The Issue Whether Weston Professional Title Group, Inc. (Respondent) committed the violations alleged in Counts I, II, III, V, VI, and VII of the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times, Petitioner has been the entity of the State of Florida charged with the responsibility to regulate title insurance agencies. At all times relevant to this proceeding Respondent was licensed by Petitioner as a title insurance agent in the State of Florida. As of the formal hearing, Respondent had ceased its operations due to the lack of business. Petitioner's investigation of Respondent was initiated by a complaint from a man named Robert Anderson. Mr. Anderson represented to Petitioner that he discovered that his name and address had been used as the buyer of the two residences discussed above. Respondent was the title and settlement agent for both transactions. The Collonade Drive transaction settled on November 14, 2006, with disbursement of the funds on November 16, 2006. The Vignon Place transaction settled and the funds were disbursed on December 15, 2006. Mr. Anderson reported to Petitioner his belief that his identity had been stolen by a person named Pamela Higgins. Mr. Anderson reported to Petitioner that he had not participated in either transaction, and asserted that he did not sign any of the documents that purport to contain his signature as the buyer. Respondent was required to comply with the provisions of RESPA in completing the HUD-1 for the Collonade Drive closing and the Vignon Place closing. RESPA required that disbursements at closing be consistent with the HUD-1 as approved by the parties to the transaction and by the lender. COLLONADE DRIVE CLOSING On September 15, 2006, Robert Anderson (or someone impersonating Mr. Anderson) signed a "Contract for Sale and Purchase" (Collonade contract), agreeing to buy the Collonade Drive property from Mark Mariani and Kathy Mariani, for the purchase price of $1,375,000.00. The Collonade contract reflected that a deposit had been made to "FLORIDA TITLE & ESC." in the amount of $5,000 with an additional deposit of $5,000 to be made within ten days. Two loans with separate mortgages constituted the financing for the purchase of the Collonade Drive property. The first mortgage was $962,500.00. The second mortgage, as reflected on the HUD-1 Settlement Statement with the disbursement date of November 14, 2006, was $263,430.08.3/ First Magnus Financial Corporation, an Arizona corporation, was the lender for both loans. Agents of America Mortgage Corp. served as the mortgage broker for the transaction. Juan Carlos Rodriguez, an employee of Agents of America Mortgages, signed Mr. Anderson's loan application as the "interviewer." The following was a special clause of the Collonade contract: "BUYER AGREES TO PAY FOR TITLE INSUANCE [sic] FEE ONLY (LINE 1108 OF SELLERS' SETTLEMENT STATEMENT), ONLY [SIC] IF SELLERS AGREE TO USE BUYER'S TITLE COMPANY OF CHOICE. BUYER IS A LICENSED FLORIDA REAL ESTATE AGENT." Petitioner established that Robert Anderson was not a licensed Florida real estate agent. The Collonade contract represented that there were no real estate brokers representing either party. On or about November 1, 2006, Respondent received a "Request for Title Commitment" from Claudit Casanova, a mortgage broker with Agents of America Mortgage Corp., for the Collonade Drive transaction. This was a revised request. The first request had been sent to Respondent on or about October 3, 2006. A copy of the Collonade contract had been forwarded to Respondent with the first request. In connection with the Collonade Drive transaction, Respondent prepared two HUD-1s,4/ each of which was approved by the parties and the lender.5/ The first HUD-1 had an anticipated closing date of November 14, 2006. That HUD-1 was revised in response to the lender's instruction to move the disbursement date from November 14, 2006, to November 16, 2006. The revision of the HUD-1 slightly reduced the amount of cash the buyer needed to close as a result of interest beginning to run on the loans as of November 16 instead of November 14. This was a mail-away closing, in that a packet of the documents the buyer was to sign was sent to someone named Laurie Martin at a title agency in Glendale, Arizona. Ms. Marrero testified she mailed the packet pursuant to instructions without specifying who gave her those instructions. The packet of documents was returned to Respondent, with signatures purporting to be Mr. Anderson's. Laurie Martin appears to have served as the notary public when the documents were signed. The transaction closed pursuant to the revised HUD-1 with the disbursement date of November 16, 2006, which, as approved by the parties and the lender, reflected that the sellers were to receive $477,884.93 upon closing. Upon closing, Respondent drafted a check in the amount of $477,884.93 made payable to the sellers. The sellers voided the check and based on instructions from the sellers, Ms. Marrero redistributed the sellers' proceeds by wire transfer as follows: $116,112.85 to sellers; $170,250.00 to Pamela Higgins; and $191,508.08 to Unlimited Advertising USA. Fourteen dollars were spent on wire transfer charges. The actual disbursement of the seller's proceeds was inconsistent with the HUD-1 and unknown to the buyer and the lender. Respondent violated the provisions of RESPA by disbursing the proceeds of the sale in a manner that was inconsistent with the HUD-1. $195,000 DEPOSIT The Collonade contract reflected that a $5,000 deposit had been made to "Fla. Title & Esc." required for the buyer to pay an additional deposit of $5,000 within ten days. There was no evidence establishing any relationship between Respondent and "Fla. Title & Esc." Both HUD-1s for the Collonade Drive transaction reflected that the buyer had provided to the sellers a deposit in the amount of $195,000. These HUD-1s, reflecting that the sellers were holding a deposit in the amount of $195,000, were approved by the parties and the lender. Ms. Marrero testified that she was instructed to include the $195,000 deposit on the HUD-1s without specifying who gave her those instructions. Ms. Marrero did not attempt to verify that the $195,000 deposit was actually being held by the sellers. FRAUD Petitioner alleged that the Collonade Drive transaction was fraudulent. Mr. Wenger's testimony, based in part on reports of mortgage fraud prepared by the Federal Bureau of Investigation, supported that allegation. Other evidence supporting that allegation included the following facts The first mortgage quickly went into foreclosure; A mailing address given for Robert Anderson did not (as of April 19, 2011) exist. The address of Unlimited Advertising USA was also the address of Claudia Rodriguez, a former Florida title agent whose license had been suspended by Petitioner for failing to disburse in accordance with HUD statements and disbursing on uncollected funds; The address of Unlimited Advertising USA was also the address of Juan Carlos Rodriguez (the person who supposedly took the credit application from Robert Anderson); The address of Unlimited Advertising USA was also the address of Agents of America Mortgage Corporation (the mortgage broker for the Collonade closing. Juan Carlos Rodriguez supposedly notarized the document authorizing disbursement of part of the sellers' proceeds to Pamela Higgins. Mr. Anderson's purported signatures on different documents are inconsistent. The address for Mr. Anderson as it appears on the HUD- 1 Settlement Statements is 14233 W. Jenan Drive, Surprise, Arizona. Prior to the closing Ms. Marrero sent by Federal Express a copy of the unexecuted closing documents to "Pam Higgins c/o Robert S. Anderson" 12211 N. 85th Street, Scottsdale, Arizona. Following the closing, Ms. Marrero sent a copy of the closing documents by Federal Express to Robert S. Anderson, at the address 12211 N. 85th Street, Scottsdale, Arizona. Ms. Marrero testified that she acted on instructions in sending the two packages, without identifying who gave her those instructions. There was no evidence that anyone employed by Respondent knew anyone connected to this transaction prior to being asked to provide a title commitment. There was insufficient evidence to establish that Respondent had anything to do with the buy-sell agreement between the buyer and the sellers or the efforts by Mr. Anderson (or the person or persons impersonating Mr. Anderson) to obtain financing for the purchase. While there was significant evidence that the Colonnade Closing was a fraudulent transaction, there was insufficient evidence to establish that Respondent was complicit in that fraud. VIGNON COURT CLOSING On a date prior to November 6, 2006, Maribel and Timothy Graves signed a "Contract for Sale and Purchase" offering to sell their Vignon Court residence to Robert Anderson for the purchase price of $1,975,000.00. Mr. and Mrs. Graves were represented by counsel during this transaction. The copy of the contract admitted into evidence had not been signed by Mr. Anderson and did not bear a legible date. The contract provided an acceptance date of November 6, 2006. The fully executed contract was not admitted into evidence. On October 4, 2006, Claudit Casanova of Agents of America Mortgage requested Respondent to provide a title commitment for the Vignon Court transaction. In that request, the sales price was stated as being $1,975,000; the loan amount was $1,481,250 and the mortgagee was American Brokers Conduit. Preferred Properties, Int., Inc., was listed as being the real estate broker for the transaction. Respondent prepared a HUD-1 for the Vignon Court transaction that reflected a closing and disbursement date of December 15, 2006. DEPOSIT The unexecuted (by the buyer) and undated copy Purchase Agreement required a deposit of $100,000 at the time of acceptance with an additional $50,000 being due within ten days thereafter. There was no evidence as to the terms of the completely executed Purchase Agreement. Line 201 of the HUD-1 reflected a deposit of $250,000 paid on behalf of the buyer. Respondent did not verify that deposit had been made. The HUD-1 specified that the deposit was being held by the sellers. The buyer, sellers, and lender approved the HUD-1, which reflected the existence of a deposit of $250,000, prior to closing. GASPARE VALENTINO On December 6, 2006, Mr. and Mrs. Graves entered into a "Joint Venture and Property Resale Agreement" (Resale Agreement) pertaining to the sale of the Vignon Court residence with Gaspare Valentino. On February 5, 2002, Gaspare Rino Valentino was issued a license by the Department of Business and Professional Regulation of the type "Real Estate Broker or Sales" and of the rank "Sales Associate." That license was valid at the times relevant to this proceeding. Paragraph 2 of the Resale Agreement provides as follows: (2) SALE EFFORTS: CONTRACT PROCEEDS. Valentino agrees to use reasonable efforts to obtain a third party purchaser (a "Purchaser") for the Property. Valentino is not required to advertise the Property or list the Property for sale, but shall have such right to do so. Valentino does not guaranty [sic] the procurement of a Purchaser. The parties agree that the intention is for Valentino to secure a Purchaser who will pay a purchase price sufficient in order to (i) satisfy the existing debt upon the Property, (ii) pay ordinary and reasonable closing costs of the transaction, (iii) generate a net proceeds [illegible] to Owner not less than ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000); and (iv) generate such further sums beyond the foregoing in order to pay Valentino a fee for services rendered as set forth in this Agreement. In accordance with such understanding, Owner agrees to enter into and fully execute a Contract for Purchase and Sale with a Purchaser procured by Valentino which is consistent with the terms set forth in this Agreement, including without limitation, a designated sales price which enables Owner to receive at closing a net proceeds sum equal to ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000) (the "Owner's Sale Proceeds") after payment of the Property Sale Expenses, hereinafter defined as set forth in Paragraph 3. Owner agrees that any net sales proceeds in excess of the Owner's Sale Proceeds shall be payable to Valentino (the "Excess Proceeds Fee), as Valentino's fee for the efforts of Valentino as set forth herein. Paragraph 3 (i) of the Resale Agreement reiterates that after the payment of the "Property Sale Expenses" as follows: Owner shall receive the Owner Sale Proceeds consisting of exactly ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000) from the net sales proceeds . . . Paragraph 3 (ii) of the Resale Agreement reiterates that after the payment of the "Property Sale Expenses" and the "Owner Sale Proceeds": Valentino shall receive the Excess Proceeds Fees, constituting all remaining net sales proceeds in excess of the Owner Sale Proceeds, as a fee for services rendered by Valentino pursuant to this Agreement. Paragraph 7 of the Resale Agreement is as follows: 7. Licensed Agent: Valentino represents and discloses that Valentino is a licensed real estate agent in the State of Florida. Notwithstanding such, Valentino is individually entering into this Agreement using his own resources to assist Owner in the improvement and sale of the Property, and as such is a principal in this transaction earning the Excess Proceeds Fee. The parties acknowledge that Valentino is an investor in this transaction and as such at closing is entitled to and shall receive the Excess Proceeds Fee as set forth in Section [Paragraph] 3(ii) of this Agreement. Under RESPA, Section 700 of a HUD-1 is appropriately used for reporting the payments for commissions to real estate salesmen and/or brokers as part of the "Settlement Charges." Such payments can also be reported under Section 1300 ("Additional Settlement Charges"), if the payments are appropriately labeled. Respondent reflected the payment of $527,656.92 as "Payoff" to Gaspare Valentino at line 1307 of Section 1300." Prior to closing the buyer, sellers, and lender had approved the HUD-1 for the Vignon Court transaction. The lender was aware of the Resale Agreement. Mr. Marrero is an attorney licensed to practice law in Florida. Mr. Marrero construed the payments to Mr. Valentino to be other than a real estate commission. Although it is clear that Petitioner considers that payment to Mr. Valentino to be a real estate commission, the terms of the Resale Agreement entitled Mr. Marrero to treat that payment as being to an investor. Petitioner failed to establish that Respondent erroneously stated the payment to Mr. Valentino on the HUD-1. SURETY BOND As a condition of licensure, a title agency is required to provide to Petitioner a $35,000 security deposit or a $35,000 surety bond. In connection with its application for licensure on August 29, 2002, Respondent filed the required surety bond with Petitioner. The bond was issued by Fidelity and Deposit Company of Maryland with bond number 133046577. On July 14, 2004, Petitioner received from Respondent a surety bond issued by Western Surety Company in the amount of $35,000, effective as of August 29, 2004. The bond number was 69728435. On May 28, 2010, Petitioner received a letter from his surety dated May 24, 2010, which advised that bond number 69728435 would be voided or cancelled as of August 29, 2010. That letter of cancellation showed a copy being furnished to Respondent at the address "1820 North. Corporate Lakes Boulevard, Suite 105, Weston, Florida 33326." On June 11, 2010, Petitioner advised Respondent by letter sent to "1820 North Corporate Lakes Boulevard, Suite. 105, Weston, Florida 33326" that it had received the cancellation letter. The letter stated, in part, as follows: If we do not receive a replacement bond within 30 days of the dated letter, we will forward your file to the appropriate division for disciplinary action. If you do not plan to continue transacting business and wish to terminate your license, you must submit a request to us immediately. Prior to May 24, 2010, Respondent moved its offices from 1802 North Corporate Lakes Boulevard, Suite 105, Weston, Florida, to Suite 304 of the same building. Mr. Marrero testified that he had no recollection of receiving the letters cancelling the surety bond or the letter from Petitioner dated June 11, 2010. Respondent was without a surety bond between August 29, 2010, and November 18, 2010. Petitioner did not establish that Respondent's failure to maintain it surety bond during that period was willful within the meaning of section 626.8437(9). No prior disciplinary action has been brought against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating the provisions of subsections 626.8473(2) and (4) as alleged in Count I of the Amended AC; and guilty of failing to maintain a surety bond as required by section 626.8418(2) in violation of section 626.8437(1), as alleged in Count III of the Amended AC. It is further recommended that the final order find Respondent not guilty of all other violations alleged in the Amended AC. For the violations found as to Count I, it is recommended that Respondent's licensure be suspended for a period of six months. For the violations found in Count III, it is recommended that Respondent's licensure be suspended for a period of three months. It is further recommended that the periods of suspension run concurrently. DONE AND ENTERED this 8th day of February, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2012
Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
Findings Of Fact At all times material hereto, Respondent, Lawrence P. Weiner, was a registered Florida real estate salesman employed by Continental Marketing Services, Inc. Continental Marketing Services, Inc. solicited real property listings from property owners in the State of Florida by means of postal cards inquiring of those property owners whether they would like to sell their Florida real property. Interested owners were requested to fill out a card with their address and telephone number, and to forward that card to Continental Marketing Services, Inc. which would then contact the property openers by telephone, Respondent, as a real estate salesman in the employ of Continental Marketing Services, Inc., would then contact responding property owners from a list furnished him by his employer. Respondent would obtain information by telephone from property owners such as initial purchase price, size and location of the property. Both Respondent and his employer represented to property owners that, should they list their property with Continental Marketing Services, Inc., the property would be advertised in foreign countries where investors existed who were interested in purchasing Florida real estate. In order to list their property with Continental Marketing Services, Inc., property owners were required to pay an "advance fee" for these listings, usually $350, which amount they were told would be used to defray the cost of initial preparation of a directory listing those properties in Florida which were for sale. After obtaining initial background information, Respondent would submit the information to his employer, which, though unclear from the record, would analyze these facts and return to Respondent for transmission to the property owner a suggested sales price. This suggested sales price was usually several times the initial purchase price for the property. For example, one witness at the hearing testified that a lot purchased on April 27, 1967 for $2,640 was ultimately listed with Continental Marketing Services, Inc. at Respondent's suggestion, at a sales price of $7,600. Testimony at the hearing indicated that comparable lots in the same area are presently selling for $4,700. Another witness testified that two lots purchased in 1965 for $2,390, were discussed in 1977 with Respondent who suggested that they be listed at a suggested sales price of $16,600. Finally, still another witness testified that he listed property with Continental Marketing Services, Inc. as a result of his contacts with the Respondent at a purchase price of $5,000 per acre in 1976 for property that he had purchased for $500 an acre in 1964. Those property owners testifying at the hearing who listed their property for sale with Continental Marketing Services, Inc., indicated that they had no further contact with either Respondent or Continental Marketing Services, Inc. after having paid their $350 listing fee. None of these property owners received any offers to purchase their property as a result of its listing with Continental Marketing Services, Inc., and, as of the date of the final hearing in this cause, the property remained unsold. The Respondent testified that his only responsibilities with Continental Marketing Services, Inc. involved contacting those persons on the lists furnished to him, and obtaining their agreement to listing their property with Continental Marketing Services, Inc. Suggested sale prices for particular pieces of property were furnished to Respondent by other employees of Continental Marketing Service, Inc. Respondent further testified that placing of advertisements for properties listed with Continental Marketing Services, Inc. was accomplished by other employees of the company. Respondent testified that he "understood" that Continental Marketing Services, Inc. had sold properties and that some of these sales were to foreign investors, although he did not know the identity of the foreign investors, or the number of parcels sold by the company. Respondent denied that he had represented to property owners that the sale of their property would be accomplished in sixty to ninety days. This contention is borne out by the testimony of two of the property owners testifying in this proceeding, one of whom testified that Respondent indicated that her property could "probably be sold within sixty to ninety days", and another property owner testified that Respondent made no representation to him concerning the length of time necessary to effect a sale of his property. There is no evidence in the record to establish that Continental Marketing Services, Inc. failed to advertise property listed for sale as promised in the Listing Brokerage Agreement with those property owners testifying in this proceeding. There is no evidence in the record in this proceeding to establish that Continental Marketing Services, Inc., in fact, knew of no foreign investors interested in purchasing property in the United States. Further, there is no testimony in the record in this proceeding to establish that Continental Marketing Services, Inc. had never sold property for other property owners in either the United states or the State of Florida. Finally, although property belonging to three of the witnesses testifying in this proceeding was listed at several times its initial purchase price, there is no indication in the record that Respondent played any part in setting the suggested listing prices.
The Issue In this disciplinary proceeding, the issues are, first, whether Respondent, a certified real estate appraiser, committed various disciplinable offenses in connection with three residential appraisals; and second, if Respondent is guilty of any charges, whether she should be punished therefor.
Findings Of Fact The Florida Real Estate Appraisal Board ("Board") is the state agency charged with regulating real estate appraisers who are, or want to become, licensed to render appraisal services in the State of Florida. The Department of Business and Professional Regulation ("Department") is the state agency responsible for investigating and prosecuting complaints against such appraisers. At all times relevant to this proceeding, Elsa Cartaya ("Cartaya") was a Florida-certified residential real estate appraiser. Her conduct as an appraiser in connection with the matters presently at issue falls squarely within the Board's regulatory jurisdiction. Case No. 04-1680 In the Administrative Complaint that initiated DOAH Case No. 04-1680, the Department charged Cartaya with numerous statutory violations relating to her appraisal of a residence located at 930 East Ninth Place, Hialeah, Florida (the "Hialeah Property"). Specifically, the Department made the following allegations against Cartaya:1 Respondent developed and communicated an appraisal report (Report) for the property commonly known as 930 E. 9 Place, Hialeah, Florida 33010. A copy of the report is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. On the Report, Respondent represents that: she signed it on July 27, 2000, the Report is effective as of July 27, 2000. On or about October 26, 2001, Respondent provided a "Report History" to Petitioner's investigator. A copy of the report history is attached hereto and incorporated herein as Administrative Complaint Exhibit 2. On the Report History, Respondent admits that she completed the report on August 7, 2000. On Report, Respondent represents that there were no prior sales of subject property within one year of the appraisal. Respondent knew that a purchase and sale transaction on subject property closed on July 28, 2000. Respondent knew that the July 28, 2000, transaction had a contract sales price of $82,000. A copy of the closing statement is attached hereto as Administrative Complaint Exhibit 3. Respondent knowingly refused to disclose the July 28, 2000, sale on Report. On [the] Report, Respondent represented that the current owner of subject property was Hornedo Lopez. Hornedo Lopez did not become the title- owner until on or about July 28, 2000, but before August 7, 2000. On [the] Report, Respondent represents that quality of construction of subject property is "CBS/AVG." The public records reflect that subject property is of mixed construction, CBS and poured concrete. On [the] Report, Respondent represents: "The income approach was not derived due to lack of accurately verifiable data for the mostly owner occupied area." The multiple listing brochures indicate as follows: for comparable one: "Main House 3/2 one apartment 1/1 (Rents $425) and 2 efficiencies each at $325. Live rent free with great income or bring your big family." A copy of the brochure for comparable one is attached hereto and incorporated herein as Administrative Complaint Exhibit 4. for comparable three: "Great Rental . . . two 2/1 two 1/1 and one studio. Total rental income is $2,225/month if all rented." A copy of the brochure for comparable three is attached and incorporated as Administrative Complaint Exhibit 5. On or about October 23, 2001, Petitioner's investigator inspected Respondent's work file for Report. The investigation revealed that Respondent failed to maintain a true copy of Report in the work file. On [the] Report, Respondent failed to analyze the difference between comparable one's listing price, $145,000, and the sale price, $180.000. On [the] Report History, Respondent admits to having received a request for appraisal of subject property indicting a contract price of $195,000. On [the] Report History, Respondent admits that the multiple listing brochure for subject property listed the property for $119,900, as a FANNIE MAE foreclosure. On [the] Report History, Respondent also admits that she had a multiple listing brochure in the file, listing subject property for $92,000. On [the] Report History, Respondent admits that she did not report the listings in Report. On [the] Report History, Respondent admits knowledge that comparable three was "rebuilt as a 2/1 with two 1/1 & 1 studio receiving income although zoned residential." On [the] Report, Respondent failed or refused to explain or adjust for comparable three's zoning violations. On the foregoing allegations, the Department charged Cartaya under four counts, as follows: COUNT I Based upon the foregoing, Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in any business transaction in violation of Section 475.624(2), Florida Statutes.[2] COUNT II Based upon the foregoing, Respondent is guilty of having failed to use reasonable diligence in developing an appraisal report in violation of Section 475.624(15), Florida Statutes. COUNT III Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice in violation of Section 475.624(14), Florida Statutes. COUNT IV Based upon the foregoing, Respondent is guilty of having accepted an appraisal assignment if the employment itself is contingent upon the appraiser reporting a predetermined result, analysis, or opinion, or if the fee to be paid for the performance of the appraisal assignment is contingent upon the opinion, conclusion, or valuation reached upon the consequent resulting from the appraisal assignment in violation of Section 475.624(17), Florida Statutes.[3] In her Answer and Affirmative Defenses, Cartaya admitted the allegations set forth in paragraphs 5-9, 11, 13-15, 17-19, and 23-25 of the Amended Complaint. Based on Cartaya's admissions, the undersigned finds these undisputed allegations to be true. Additional findings are necessary, however, to make sense of these particular admissions and to determine whether Cartaya committed the offenses of which she stands accused. In April 2000, Southeast Financial Corporation ("Southeast") asked Cartaya to prepare an appraisal of the Hialeah Property for Southeast's use in underwriting a mortgage loan, the proceeds of which would be applied by the prospective mortgagor(s) towards the $205,000 purchase price that he/she/they had agreed to pay Hornedo Lopez ("Hornedo") for the residence in question.4 In preparing the appraisal, Cartaya discovered that the putative seller, Hornedo, was actually not the record owner of the Hialeah Property. Rather, title was held in the name of the Federal National Mortgage Association ("Fannie Mae"). The Hialeah Property was "in foreclosure." Cartaya informed her contact at Southeast, Marianella Lopez ("Marianella"), about this problem. Marianella explained that Hornedo was in the process of closing a sale with Fannie Mae and would resell the Hialeah Property to a new buyer soon after acquiring the deed thereto. Cartaya told Marianella that, to complete the appraisal, she (Cartaya) would need to be provided a copy of the closing statement documenting the transfer of title from Fannie Mae to Hornedo. No further work was done on the appraisal for several months. Then, on July 25, 2000, Marianella ordered another appraisal of the Hialeah Property, this time for Southeast's use in evaluating a mortgage loan to Jose Granados ("Granados"), who was under contract to purchase the subject residence from Hornedo for $195,000. Once again, Cartaya quickly discovered that Fannie Mae, not Hornedo, was the record owner of the Hialeah Property. Once again, Cartaya immediately informed Marianella about the situation. Marianella responded on July 26, 2000, telling Cartaya that the Fannie Mae-Hornedo transaction was scheduled to close on July 28, 2000. On July 27, 2000, Marianella faxed to Cartaya a copy of the Settlement Statement that had been prepared for the Fannie Mae sale to Hornedo. The Settlement Statement, which confirmed that the intended closing date was indeed July 28, 2000, showed that Hornedo was under contract to pay $82,000 for the Hialeah Property——the property which he would then sell to Granados for $195,000, if all the pending transactions closed as planned. Upon receipt of this Settlement Statement, Cartaya proceeded to complete the appraisal. In the resulting Appraisal Report, which was finished on August 7, 2000,5 Cartaya estimated that the market value of the Hialeah Property, as of July 27, 2000, was $195,000. The Department failed to prove by clear and convincing evidence that the house at the Hialeah Property was, in fact, constructed from CBS and poured concrete, as alleged.6 At the time Cartaya gave the Department a copy of her workfile for this appraisal assignment, the workfile did not contain a copy of the competed Appraisal Report.7 (The workfile did, however, include a working draft of the Appraisal Report.) The allegation, set forth in paragraph 21 of the Administrative Complaint, that Cartaya "failed to analyze the difference between comparable one's listing price, $145,000, and the sale price, $180,000," was not proved by clear and convincing evidence. First, there is no nonhearsay evidence in the record that "comparable one" was, in fact, listed at $145,000 and subsequently sold for $180,000. Instead, the Department offered a printout of data from the Multiple Listing Service ("MLS"), which printout was included in Cartaya's workfile. The MLS document shows a listing price of $145,550 for "comparable one" and a sales price of $180,000 for the property——but it is clearly hearsay as proof of these matters,8 and no predicate was laid for the introduction of such hearsay pursuant to a recognized exception to the hearsay rule (including Section 475.28(2)). Further, the MLS data do not supplement or explain other nonhearsay evidence.9 At best, the MLS document, which is dated July 25, 2000, establishes that Cartaya was on notice that "comparable one" might have sold for more than the asking price, but Cartaya has not been charged with overlooking MLS data. Second, in any event, in her Report History, Cartaya stated that she had analyzed the putative asking price/sales price differential with respect to "comparable one" and concluded that there was no need to make adjustments for this because available data relating to other sales persuaded her that such differentials were typical in the relevant market. Cartaya's declaration in this regard was not persuasively rebutted. Since the evidence fails persuasively to establish that Cartaya's conclusion concerning the immateriality of the putative asking price/sales price differential as a factor bearing on the value of "comparable one" was wrong; and, further, because the record lacks clear and convincing evidence that an appraiser must, in her appraisal report, not only disclose such information, even when deemed irrelevant to the appraisal, but also expound upon the grounds for rejecting the data as irrelevant, Cartaya cannot be faulted for declining to explicate her analysis of the supposed price differential in the Appraisal Report. The evidence is insufficient to prove, clearly and convincingly, that Cartaya "failed or refused to explain or adjust for "comparable three"'s zoning violations." This allegation depends upon the validity of its embedded assumption that there were, in fact, "zoning violations."10 There is, however, no convincing evidence of such violations in the instant record. Specifically, no copy of any zoning code was offered as evidence, nor was any convincing nonhearsay proof regarding the factual condition of "comparable three" offered. Cartaya cannot be found guilty of failing or refusing to explain or adjust for an underlying condition (here, alleged "zoning violations") absent convincing proof of the underlying condition's existence-in-fact. Case No. 04-1148 In the Administrative Complaint that initiated DOAH Case No. 04-1148, the Department charged Cartaya with numerous statutory violations relating to her appraisals of residences located at 1729 Northwest 18th Street, Miami, Florida ("1729 NW 18th St") and 18032 Northwest 48th Place, Miami, Florida ("18032 NW 48th Place"). These appraisals will be examined in turn. With regard to 1729 NW 18th St, the Department alleged as follows: On or about April 29, 1999, Respondent developed and communicated a Uniform Residential Appraisal Report for the property commonly known as 1729 NW 18th Street, Miami, Florida. A copy of the report is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. On or about March 18, 2001, David B. C. Yeomans, Jr., A.S.A., and Mark A. Cannon, A.S.A., performed a field review of the report. A copy of the review is attached hereto and incorporated herein as Administrative Complaint Exhibit 2. The review revealed that unlike it states in the Report, the subject property’s zoning was not "Legal," but "legal noncomforming (Grandfathered use)." The review further revealed that Respondent failed to report that if the improvements sustain extensive damage or demolishment or require renovation which exceeds 50% of the depreciated value, it is likely that a variance would be necessary to build a new dwelling. The review further revealed that Respondent failed to report that subject property has two underground gas meters. The review further revealed that unlike Respondent states in Report, subject property’s street has gutters and storm sewers along it. The review further revealed that subject property is a part of a "sub-market" within its own neighborhood due to its construction date of 1925. Respondent applied three comparables built in 1951, 1953, and 1948, respectively, all of which reflect a different market, without adjustment. Respondent applied comparables which have much larger lots than the subject, which is of a non-conforming, grandfathered use. Respondent failed to adjust for quality of construction even though subject is frame and all three comparables are of concrete block stucco construction. Respondent failed to note on the Report that comparables 1 and 2 had river frontage. Respondent failed to adjust comparables 1 and 2 for river frontage. The review revealed that at the time of the Report there were at least five sales more closely comparable to Subject than those which Respondent applied. On the foregoing allegations, the Department brought the following three counts against Cartaya: COUNT I Based upon the foregoing, Respondent is guilty of having failed to use reasonable diligence in developing an appraisal report in violation of Section 475.624(15), Florida Statutes. COUNT II Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice in violation of Section 475.624(14), Florida Statutes. COUNT III Based upon the foregoing, Respondent is guilty of culpable negligence in a business transaction in violation of Section 475.624(2), Florida Statutes. Cartaya admitted the allegations set forth in paragraph 4 of the Administrative Complaint. Those undisputed allegations, accordingly, are accepted as true. The rest of the allegations about this property were based upon a Residential Appraisal Field Review Report (the "Yeomans Report") that David B.C. Yeomans, Jr. prepared in March 2001 for his client Fannie Mae. The Yeomans Report is in evidence as Petitioner's Exhibit 2, and Mr. Yeomans testified at hearing. Mr. Yeomans disagreed with Cartaya's opinion of value regarding 1729 NW 18th St, concluding that the property's market value as of April 29, 1999, had been at the low end of the $95,000-to-$115,000 range, and not $135,000 as Cartaya had opined. The fact-findings that follow are organized according to the numbered paragraphs of the Administrative Complaint. Paragraphs 6 and 7. The form that Cartaya used for her Appraisal Report regarding 1729 NW 18th St contains the following line: Zoning compliance Legal Legal nonconforming (Grandfathered use) Illegal No zoning Cartaya checked the "legal" box. Mr. Yeomans maintains that she should have checked the box for "legal nonconforming" use because, he argues, the property's frontage and lot size are smaller than the minimums for these values as prescribed in the City of Miami's zoning code. The Department failed, however, to prove that Cartaya checked the wrong zoning compliance box. There is no convincing nonhearsay evidence regarding either the frontage or the lot size of 1729 NW 18th St.11 Thus, there are no facts against which to apply the allegedly applicable zoning code provisions. Moreover, and more important, the Department failed to introduce into evidence any provisions of Miami's zoning code. Instead, the Department elicited testimony from Mr. Yeomans regarding his understanding of the contents of the zoning code. While Mr. Yeomans' testimony about the contents of the zoning code is technically not hearsay (because the out-of-court statements, namely the purported code provisions, consisted of non-assertive declarations12 that were not offered for the "truth" of the code's provisions13), such testimony is nevertheless not clear and convincing evidence of the zoning code's terms.14 And finally, in any event, Cartaya's alleged "mistake" (which allegation was not proved) was immaterial because, as Mr. Yeomans conceded at hearing, in testimony the undersigned credits as true, the alleged "fact" (again, not proved) that 1729 NW 18th St constituted a grandfathered use would have no effect on the property's market value. Paragraphs 8 and 9. The Yeomans Report asserts that "[b]ased on a physical inspection as of March 17, 2001[,] it appears that the site has two underground gas meters and there were gutters and storm sewers along the subject's street." It is undisputed that Cartaya's Appraisal Report made no mention of underground gas meters or storm water disposal systems. While the Department alleged that Cartaya's silence regarding these matters constituted disciplinable "failures," it offered no convincing proof that Cartaya defaulted on her obligations in any way respecting these items. There was no convincing evidence that these matters were material, affected the property's value, or should have been noted pursuant to some cognizable standard of care. Paragraphs 10 and 11. The contention here is that Cartaya chose as comparables several homes that, though relatively old (average age: 48 years), were not as old as the residence at 1729 NW 18th St (74 years). Mr. Yeomans asserted that older homes should have been used as comparables, and several such homes are identified in the Yeomans Report. The undersigned is persuaded that Mr. Yeomans' opinion of value with respect to 1729 NW 18th St is probably more accurate than Cartaya's. If this were a case where the value of 1729 NW 18th St were at issue, e.g. a taking under eminent domain, then Mr. Yeomans' opinion might well be credited as against Cartaya's opinion in making the ultimate factual determination. The issue in this case is not the value of 1729 NW 18th St, however, but whether Cartaya committed disciplinable offenses in appraising the property. The fact that two appraisers have different opinions regarding the market value of a property does not mean that one of them engaged in misconduct in forming his or her opinion. Based on the evidence presented, the undersigned is not convinced that Cartaya engaged in wrongdoing in connection with her appraisal of 1729 NW 18th St, even if her analysis appears to be somewhat less sophisticated than Mr. Yeomans'. Paragraphs 12 through 16. The allegations in these paragraphs constitute variations on the theme just addressed, namely that, for one reason or another, Cartaya chose inappropriate comparables. For the same reasons given in the preceding discussion, the undersigned is not convinced, based on the evidence presented, that Cartaya engaged in wrongdoing in connection with her appraisal of 1729 NW 18th St, even if he is inclined to agree that Mr. Yeomans' opinion of value is the better founded of the two. With regard to 18032 NW 48th Place, the Department alleged as follows: On or about August 9, 1999, Respondent prepared and communicated a Uniform Residential Appraisal Report for the Property commonly known as 18032 NW 48th Place, Miami, Florida, 33055. (Report) A copy of the Report is attached hereto and incorporated herein as Administrative Complaint Exhibit 3. On the Report, Respondent incorrectly stated that the property is in a FEMA Zone X flood area. In fact, the property is in an AE Zone. In Report, Respondent states: "Above sales were approximately adjusted per market derived value influencing dissimilarities as noted." Respondent failed to state in Report, that comparables 1 and 3 have in-law quarters. In [the] Report, Respondent represented comparable 1 had one bath, where in fact it has at least two. In [the] Report, Respondent failed to state that comparable 1 has two in-law quarters. In [the] Report, Respondent stated that comparable 3 is a two-bath house with an additional bath in the in-law quarters. On the foregoing allegations, the Department brought the following three counts against Cartaya: COUNT IV Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice in violation of Section 475.624(14), Florida Statutes. COUNT V Based upon the foregoing, Respondent is guilty of having failed to use reasonable diligence in developing an appraisal report in violation of Section 475.624(15), Florida Statutes. COUNT VI Based upon the foregoing, Respondent is guilty of culpable negligence in a business transaction in violation of Section 475.624(2), Florida Statutes. Cartaya admitted the allegations set forth in paragraphs 18 and 20 of the Administrative Complaint. Those undisputed allegations, accordingly, are accepted as true. The rest of the allegations about this property were based upon a Residential Appraisal Field Review Report (the "Marmin Report") that Frank L. Marmin prepared in May 2001 for his client Fannie Mae. The Marmin Report is in evidence as Petitioner's Exhibit 5. Mr. Marmin did not testify at hearing, although his supervisor, Mark A. Cannon, did. Mr. Marmin disagreed with Cartaya's opinion of value regarding 18032 NW 48th Place, concluding that the property's market value as of August 9, 1999, had been $100,000, and not $128,000 as Cartaya had opined. The fact-findings that follow are organized according to the numbered paragraphs of the Administrative Complaint. Paragraph 19. Cartaya admitted that she erred in noting that the property is located in FEMA Flood Zone "X," when in fact (she agrees) the property is in FEMA Flood Zone "AE." She did, however, include a flood zone map with her appraisal that showed the correct flood zone designation. Cartaya's mistake was obviously unintentional——and no more blameworthy than a typographical error. Further, even the Department's expert witness conceded that this minor error had no effect on the appraiser's opinion of value. Paragraphs 20 through 24. The Department asserts that two of Cartaya's comparables were not comparable for one reason or another. The Department failed clearly and convincingly to prove that its allegations of fact concerning the two comparables in question are true. Thus, the Department failed to establish its allegations to the requisite degree of certainty. Ultimate Factual Determinations Having examined the entire record; weighed, interpreted, and judged the credibility of the evidence; drawn (or refused to draw) permissible factual inferences; resolved conflicting accounts of what occurred; and applied the applicable law to the facts, it is determined that: Applying the law governing violations arising under Section 475.624(2), Florida Statutes, to the historical facts established in the record by clear and convincing evidence, it is found as a matter of ultimate fact that Cartaya did not commit culpable negligence in connection with the appraisals at issue. Applying the law governing violations arising under Section 475.624(15), Florida Statutes, to the historical facts established in the record by clear and convincing evidence, it is found as a matter of ultimate fact that Cartaya did not fail to exercise reasonable diligence in developing the appraisals at issue. Applying the law governing violations arising under Section 475.624(14), Florida Statutes, to the historical facts established in the record by clear and convincing evidence, it is found as a matter of ultimate fact that, in connection with the Appraisal Report relating to the Hialeah Property, Cartaya did commit one unintentional violation of Standards Rule 2- 2(b)(vi) of Uniform Standards of Professional Appraisal Practice and two unintentional violations of Standards Rule 2-2(b)(ix).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that: As to Case No. 04-1148, Cartaya is not guilty on Counts I through VI, inclusive; As to Case No. 04-1680, Cartaya is not guilty on Counts I, II, and IV; she is, however, guilty, under Count III, of one unintentional violation of Standards Rule 2-2(b)(vi) and two unintentional violations of Standards Rule 2-2(b)(ix). As punishment for the violations established, Cartaya's certificate should be suspended for 30 calendar days, and she should be placed on probation for a period of one year, a condition of such probation being the successful completion of a continuing education course in USPAP. In addition, Cartaya should be ordered to pay an administrative fine of $500. DONE AND ENTERED this 10th day of November, 2004, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 10th day of November, 2004.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to these proceedings, respondents Barry P. Rifkin and Flag Realty, Inc. were registered with the Florida Real Estate Commission as brokers, and respondent Sandra Mae Rifkin was registered as a broker-salesman. Respondents caused to be placed in the yellow pages of a Southern Bell Telephone and Telegraph Company telephone directory for Hollywood a full page advertisement containing the words "Free Appraisals by Licensed Real Estate Appraiser". As noted above, all the respondents were registered with the Florida Real Estate Commission, but none were specifically licensed as appraisers by any governmental or regulatory agency regulating only appraisers. Bobby Glenn Johnson, who was a broker for Flag Realty, Inc. at the time the ad was placed, had received on December 1, 1971, a certificate from an instructor of the Broward County Public Schools, Division of Vocational, Technical and Adult Education, certifying that ,he had met the requirements of a 36-hour course of training in real estate appraising. Prior to November or December of 1974, respondent Barry Rifkin and one Arnold Savader each held a fifty percent interest in Broward Investment Company. The purpose of this company was to purchase from the owner derelict houses needing repair or houses going into foreclosure, fix them up and then resell them. It appears from the testimony that at the time houses were originally purchased by Broward Investment, respondent Rifkin was nothing more than a silent partner an investor who at times gave advice to Savader regarding the value of the property to be purchased. After the houses were repaired or restored by Savader, they were listed with Flag Realty, Inc. for resale. The homes purchased were put in Savader's name, and only Savader's name appeared on the Company's business card. It appears that prior to purchasing the homes and listing them with Flag Realty, all contact with prospective clients was done by Savader. A form of advertising used by Broward Investment Company was a door- hanger advertisement stating in part "No Brokers Involved (No Commissions)". There was no evidence that brokers' commissions were ever charged to the sellers.
Recommendation In consideration of the findings of fact and conclusions of law recited above, it is recommended that the charges contained in the information based upon the offenses of misleading advertising be dismissed. Respectfully submitted and entered this 17th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Recommendation The Hearing Officer having found factually that the Respondents did not violate the provisions of Chapter 475 Florida Statutes, as charged, recommends that no action be taken against the registration of any of the Respondents. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Spencer Fox, Esquire Suite 107, 9065 Galloway Road Miami, Florida 33176
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
