive sales agent". On May 9, 1974, the Circuit Court of Broward County, Florida, issued an Order requiring Respondent to remove the claim of lien. Respondent had not had the permission of the owners of the property to place the lien thereon. By the time the lien was removed, various law suits were pending between the parties which had not been resolved (Testimony of Bamman, Henry Pinelli, Patricia Pinelli, Waderlow, DeGeorge; Petitioner's Exhibits 10 & 11: Respondent's Exhibits 4-20).
Recommendation That Respondent Donald D. DeGeorge be issued a written reprimand for violation of Section 475.42(1)(j) , Florida Statutes. DONE and ORDERED this 4th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J.R. Parkinson, Esquire Mr. Donald G. DeGeorge Florida Real Estate Commission c/o Grear Real Estate, Inc. .2699 Lee Road 901 S.E. 17th Causeway Street Winter Park, Florida 32789 Ft. Lauderdale, Florida
The Issue The issues are whether Respondent violated Sections 475.25(1)(a), 475.25(1)(b), 475.25(1)(d), 475.25(1)(e), and 475.25(1)(k), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent Phillip F. Niles, is and was, at times material to this matter, a licensed real estate broker. His license number is 0173298. Respondent's license was inactive from August 2, 1996, through March 31, 1997. It was invalid due to non-renewal from March 31, 1997 through May 28, 1997. From May 29, 1997 through August 20, 1997, Respondent was an active broker. From August 21, 1997 through June 10, 1998, Respondent was an inactive broker. From June 11, 1998, through the date of the formal hearing, Respondent was an active individual broker. The address of his last license was 1700 Ridge Avenue, Holly Hill, Florida 32117. Sam L. Berry owned a condominium located at 840 Center Street, Unit 101, Holly Hill, Florida (hereinafter referred to as the property). Sometime prior to April 27, 1997, Mr. Berry asked Respondent to sell the property. Mr. Berry wanted to receive $20,000 for the property. Mr. Berry told Respondent that he could keep any amount of the sales price in excess of $20,000. Respondent placed an advertisement for the sale of the property in the newspaper. Thereafter, he prepared a Contract for Sale and Purchase (the contract) for the sale of the property with $20,000 as the sales price. The buyer's name was John Richards. Meanwhile, Peggy Holloway became interested in the property after seeing Respondent's advertisement. Ms. Holloway contacted Respondent at the number referenced in the advertisement. Subsequently, she met Respondent at the property. At that time Respondent's broker's license was inactive. Ms. Holloway made an offer on the property. In order to make a commission or profit on the sale, Respondent decided to sell the property to her. He changed the existing contract by marking through Mr. Richard's name and adding Ms. Holloway's name as the buyer. Respondent changed the sales price on the contract to $23,000. On April 27, 1997, Ms. Holloway signed the contract as the buyer. That same day, Mr. Berry signed the contract as seller. As part of the contract, and pursuant to Respondent's instructions, Ms. Holloway made a check out to Respondent, personally, in the amount of $500. Respondent assured Ms. Holloway that he would place the money in an escrow account. The contract stated that the $500 deposit would be held in escrow. Respondent did not place Ms. Holloway's money in escrow. He cashed her check and kept the $500. At all times material to the transaction Ms. Holloway believed that Respondent was a licensed real estate broker. Additionally, the contract contained language stating that Respondent was a real estate broker. During subsequent conversations with Ms. Holloway about financing arrangements for the purchase of the property, Respondent appeared drunk. As a result of those conversations, Ms. Holloway became suspicious about Respondent's intentions and his competence to handle the real estate transaction. Ms. Holloway contacted Petitioner and learned that Respondent's license was inactive. On or about May 6, 1997, Ms. Holloway telephoned Respondent. She told him that she did not want to go through with the contract. She demanded that Respondent return her $500 deposit. Respondent failed to return Ms. Holloway's $500 deposit. Ms. Holloway then began to deal with Respondent's brother, Peter Niles, who is an attorney. Respondent's brother prepared a document for Mr. Berry to sign acknowledging receipt of the $500 deposit. Mr. Berry signed the document prepared by Respondent's brother even though Respondent never gave the $500 deposit to Mr. Berry. Ms. Holloway eventually decided to deal directly with Mr. Berry. They agreed on a sale price and closed the transaction with no assistance from Respondent, his brother, or any other individual. Ms. Holloway sued Respondent in the County Court of Volusia County, Florida. In Case No. 97-31586, the County Judge entered a judgment against Respondent in favor of Ms. Holloway. Respondent had not satisfied the judgment as of the date of the formal hearing.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Florida Real Estate Commission enter a final order suspending Respondent's license for a period of ten years and requiring him to pay a fine in the amount of $1,000 within one year of the date of the final order. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 15th day of June, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Phillip F. Niles 5747 Sweetwater Boulevard Port Orange, Florida 32127 Phillip F. Niles Apartment 503 100 Seabreeze Avenue Daytona Beach, Florida 32118 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the matters involved herein; Petitioner held Florida real estate salesman's license number 0403224. Her license was listed with Century 21 ACR Equities; Inc., 4222 W. Fairfield Drive, Pensacola; on May 25; 1983. On March 4, 1985, Respondent listed her license with Century 21; Five Flags Properties; Inc., in Pensacola, without terminating her listing with ACR Equities. On March 22, 1985, Five Flags terminated her listing with that firm and on April 30; 1985, ACR Equities terminated her listing with that firm. On May 14; 1985; Respondent applied for a change of status to list her license with Old South Properties; Inc., in Pensacola. That firm terminated the association on July 9, 1985. On March 19; 1985; Emmison Lewis and his wife; Lillie Mae signed a handwritten sales agreement prepared by Respondent for the purchase of a piece of property located in Escambia County; for $33,000.00. The Lewises gave her a deposit of $500.00 by check made payable to Respondent and which bears her endorsement on the back. This check was made payable to Respondent because she asked that it be made that way. Several days later; Respondent came back to the Lewises and asked for an additional $1,500.00 deposit. This was given her, along with a rental payment of $310.00; in a $2,000.00 check on March 29, 1985. Respondent gave the Lewises the balance back in cash along with a receipt reflecting the payment of the $1,500.00. On that same date; Respondent had the Lewises sign a typed copy of the sales agreement which reflected that both the $500.00 deposit and the additional $1,500.00 were due on closing. This typed copy was backdated to March 19; 1985. Both the handwritten and typed copies of the sales agreement bear the signature of the Respondent as a witness. The sale was never closed and the Lewises have never received any of the $2;000.00 deposit back. On about four different occasions, Mr. Lewis contacted Respondent requesting that she refund their money and she promised to do so, but never did. They did, however, receive the $310.00 rent payment back in cash approximately two weeks later. On April 26, 1985, James E. Webster and his wife Pearlie signed a sales agreement as the purchasers of real estate with Respondent. This property had a purchase price of $31,900.00. At the time of signing, Mr. Webster gave Respondent $150.00 in cash and a check drawn by his wife on their joint account for $400.00. Due to Mrs. Webster's change of mind, the Websters did not close on the property. They requested a refund of their deposit and Respondent gave the Websters a check for $400.00 which was subsequently dishonored by the bank because of insufficient funds. The Websters called Respondent at home several times, but she was always out. Calls to the broker with whom her license was placed were unsuccessful. Finally, however, Respondent refunded the $400.00 to the Websters in cash. Respondent had listed her license with ACR Equities in May, 1983. At no time while Respondent had her license with Mr. Bickel's firm did she ever turn over to him as broker either the $2.000.00 she received from the Lewises or the $550.00 she received from the Websters. Mr. Bickel, the broker, was not aware of these contracts and did not question her about them. He terminated the placement of her license with his firm because he found out that in early March 1985, she had placed her license with another firm., Both sales agreements for the Lewises and that for the Websters had the firm name of ACR Equities printed on them as broker.
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that Respondent's license as a real estate salesman in Florida be revoked. DONE and ORDERED this 23rd day of May, 1986, in Tallahassee; Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Arthur R. Shell, Esquire p. O. Box 1900 Orlando, Florida 32802 Ralph Armstead; Esquire P. O. Box 2629 Orlando; Florida 32802
Findings Of Fact Exhibit 2 evidences some 13 arrests of Petitioner, most of which are for the offense of larceny. Although this document is hearsay, Petitioner readily acknowledged that in 1980 and 1984 he was a drug addict and supported his habit by stealing. Exhibit 3 consists of 6 convictions of grand theft and burglary on August 1, 1980, another count in 1984 and one count of attempted grand theft on October 26, 1990. The period between 1980 and 1984 was a period in Petitioner's life immediately following his discharge from the armed forces. On October 26, 1990, Petitioner was adjudicated guilty of grand theft following a plea of nolo contendere to the charge of obtaining or using or attempting to obtain or use the property of another with intent to deprive the owner of the use thereof of personal property of the value of $300 or more. Petitioner testified that in 1990 his 19 year old stepson, who was preparing to enter college, while driving Petitioner's pickup truck, stopped near a parked vehicle and attempted to steal personal property therefrom, but fled when someone observed him. The license number of the pickup was traced to Petitioner. The stepson confessed his actions to Petitioner and when the police arrived, Petitioner, who already had a criminal record that could hardly be blemished further, told the police that he was the driver of the pickup. He was charged with the offense of attempted grand larceny, pled nolo contendere, was adjudicated guilty and was sentenced to 5 years in prison of which he served some 7 months. The stepson graduated from college and is now married, gainfully employed, and raising a family. When submitting his application for licensure, Petitioner further testified that he researched the definition of moral turpitude, spoke to his lawyer and other people regarding his conviction of grand larceny, and was told that the offense did not necessarily constitute an offense involving moral turpitude. Accordingly, Petitioner assumed that he had not been convicted of an offense involving moral turpitude and marked item 5 on his application "No" which asked if he had ever been found guilty of a crime involving fraud, dishonest dealing, or any other act of moral turpitude. Petitioner contends that he told Respondent's employees, with whom he discussed his application for licensure, of his criminal record and was told this was not disqualifying. Accordingly, he spent the money to obtain the required mortgage broker education certificate and to take and pass the examination for mortgage broker license, only to be told after these efforts that he could not qualify for licensure.
Recommendation It is RECOMMENDED that a Final Order be issued denying the application of Stephen J. Matala for a licensure as a mortgage broker. DONE AND ENTERED this 27th day of January 1994 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January 1994. COPIES FURNISHED: Stephen J. Matala 32414 Marchmont Circle Dade City, Florida 33525 Lisa L. Elwell, Esquire Office of the Comptroller Department of Banking and Finance 1313 Tampa Street, Suite 615 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue At issue is whether Respondent committed the violations set forth in the Administrative Complaint dated October 17, 2002, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for the regulation and discipline of real estate licensees in Florida pursuant to Section 20.125, Florida Statutes (2000). At all times material to this case, Respondent is a licensed real estate broker and holds license number 0349967. In the summer of 2001, Jose Diaz (Diaz) met Saldana at a seminar. The seminar was aimed at persons seeking to participate in federally financed programs designed to assist them in financing home purchases. At the seminar, Diaz was referred to Saldana and described as a person who could assist Diaz in finding a home which could be financed with government funds. Diaz sought Saldana's help in good faith, but Saldana abused Diaz' trust and took advantage of his lack of sophistication in the field of real estate. Specifically, Saldana told Diaz that in order to be eligible for a government financed loan, it would be necessary to pay off certain of Diaz' debts. Saldana instructed Diaz to provide him with blank money orders and represented to Diaz that the money orders would be used by Saldana to pay off the debts so as to facilitate Diaz' receiving a government loan. Saldana failed to deposit the funds with his broker or in an escrow account, and failed to use them for the purposes for which they were intended, that is, to pay off Diaz' debts in order to satisfy government requirements for loaning Diaz funds toward a home purchase. Instead, Saldana converted the funds to his own use. Diaz sued Saldana for civil theft in Palm Beach County Court. On June 19, 2002, a final judgment was entered in Diaz' favor for the full amount of the funds converted, plus interest. As of the date of the final hearing, Saldana had failed to satisfy Diaz' judgment, and had no plans to do so. In early 2001, Rafael Alcocer (Alcocer) met Saldana in a social club and asked him to assist him and his wife in purchasing a home. Saldana agreed, but did little on Alcocer's behalf. Eventually, Alcocer found a home he liked and asked Saldana to present an offer to the homeowner, Diane Dorish (Dorish). Dorish accepted the offer, which included a $500 deposit. However, Saldana falsely told Alcocer that Dorish required a $2,500 deposit, and obtained funds in that amount which Alcocer thought would be used for a deposit required by the homeowner. In fact, Saldana converted those funds to his personal use, although Alcocer was eventually able to recoup $1,500. In addition, Saldana forged Alcocer's signature on a contract which provided for additional terms which had not been authorized by either Alcocer or Dorish. The Division also charged Saldana with collecting a $320 mortgage application fee, plus a $1,000 earnest money deposit from a third client. The Administrative Complaint alleges that Saldana failed to deposit these funds into a trust or escrow account, but instead converted the funds to his own use. However, no evidence was presented in connection with this transaction, and it has not been considered in the disposition of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order revoking Respondent’s real estate license. DONE AND ENTERED this 24th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 24th day of April, 2003. COPIES FURNISHED: Lorenzo Level, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1900 Enrique Saldana 7560 Gilmour Court Lake Worth, Florida 33467 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 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 16th day of April.
The Issue The issue in this case is whether Respondents are guilty of violating Section 475.25(1)(b) and, if so, what penalty should be imposed.
Findings Of Fact Respondent Galdo has been a licensed real estate broker for eight years and holds license number 0414542. At all material times, he served as president of Respondent Real Estate Support and Development Corporation, which is registered as a real estate broker and holds license number 0243131. All references below to "Respondent" are to Respondent Galdo only. By Contract for Sale and Purchase executed by both parties on December 5, 1989, Respondent, as trustee, agreed to sell to Ruben P. Chalarca a parcel located at 12 Sandalwood Court, Oviedo, Florida. The contract calls for a closing on or before December 28, 1989. The purchase price disclosed on the contract is "approx. 46,300.00 1000.00 cash to Mortgagee." According to the contract, payment was to include the buyer taking subject to and assuming a mortgage held by "Central Fed Mortgage Co." in the approximate principal amount of $45,300. The contract contains no information as to a brokerage commission. Blanks on the form contract concerning a commission are filled in "N/A." The only involvement of Respondent Real Estate Support and Development Corporation appears to be that Respondent provided Mr. Chalarca a business card bearing the name of Respondent, the name of Respondent Real Estate Support and Development Corporation, the company's address, and telephone numbers for Respondent and the company. However, the evidence does not establish that Respondent gave the business card to Mr. Chalarca for any purpose other than giving him the information necessary to contact Respondent. There is no evidence that Respondent held himself out as representing Real Estate Support and Development Corporation in his dealings with Mr. Chalarca. The $1000 earnest money deposit that Mr. Chalarca "paid" to Respondent was by a check that never cleared. Mr. Chalarca gave another check payable to Respondent individually. The second check was dated December 5, 1989, but was only in the amount of $400. There is another check dated December 5 payable to cash and in the amount of $150, but the record does not establish that the Chalarcas gave this sum to Respondent. Except for the $1000 earnest money check, all of the Chalarcas' checks cleared. The closing took place and Respondent Galdo, as trustee, conveyed the property by deed to Mr. Chalarca and possibly his wife. Mr. and Mrs. Chalarca are from Columbia, South America. Neither has had any significant real estate experience prior to the subject transaction with Respondent. Although Mr. Chalarca speaks and understands English reasonably well, his wife does not. Mr. Chalarca did not complete high school. Prior to or at the closing, Respondent told Mr. Chalarca to make the mortgage payments to Respondent, who would make arrangements with the mortgagee, evidently to show that the Chalarcas would be making the mortgage payments. It appear that the mortgage payments may not have been current when the Chalarcas purchased the property. Respondent admitted to Petitioner's investigator that he sent the November and December, 1989, payments to the mortgagee in January, 1990, together with a request that the mortgage be transferred to the Chalarcas. He also admitted that the bank returned the package with a demand for the January, 1990, payment. Upon receipt of the demand from the bank, Respondent told the Chalarcas that they must make the January, 1990, payment at that time. However, the record establishes that the Chalarcas gave Respondent only two checks after the closing. The first is dated April 17, 1990, and in the amount of $1600. The second check is dated May 21, 1990, and in the amount of $1000. The record does not clearly establish whether Respondent ultimately made the November and December, 1990, payments. The record clearly establishes that no one made the January, February, and March payments, although there is no evidence that the Chalarcas ever tendered these payments to Respondent. For reasons not apparent from the record, Mr. Chalarca decided to make the April, 1990, payment directly to the mortgagee. This check is dated April 7, 1990, in the amount of $1220, and payable to Transohio Savings. However, the mortgagee returned the check by letter dated May 29, 1990, because the loan was already in foreclosure. The letter gave Mr. Chalarca an address to contact "in order to stop the action." Most important, the record establishes that Respondent retained the $2600 paid to him by the April and May, 1990, checks, and the record does not establish any justification for the retention of this money by Respondent. There is no indication in the record that Respondent applied this money on behalf of the Chalarcas. To the contrary, there is some indication that no payments were made on the mortgage after late 1989. By Summary Final Judgment of Foreclosure entered November 6, 1990, Transohio Savings Bank, F.S.B. obtained a foreclosure judgment on the subject mortgage against Mr. Chalarca and his wife for the total sum of $52,613.74. The foreclosure judgment shows interest on the principal balance of $5649.24 through September 23, 1990, with an additional $15.78 per day interest from September 24, 1990, through the date of entry of the judgment. The assumed interest rate was not the statutory interest rate, which is expressly imposed upon the total due, starting from the date of the judgment. If the daily interest under the foreclosed mortgage were $15.78 daily, then unpaid interest of $5649.24 represents 358 days' interest, which would suggest that no interest payments were made after September or October, 1989. The foreclosure judgment ordered the clerk to sell the property on December 20, 1990. The Chalarcas remained in the 12 Sandalwood Court parcel until about the time of the sale.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Real Estate Support and Development Corporation, finding Roger Galdo guilty of violating Section 475.25(1)(b), suspending his license for six months, placing him on probation for 18 months following the end of the suspension, and imposing upon him an administrative fine of $1000. ENTERED this 9th day of September, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-4449 Treatment of Proposed Findings of Petitioner 1-3: adopted. 4: rejected as irrelevant. 5: adopted. 6: adopted except that the $1000 check was dishonored. 7: adopted. 8: rejected as unsupported by the appropriate weight of the evidence. All of the checks that the Chalarcas gave Respondent have been identified in the recommended order., which also identifies when these checks were delivered to Respondent. The evidence does not establish by the requisite standard that the Chalarcas gave Respondent the mortgage payments each month when they were due, or even that they gave Respondent funds sufficient to make the mortgage payments that fell due following the closing. 9: adopted except as the characterization of Mr. Chalarca as "suspicious." The characterization is rejected as unsupported by the appropriate standard of evidence. 10: adopted. 11: rejected as unsupported by the appropriate weight of the evidence. The record does not establish Mr. Chalarca's motivation for giving Respondent the two checks totalling $2600. 12: adopted, although a substantial amount of time elapsed between the service of the foreclosure summons and the departure of the Chalarcas from the mortgaged property. 13: adopted. 14: rejected as unsupported by the appropriate weight of the evidence. 15-19: rejected as recitation of evidence. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Attorney Janine B. Myrick Division of Real Estate Legal Section P.O. Box 1900 Orlando, FL 32802-1900 Roger Galdo 208 Madeira Avenue Orlando, FL 32825 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
