The Issue Whether the Respondent's real estate broker license should be disciplined based upon the alleged violations of Sections 475.25(1)(b),(c),(d)1. and (e), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Bernard L. Covington is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0178235 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker at 4383 U.S. Hwy. 1, Edgewater, Florida 34141. On September 6, 1990, Terra Mar Village's prospectus to sell proprietary leases in mobile home lots was approved by the Florida Department of Business Regulation. Included in said prospectus is a form Contract for Purchase and Installation of a Cooperative Unit and Manufactured Home at Terra Mar Village for use when lot was to be sold in said Village. On July 25, 1992, Respondent, through the actions of his agent, Alvin D. Booten, solicited and obtained a purchase agreement between sellers, Terra Mar Village Association, and buyers, Jack W. Miller and Jacqueline Miller for Lot 132 in Terra Mar Village. Respondent's agent represent that the buyers were purchasing a mobile home lot in fee simple at the Village. In actuality, they were only purchasing a proprietary lease in the lot. Al Booten, an unlicensed agent, was employed by Terra Mar Village, LTD. as a sales representative. In the course of his employment, he promised the Millers a deed to the property. They relied on his representations, and they put down their deposit on the lot. Booten never advised the Millers they were buying into a cooperative association. Respondent failed to use the approved Contract for Purchase agreement form contained in the prospectus approved in September 1990 by the Department in its dealings with the Millers. The Respondent failed to disclose prior to the closing that the buyers were purchasing only a proprietary lease in the lot. On January 14, 1993, the transaction closed with Respondent acting on behalf of Terra Mar Village, LTD. and Terra Mar Village Association, Inc. After closing, the buyers received the Prospectus and title policy. Upon examining their title insurance policy, they learned that they had purchased a proprietary lease, not a fee simple interest in the lot as has been represented to them by Booten. The mobile home park has gone into foreclosure and the ownership interest of the Millers, among others, in their lots have been put in jeopardy. The Millers had relied on the representations of the Respondent as a licensed broker in their decision to purchase a lot in Terra Mar Village. Respondent committed a breach of trust by failing to disclose that the lot being sold was by proprietary lease. On April 1 and May 10, 1993, buyer Reginald B. Randolph gave Respondent's unlicensed agent, Al Booten, two checks totalling $45,000 for the purchase of a mobile home and lot at Terra Mar Village. On May 10, 1993, Respondent closed the transaction without the knowledge or consent of the buyer. However, Respondent failed to have the title to the property recorded. Randolph was misled by the Respondent's agent Booten, who told Randolph and his wife that they could buy a lot on a canal in the Village. When the Randolphs discovered they had been deceived and demanded their money back, the Respondent refused to refund it. They also discovered the money was not being held in escrow. The Randolphs believed Al Booten was a licensed real estate salesperson because he claimed he was selling the lot. There were many problems associated with the park. The source of potable water at the park was not approved and a moratorium was placed on it by Volusia County. Later, Terra Mar Village, LTD. filed for bankruptcy, but it was denied. The Respondent seeks to blame the "recession" and the water problems for the difficulties he encountered with the Millers and Randolphs. However, Respondent collected their downpayments and misappropriated the funds after allowing them to be misled by his agent.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1 and (e), Florida Statutes, as charged in the Administrative Complaint. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of two (2) years and that he pay an administrative fine of $1,000. DONE and ENTERED this 10th day of August, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 10th day of August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-14 Respondent's proposals. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bernard L. Covington, pro se 1034 Old South Lane Apopka, Florida 32702 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Florida Department of Business and Professional Regulation Division of Real Estate Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to these proceedings, the Respondent was the holder of Florida real estate license number 0201688. The last license issued was as a nonactive broker with a home address of 2281 Euclid Avenues Fort Myers, Florida. On December 10, 1986, the Respondent entered a plea of guilty to the offense of obtaining a controlled substance by fraud in Case No. 861034CF in the Circuit Court of Lee County, Florida. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. The Respondent did not notify the Petitioner in writing of his plea within the thirty-day period because he believed he had entered a plea to a misdemeanor, which was exempt from the reporting requirement of 475.25(1)(p), Florida Statutes. A letter from his attorney before the plea was entered reflected an intent to enter a plea to a misdemeanor, subject to acceptance by the court. On July 15, 1987, in Case No. 86-1790CF in the Circuit Court of Lee County, Florida, the Respondent entered nolo contendere pleas to uttering a forged instrument in Counts I, III, V, VII, IX, XI, and XIII and grand theft in Counts II, VI, VIII, X, XII, and XIV. These charges involved personal business affairs and did not involve misconduct by the Respondent as a real estate salesman or broker. The Respondent notified the Florida Real Estate Commission of his adjudication of guilt for the grand thefts and the utterings of forged instruments in Case No. 86-1790CF by letter dated August 7, 1987. There are no specific findings of mitigating or aggravating circumstances as none were presented during the hearing of this case.
The Issue Whether respondent placed an unpermitted sign alongside U.S. 29 0.7 miles south of U.S. 90 in Escambia County in violation of Section 479.07(1), Florida Statutes?
Findings Of Fact At the time and place appointed for the hearing, neither party appeared or adduced any evidence. The hearing officer was later apprised that the parties had reached at least an oral agreement settling the dispute.
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At the hearing, counsel for the petitioner attempted to introduce into evidence as an exhibit a computer printout showing respondent's license status. This document could not be identified by any witness called to testify in the proceeding and was not otherwise properly authenticated. The following colloquy between counsel for the petitioner, the Hearing Officer and the respondent occurred prior to the time respondent was placed under oath during the hearing: MR. JORDAN: Finally, Your Honor, we'd like to introduce as our next exhibit a computer printout showing Mrs. Steed's license status which reflects that her broker's license was effective 4/1/81. That would be Exhibit 23. MRS. STEED: Where are they located at? MR. JORDAN: That came out of Tallahassee, I believe. That's just a printout on your license. MRS. STEED: Do they show I'm inactive? MR. JORDAN: Let me see. This simply shows that as of 8/28/81 and you were licensed and your broker's license became effective 4/1/81 and your home address is 10164 Southwest 64th Street. MRS. STEED: None of that is true. THE HEARING OFFICER: She obviously cannot identify that document if it's something that came out of Tallahassee and she's never seen it before. MRS. STEED: It's inactive. THE HEARING OFFICER: Okay. Since Mrs. Steed is not represented by an attorney, I feel obliged to tell her it's the Board's responsibility to prove that she either was licensed at the time of the allegations in the complaint or something -- MRS. STEED: I am not a licensed real estate broker at the present time and I haven't been, but I just don't know the date that it changed. MR. JORDAN: The material time I think is back in `80 and `81 when this was going on. I can call your associate. MRS. STEED: I possibly was licensed then. I'm not saying I wasn't. I don't really know. I would say I was. THE HEARING OFFICER: As I said, it's the Board's responsibility to prove that up. MR. JORDAN: I think she's saying you still have it. It's just that it's inactive. MRS. STEED: I'm inactive. MR. JORDAN: You haven't given up your license; correct? MRS. STEED: No THE HEARING OFFICER: You're not offering that? MR. JORDAN: I'm not offering that. I think she agrees that she was licensed back in '80 and '81 when these transactions were going on. (TR. pp 59 and 60) No other evidence was offered during the hearing as to respondent's status as a licensed real estate broker in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent filed on September 2, 1981, as amended on December 1, 1981, be DISMISSED. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 28 day of July, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Mr. C. B. Stafford Conrad, Scherer & James Executive Director Post Office Box 14723 Florida Real Estate Commission Ft. Lauderdale, Florida 33302 Post Office Box 1900 Orlando, Florida 32801 Carolyn Steed 5951 S. W. 67th Ave. Fred Wilsen, Esquire Davie, Florida 33314 Florida Real Estate Commission 400 W. Robinson Orlando, Florida 32801
The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 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 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Freedom of Choice Realty, Inc., is a registered corporate real estate broker holding license number C00213882. Respondents Richard S. Testut, A. C. Kibler and Beatrix Meyer-Burghagen are registered real estate brokers holding licenses numbered 0180949, 0047414 and 0145168, respectively, and these individuals are officers of Respondent Freedom of Choice Realty, Inc. In addition, Beatrix Meyer-Burghagen holds a license to operate real estate school named Florida Real Estate Clinics, Inc., which is also a Respondent herein. In support of the allegations in its Administrative Complaint the Petitioner presented testimony and evidence from five witnesses. The first, Stephen E. Thomas, Jr., is an officer of Respondent, Freedom of Choice Realty, Inc., and he is also an officer of Florida Real Estate Council, Inc. Neither Mr. Thomas nor Florida Real Estate Council, Inc., hold any real estate licenses, and they are not parties to this proceeding. Florida Real Estate Council, Inc., was formed to offer licensed salespeople an opportunity to belong to their own association. During the month of April, 1980, this organization sponsored a series of public meetings to which inactive licensees were invited by means of a flier which was mailed to approximately 21,000 of them in South Florida. The purpose of these meetings was to inform inactive real estate salespeople concerning the status of their licenses after June of 1980. Generally, these fliers conveyed the impression that inactive licenses had been placed in jeopardy by a change in the real estate law, and the information conveyed at the public meetings reiterated the existence of an apparent threat to these licenses. Two other witness presented by the petitioner established the content of one of the public meetings held by Florida Real Estate Council, Inc., in April of 1980. The remaining two witnesses were presented to clarify the actual changes that were made in the real estate law on July 1, 1980. There was no truth or substance to the information conveyed to over 21,000 inactive licensees concerning the status of these licenses as a result of statutory changes made in 1980. However, this information was not established to be more than an inaccurate lay interpretation of the Florida Statutes by Stephen E. Thomas, Jr., or by Florida Real Estate Council, Inc. In summary, the Petitioner's evidence fails to prove a conspiracy among the Respondents as alleged in the Administrative Complaint. Except for the fact that Stephen E. Thomas, Jr., is an officer of both Florida Real Estate Council, Inc., and Respondent Freedom of Choice Realty, Inc., insufficient evidence was presented to establish a connection between these corporations. Any false and misleading statements or information disseminated at the public meetings and by flier was the action of Mr. Thomas, individually, and/or Florida Real Estate Council, Inc., neither of whom are subject to the jurisdiction of the Board of Real Estate, and neither of whom are parties to this proceeding. The evidence does not support a finding that any of the Respondents conspired together for the purpose of distributing false information to real estate license holders, as alleged. Nor was there substantial, competent evidence that the Respondents, or any of them received financial benefit either from the flier or the public meetings. Finally, based upon the testimony of Petitioner's witness, Stephen E. Thomas, Jr., and evidence from the only Respondent who testified, Richard S. Testut, Freedom of Choice Realty, Inc., attempted to operate a real estate brokerage business beginning on July 1, 1980. The initiation on July 2, 1980, of the investigation which resulted in the filing of the administrative Complaint under consideration here adversely affected its employees, as well as potential employees, to such an extent that no sales or commissions could be earned. However, this company did have a staff, listings, sales meetings, literature, and advertised to recruit salespeople. Thus, the Petitioner's contention that this corporation neither actively employed any licensees, or performed any brokerage services, was not proven.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed in this case be dismissed. THIS RECOMMENDED ORDER entered on this 18 day of February, 1981. 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 18 day of February, 1981. COPIES FURNISHED: Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Alan H. Konigsburg, Esquire 1700 East Las Olas Boulevard Suite 202 Fort Lauderdale, Florida 33301 Mr. Richard S. Testut 4180 Coral Springs Drive Coral Springs, Florida 33035
Findings Of Fact The Respondent, Nelye Bunch, is a licensed real estate broker, having been issued license number 0315615. The Respondent, AA Real Estate, Inc., of Kissimmee, is a licensed corporate real estate broker, having been issued license number 0214153. In December of 1980, Grace Makuch, a licensed real estate salesperson, entered into an employment agreement with the Respondents, whereby Grace Makuch became employed as a real estate salesperson in the brokerage office of the Respondents. Pursuant to this employment, Grace Makuch and the Respondents entered into an oral agreement in which Grace Makuch would be compensated by receiving 60 percent of the selling broker's commission on every real estate sale she brought into the office. On or about March 6, 1981, Grace Makuch negotiated a contract for the sale of real property on Nova Road in Osceola County, Florida, between Earl Croft and his wife, as sellers, and Larry Henninger, as buyer, for $96,200. This transaction closed in April of 1981. The Respondents received the real estate commission due, in the amount of $4,810, and paid Grace Makuch $1,154.40. Under the employment agreement, Grace Makuch should have been paid $2,886. Demand for the balance due of $1,731.60 has been made by Grace Makuch and her attorney, but nothing further has been paid by the Respondents. In February of 1981, Grace Makuch negotiated a contract for the sale of real property on Donegan Avenue in Kissimmee, Florida, between Michael F. Sweeney, Trustee, as seller, and Dominick Tattoli and his wife, as buyers, for $115,000. This transaction closed in May of 1981. The Respondents received the real estate commission due, in the amount of $5,000 and tendered to Grace Makuch a check for $250. Under the employment agreement, Grace Makuch should have been paid $3,000; thus, she refused to accept the check for $250. Demand for the full amount of her share of the commission on this transaction in the amount of $3,000 has been made by Grace Makuch and her attorney, but nothing has been paid by the Respondents.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 0315615 held by Nelye Bunch, be revoked. It is further RECOMMENDED that license number 0214153 held by AA Real Estate, Inc., of Kissimmee, be revoked. THIS RECOMMENDED ORDER entered this 8 day of October, 1982, in Tallahassee, Florida. 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 8 day of October, 1982. COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741
Findings Of Fact John M. Stroud is a registered real estate saleman holding registration number 0172065 issued the Florida Real Estate Commission. On December 17, 1976, John M. Stroud was arrested for burglary and committed to the custody of the sheriff of Brevard County for the offense of burglary. On December 15, 1976, Stroud had his completed application notarized by R. Jack Simpson. Stroud's application was initially received by the Florida Real Estate Commission on January 5, 1977, and was returned to Stroud because he had not enclosed the fee required. It was resubmitted with the fee and received by the Florida Real Estate Commission on January 14, 1977.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the registration of John M. Stroud be revoked. DONE and ENTERED this 9th day of December, 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1977. COPIES FURNISHED: David T. Young, Esquire 1197 So. U.S. Highway 1 P.O. Box 563 Rockledge, Florida 32955 Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue Whether Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b) Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to account and deliver funds, in violation of Section 475.25(1)(d)1., Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to maintain trust funds in a real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.005(1)(k), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Leslie L. White is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0095441 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker with an address of Les White Realty, 6313 Wynglow Lane, Orlando, Florida, 32818-1311. Respondent's license is currently under suspension for failing to pay a fine and failure to complete certain education courses. On or about September 28, 1993, Respondent negotiated a contract between himself, doing business as Les White Enterprises, as seller, and Charles and Greta White, as buyers, (no apparent relationship to Respondent) to purchase Lot Number 18, Whisper Ridge subdivision in Orange County, Florida and build a house thereon for the total sum of $79,000. Respondent prepared the contract, using the standard Contract for Sale and Purchase form approved by the Florida Association of Realtors and The Florida Bar. Les White Enterprises was listed as the "Seller" and Charles White and Greta White, his wife, were listed as "Buyers". The Buyers agreed to purchase Lot 18 and to have a house constructed on the site by the Seller. The Buyers agreed to seek "new financing at prevailing interest rates" in the amount of $75,550; put down a $2,000 deposit and pay an additional $1,450 at closing. The contract called for the deposit to be held in escrow by Les White Realty/Builders. The $2,000 deposit was paid in cash by the Buyers and given to Respondent. The Respondent did not place the $2,000 deposit in an escrow account contrary to the express terms of the contract. Respondent did not acknowledge receipt of the deposit in his capacity as a broker. At the time the contract was signed, the Buyers knew that the Respondent did not own or have title to Lot 18, and that the purchase price of the lot exceed the amount of the deposit. The Buyers consented to the Respondent using the funds to acquire the property. Respondent was unable to purchase Lot 18, and sought the Buyers' permission to purchase Lot 2 instead and construct a house on it in accordance with the parties' prior agreement. The Buyers reluctantly agreed. On February 18, 1994, Buyers gave Respondent a cashier's check for $1,200 for the purpose of clearing the land and beginning construction of a home for them on Lot 2. The funds were not placed in escrow. The Respondent utilized the funds received from the Buyers and acquired title to Lot 2 in his name alone on or about February 25, 1994. The Respondent cleared Lot 2 in preparation for construction, obtained building plans and applied for building permits in connection with building a house on said lot. Shortly thereafter, Respondent notified the Buyers that the private investors, who approved their loan application, had discontinued financing of the Respondent's construction loan and he was unable to construct the house. The transaction failed to close and the Buyers demanded that Respondent return the earnest money deposit. Respondent was unable to return to return the $3,200 earnest money deposit to the Buyers. Respondent filed for personal reorganization under Chapter 13 of the United States Bankruptcy Code. Throughout the course of this transaction, Buyers dealt with Respondent in his capacity as a broker/builder. In 1994 and 1995, the Florida Real Estate Commission found Respondent guilty of violating the provisions of Section 475.25(1)(b) and (1)(d)1., Florida Statutes on three occasions. Following the third offense, Respondent's license was suspended for six months and it is presently under suspension for failure to pay his administrative fines and complete other requirements of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1., and (k), Florida Statutes; and guilty of having been found guilty for a second time (or more) of misconduct that warrants suspension, in violation of subsection 475.25.(1)(o), Florida Statutes; it is further RECOMMENDED that Respondent's licensed be revoked. DONE and ENTERED this 4th day of October, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Gillis and Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
