The Issue The issue in Count I is whether Section 475.42(1)(j) absolutely prohibits a broker or salesman from filing a lien or other encumberance against real property to collect a commission. The issue in Count II is whether the Respondents violated a lawful order of the Commission by failing to remove the motion of lis pendens contrary to Section 475.25(1)(e), Florida Statutes.
Conclusions Section 475.42(1)(j), Florida Statutes, provides as follows: "No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose." Clearly the Respondents placed or caused to be placed the notice of lis pendens in question. A notice of lis pendens is clearly an "other writing which purports to effect the title of, or encumber, any real property." The Florida Real Estate Commission argues that this provision is an absolute bar to the filing of any lien for the purpose of collecting a commission. The Respondents argue that this provision is not an absolute bar and there are circumstances when a broker may file a notice of lis pendens. They also assert that the notice of lis pendens falls within the exception because the Circuit Court refused to remove the notice of lis pendens upon motion of the property owner. Lastly, it is argued that the notice was filed by counsel for the Respondents in good faith on an action at law and that this mitigates their action even if there was a violation. The language of Section 475.42(1)(j) cannot be read to absolutely prohibit a broker from obtaining a lis pendens. When given this construction, it effectively denies brokers and salesmen access to the courts for redress of injury as provided in Article I, Section 21 of the Florida Constitution. Section 475.42(1)(j) is a complex provision which is subject to two interpretations. One interpretation would prohibit a broker or salesman from filing an encumberance if the same were known to him to be false, void or not authorized by law; if not authorized to be upon the public records; if not executed in the form entitling it to be recorded; if the execution of recording thereof has not been duly authorized by the owner of the property; if maliciously (filed); if for the purpose of collecting a commission, if to coerce payment of money to the broker or salesman or other person; or if for any other unlawful purpose. This first interpretation would consider each clause a separate limitation on filing an encumberance. The facts analyzed under this interpretation do not show any knowledge by Respondents that the lis pendens was false, void or not authorized to be filed or not on a form entitling it to be recorded. The facts do not show that Respondents filed the lis pendens maliciously, for the purpose of collecting a commission, or for the purpose of coercing payment of money to the broker or salesman, or for any unlawful purpose. The nature of lis pendens would not require the owner's authorization of execution for recording. The facts show that the lis pendens was filed by Respondent's attorney in conjunction with a suit brought by the Respondents against Perrin. The record also shows that the circuit court determined that the lis pendens was recordable when it denied the motion to remove it. The notice of lis pendens was neither malicious, coercive or for the purpose of collecting the commission. The notice was for the purpose of perfecting the claim against the property for execution of the judgment if the Respondents prevailed in the suit. Executing on a judgment is different from collecting the commission or coercing payment. Under this interpretation the Respondents have not been shown to violate Section 475.42(1)(j). A second interpretation would read the clause, ". . . if the same is known to to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been authorized by the owner of the property. . ." as the first of two criteria to be met to establish a violation. The second criteria would consist of proof that the encumberance was recorded maliciously or for the purpose of collecting a commission, or to coerce payment of money to the broker or salesman, or for any unlawful purpose. Again the facts do not show there was knowledge by the Respondents of the falsity, or impropriety of the notice of lis pendens, as stated above. Again the facts show that the lis pendens was filed in conjunction with a law suit pending between the Respondent and the property owner, and that the court before which the action was pending refused to remove it. The file of the notice by Respondent's counsel was a legitimate method of perfecting the Respondent's claim should they prevail and obtain judgment. The facts do not indicate that the filing of the notice was malicious, coercive or for the purpose of collecting a commission. Under either interpretation, Respondents did not violate the statute. COUNT II The Respondents are charged in Count II with violation of Section 475.25(1)(d), Florida Statutes, which provides that the registration of a registrant may be suspended for up to two years for violation of a lawful order of the Commission. Clearly, the facts reveal that the Respondents had a substantial interest involved in the litigation with Perrin. The order, of the Florida Real Estate Commission to remove the notice of lis pendens substantially affected their rights in this litigation. Therefore, any final order directing Kay to remove the notice of lis pendens should have issued after an opportunity for hearing pursuant to Section 120.57, Florida Statutes. The evidence reveals that the Florida Real Estate Commission did not notice a hearing under Section 120.57, and therefore its order cannot be "lawful." The provisions of Section 475.25(1)(d) require that registrants not violate lawful orders. The Respondents have not violated Section 475.25(1)(d), Florida Statutes, by not removing the notice of lis pendens as directed by the order of the Florida Real Estate Commission.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken against the Respondent, Sam Kaye and Sam Kaye, Inc. DONE and ORDERED this 23rd day of September 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William E. Boyes, Esquire Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A. Post Office Box 3466 West Palm Beach, Florida 33402
Findings Of Fact The Respondent, Dudley Cohn, is a registered real estate salesman having been issued license number 0314085. The last known address of Respondent is 3351 NE 19th Avenue, Oakland Park, Florida 33306. Dudley Cohn also goes by the name of Doug Cohn, under which name he is not licensed. Cohn did not give the name of Douglas or Doug as an alias on his application for licensure. During March and/or April of 1980, several advertisements for real property appeared in the Pompano Shopper in the classified section. In response to the subject advertisements, John Michaelis and Albert Crowley called the telephone numbers listed in said advertisements to obtain information on real property advertised therein. One of the telephone numbers which appeared in the advertisements is a number which was maintained by former real estate licensees, Real Estate Merchandisers, Inc., and George May. Respondent Cohn visited Mr. and Mrs. Michaelis and Mr. Crowley, individually, at their residences in 1980, and at that time he identified himself to them as a salesman associate of Real Estate Merchandisers, Inc. For the purpose of identification, Respondent presented to the Michaelises and to Crowley, individually, business cards from Real Estate Merchandisers, Inc., and/or George May, Broker, on which Respondent had written his name as "Cohn" or "Doug Cohn." (Transcript, pages 16, 41, 44; Petitioner's Exhibits 1, 4.) After identifying himself as a representative of Real Estate Merchandisers, Inc., Respondent proceeded to make a sales presentation to the Michaelises and Crowley, individually, for the purpose of persuading them to purchase investment property in the Miami area. Respondent represented to the Michaelises that he had seen the property and it was beautiful, that it was high and dry, and that access by road existed to the property. Based on these representations, on April 10, 1980, the Michaelises agreed to purchase the real property located in Dade County, Florida, being sold by Respondent and executed an agreement for deed. Respondent also represented to the Michaelises that the property was located approximately 2.5 miles west of the Krome Avenue cutoff of U.S. Highway 27, behind a cement plant. Respondent gave to the Michaelises and Crowley copies of maps indicating the location of the subject property and stating it was behind the cement plant. (Transcript, pages 21, 22, 27, 45, 46, 48, 49, 50, 55, 57, 61, 93, 94, 95, 96, 98; Petitioner's Exhibits 2, 5, 6.) Based upon the representations of its location made by Respondent, Crowley agreed to purchase a piece of real property located in Dade County, Florida, and gave Respondent a check in the amount of $1,000 to serve as a binder on said property. Crowley instructed Respondent to hold the check until Crowley had inspected the real property. Respondent tried to cash the check, but the bank refused to honor the check. Crowley learned from the Miami Planning Commission that the property in question was not as Respondent had represented it to be and did not go through with the purchase. (Transcript, pages 29, 32, 33.) Said properties in actuality were located approximately seven to 15 miles west of the Krome Avenue cutoff of U.S. Highway 27. The subject property is accessible only by air boat or other off-road vehicles. No plans existed to develop roads in this area. (Transcript, pages 31, 58, 62, 63, 64, 99, 100, 101, 178, 179, 184, 185, 186, 192, 193, 200.) When the Michaelises went to view the subject property, it was submerged below standing water. Said property is normally submerged below ground water at least nine months out of each year and lies in a vital water flow area for the South Florida Everglades area. (Transcript, pages 170, 171, 172, 174, 175, 176, 177, 184, 185, 189, 190, 191, 198.) At the time that Respondent contacted the Michaelises and Crowley, Respondent was registered as a non-active real estate salesman with the Florida Real Estate Commission. Respondent had never personally seen the property he was selling. (Transcript, pages 203, 206, 248; Petitioner's Exhibits 1, 3.) Respondent gave money to his broker to have his registration changed from inactive to active. When advised that his license was not active, Respondent immediately applied to activate his license.
Recommendation Having found the Respondent, Dudley Cohn, also known as Douglas Cohn, guilty of two counts of violating Section 475.25(1)(b), Florida Statutes, as alleged by the Florida Real Estate Commission, it is recommended that the license of Respondent be suspended for two years. DONE and RECOMMENDED this 23rd day of December, 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 23rd day of December, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Eli Breger, Esquire, and Richard Breger, Esquire 17200 NE 19th Avenue North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
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
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violations of Sections 475.25(1) (a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florida Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent James Henkel appeared at the hearing after it had commenced unaccompanied by legal counsel. The Hearing Officer advised him of his rights in the administrative hearing. Respondent Henkel is a registered non-active real estate sales percentian, and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 4).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwin who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James H. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for it. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to, sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to' assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that the property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowner "service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, in fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent James Henkel be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James Henkel c/o Dory Auerbach 456 Northeast 29th Street Miami, Florida 33137
Findings Of Fact Respondent Gladys A. Gibbons is licensed as a real estate broker by the Florida Real Estate Commission under license number 0031192 and has been so licensed at all times material to this case. During such time she was employed as the broker for Gregoire-Gibbons, Inc. Respondent Dorothy M. Comolli is licensed as a real estate salesman under license number 00336387 issued by the Florida Real Estate Commission and has been so licensed at all times material to this case. During the period in question here she was employed by Gregoire- Gibbons, Inc. and was supervised by Respondent Gladys A. Gibbons. On March 3, 1981 Ms. Dorothy Hawks listed her residential property located at 2349 Third Avenue North, St. Petersburg, Florida, for sale with Mr. Gerald O'Conner, a real estate salesman employed by Humpe Roney, Inc., in St. Petersburg, Florida. On July 1, 1981 Respondent Dorothy Comolli called Mr. O'Conner to tell him that she had a contract on Ms. Hawks' property. The offer which Ms. Comolli presented on behalf of Ms. Hortense Willoughby was an option to purchase with a lease. When the offer was presented to Ms. Hawks she demurred about the option and counteroffered with a lease and a contract for sale which provided for closing within one year. On a document entitled Real Estate Purchase and Sale Agreement dated July 1, 1981 the parties negotiated the terms of the property sale. Their handwritten amendments to the form contract were later incorporated into a real estate purchase and sale agreement dated July 14, 1981 which was executed by Ms. Willoughby but never signed by Ms. Hawks. With respect to the rental portion of the transaction the first contract was a receipt for deposit and agreement to lease dated July 19, 1981 presented through Ms. Comolli with a promissory note in the amount of $500 attached as a security deposit for the last month's rent on Ms. Hawks' house. The text of the receipt recited that the lease was for a period of one year with monthly payments of $500 a month to begin on August 15, 1981. It further provided for $200 "security" plus $500 for the last month's rent in a three-month promissory note. Both the note and the receipt for deposit and agreement to lease were presented by Ms. Comolli to Carol Denker at Humpe Roney, Inc. Ms. Denker had taken over Ms. Hawks' account due to the vacation of Mr. O'Connor. In addition to these documents Ms. Comolli gave Ms. Denker $200 as an earnest money deposit on the sale of the house. Ms. Denker in turn gave Ms. Comolli a receipt for the $200 but later returned the $200 to Ms. Comolli as it is customary for the agent of the purchaser to hold the deposit. The form of the promissory note and the receipt for deposit and agreement to lease were not acceptable to Ms. Denker. She had been instructed that promissory notes witnessed by a realtor were a bad business practice and were not acceptable to Humpe Roney, Inc. Ms. Denker therefore gave Ms. Comolli a promissory note form acceptable to Humpe Roney for Ms. Willoughby to execute. Ms. Denker then attempted to contact Ms. Hawks to let her know about the promissory note but was not able to reach her. On July 21, 1981 Humpe Roney prepared on its forms, a contract for sale of real estate and a receipt for deposit and contract for lease. The record is not clear why Humpe Roney wanted the contracts rewritten. After they had been redrawn Ms. Comolli picked them up, had Ms. Willoughby sign them, and returned them to Humpe Roney for Ms. Hawks' signature. These two documents which were executed by Ms. Willoughby and Ms. Hawks finally constituted the agreement between the two parties. Neither document recites that the last month's rent would be paid by Ms. Willoughby in the form of a promissory note. The record is not clear why the final contracts as redrawn by Humpe Roney did not reflect the $500 promissory note. The deletion of any mention of the note was not at the request of either Respondent and does not appear to have been done intentionally by Humpe Roney. At no time was Ms. Hawks aware that a promissory note would be provided instead of cash for the last month's rent. Ms. Willoughby moved into the house on August 4, 1981. She stayed there for the months of August, September and October and part of November when she defaulted on the promissory note which was due on November 15, 1981. Upon her default she was evicted from the house. She is still in default on the promissory note and has no funds with which to pay it. When Ms. Hawks made a demand upon Gregoire-Gibbons for the $200 earnest money deposit plus the $500 last month's rent she received $200 and the $500 note. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint filed against Gladys A. Gibbons and Dorothy M. Comolli. DONE and RECOMMENDED this 9th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 9th day of February, 1984.
Findings Of Fact The Petitioner is the Department of Professional Regulation charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and the Rules promulgated pursuant to the statutes. At all times material to the Administrative Complaint, Respondent David Knaus was licensed as a certified general contractor in the State of Florida, holding License No. CG CO35153. At all times material hereto, Respondent's licensure was registered at the Construction Licensing Board as the qualifying agent for Homes of Port Charlotte, Inc. The primary operating officers of said corporation were Respondent and Barclay Ryder. As to Case No. 105157 On or about April 17, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with John W. Gunn to construct a house at 2474 Colon Lane, Port Charlotte, Florida, for the amount of $91,291.00. After completion of the house, a certificate of occupancy was issued. The Respondent provided the customer with a final contractor's affidavit, which claimed that all subcontractors and suppliers were paid. Thereafter, a number of claims of lien were filed against the property, the claims were in excess of $10,000 for work and/or supplies for which the general contractor had already been paid by the escrow agent, Florida State Land Title Company. Said claims were paid off by the owners of the property. Neither the Respondent, nor the company, had the liens removed within 30 days after the date of the filing of the liens. As to Case No. 105718 On or about September 28, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with Wallace and Pamela Nichols to construct a house at 116 Peckham Street Southeast, Port Charlotte, Florida, for the amount of $90,027.00. After virtual completion of the construction, Homes of Port Charlotte received all of the money due them under the contract. The Respondent provided the Nichols with final contractor's affidavit which claimed that all subcontractors and suppliers were paid. Thereafter, a number of claims of liens were filed against the property for services rendered and/or materials supplied by subcontractors during the construction of said home, but remained unpaid. The general contractor had already been paid for said supplies and/or services on previous draws by Naples Federal, the lending institution. The Nichols had to pay approximately $5,000.00 additional in order to complete unfinished items and/or to bring the house to a state of completion called for in the original contract and to satisfy the liens. Neither the Respondent, nor the company, had the liens removed within 30 days after the date of the filing of the liens. As to Case No. 105774 On or about April 29, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with Victor and Angelina Wasilow to construct a house at 7234 Bargello Street, Englewood, Florida, for the amount of $54,207.90. After completion of the construction of the home, the Respondent furnished the Wasilows with final contractor's affidavit which claimed that all subcontractors and suppliers were paid. Thereafter, a number of claims of lien were filed by subcontractors for services rendered and/or materials supplied in the construction of the home, but remained unpaid. The general contractor had already been paid for said supplies and/or services by the escrow agent, Florida Land Title Company. The owners, Mr. and Mrs. Wasilow, had to pay extra for the completion of the cesspool, which was to have been included in the original contract, and incurred attorney fees in the amount of $300.00 for legal advice associated with the problems. Neither the Respondent, nor the company, had the liens removed within 30 days after the date of the filing of the liens. As to Case No. 016937 On or about April 20, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent is the qualifying agent, contracted with Chris and Lorraine D'Angelo to construct a house at 581 Queens Avenue, Port Charlotte, Florida, for the amount of $70,758.00. When the house was approximately 60 to 65 percent complete, construction stopped, and the Respondent's company abandoned the project due to the company's declaration of bankruptcy. The D'Angelos subsequently finished construction of the house on their own. However, a claim of lien was filed by Nicks Title Company in the amount of $846.12 for work that had been ordered by the general contractor and performed prior to the general contractor leaving the job. The D'Angelos in completing their house according to the original specifications were required to spend approximately $10,000.00 in additional funds. As to Case No. 107168 On or about March 28, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with Alfred and Adele Schmidt to construct a house at 1130 Birchcrest Boulevard, Port Charlotte, Florida, for the amount of $84,932.00. In the early part of August, 1988, when the contractor had drawn all of its money due under the contract, with the exception of $7,542.50, the Schmidts attempted to move into their home only to find the house approximately only 60 percent complete and the job abandoned. The Schmidts recommenced construction of the house on their own and expended the remainder of the money left in the escrow account (about $9,000.00) and an additional $25,622.00 in order to complete the house according to the original contract specifications. Subsequently, a number of claims of lien were filed on their property by subcontractors for services performed and/or supplies furnished during the construction of the house, which work or supplies had already been paid for to the general contractor by the Schmidts. Neither the Respondents, nor the company, had the liens removed. As to Case No. 110301 On or about April 15, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent is the qualifying agent, contracted with Louis and Phyllis Silva to construct a house at 447 Carolyn Street, Port Charlotte, Florida, for the amount of $74,400.00. After the contractor had received all monies due under the contract, including payment for all extras ordered, a number of claims of lien were filed against the property by subcontractors and/or suppliers for services performed and/or supplies furnished during the construction of the home. The general contractor had already received payment for said supplies and services. The Respondent had provided the customer with final contractor's affidavit claiming all subcontractors and suppliers had been paid. Neither the Respondent, nor the company had the liens removed within 30 days after the date of the filing of the liens. As to All Cases On June 1, 1990, after trial on a thirty count Amended Information before the Circuit Court for Charlotte County, Florida, a jury returned a verdict of guilty as to eight counts of grand theft, a felony, and nine counts of misuse of monies, a misdemeanor. Each count related to the practice of contracting. Motions to set aside the verdict are pending. A presentence investigation was ordered by the presiding judge, and disposition and sentencing was scheduled for a date subsequent to the date of the formal hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Section 489.129(1)(l), Florida Statutes, as to Case Nos. 105157, 105718, 105774 and 110301; violating Section 489.129(1), Florida Statutes, as to Case Nos. 105157, 105718, 105774, 016937 and 107168; violating Sections 489.129(1)(m) and 489.129(1)(j), 489.119 and 489.105(4), Florida Statutes, as to Case Nos. 105157, 105718, 105774, 016937 and 107168; and that Respondent be found not guilty of violating Section 489.129(1)(b), Florida Statutes. FURTHER RECOMMENDED that a final order be entered revoking Respondent's contractor's license in accordance with disciplinary guidelines set forth in section 21E-17.001 (9), (10), and (19), Florida Administrative Code. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, 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 1st day of February, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,8,9 and 10 (in part) Rejected as not supported by clear and convincing evidence: paragraph 10 (in part) Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,5,11 (#105157) 1,2,3 (#105718) 1,2, (#105774) 1,2,3,4 (#106937) 1,2 (#107168) 1; (#110301) 1,2 Rejected as against the greater weight of the evidence: paragraphs 4,8,10, (#105157) 4, (#105718) 3 (#105774) 5, (#106937) 3, (#107168) 2; (#110301) 3 Rejected as not relevant: paragraphs 6,7,9 Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McGill, Esquire 1101 South Tamiami Trail Suite 101 Venice, FL 34285 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202
