The Issue Whether the Respondent is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction in violation of Section 475.25, Florida Statutes. Whether the license of Respondent should be revoked or suspended or whether the Respondent should be otherwise disciplined.
Findings Of Fact Respondent is a registered real estate salesperson who holds license no. 0098090. He was employed as a "listing solicitor" by World Wide Property Services, Inc., a registered real estate broker (now dissolved) for about a month, from December, 1975 to January, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. 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 World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation 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 cateloging 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 the property would be "analyzed", comparing it to adjacent property to arrive at a price baked 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 curse of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listings, but no sales were made. Respondent said he visited the properties World Wide Property Services, Inc. had for sale in Florida and that most of it was salable. Respondent testified that he read from the script heretofore referred to as "front" and "drive" but varied it from time to time. He was aware of articles stating foreign investors were interested in buying Florida property and thought it entirely possible. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property; that Respondent solicited Frank Austin, a number of times by telephone and induced him to send to World Wide Property Services, Inc. $285.00 claiming Mr. Austin's property bought for $4,700 could be sold for $14,000 `but that no offer to purchase was ever made. Respondent contends: that he never misrepresented or fraudulently represented anything to any client; induced any potential customer to get his money and that the property was mostly salable.
Recommendation Reprimand the Respondent in writing. DONE AND ENTERED this 21st day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission Post Office Box 1900 400 West Robinson Avenue Orlando, Florida 32801 Clifford C. Woodard 231 Roxboro East Longwood, Florida 32750
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 The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Elliott H. Nachwalter was a licensed real estate salesman in the State of Florida, having been issued license number 0451805 by Petitioner, Florida Real Estate Commission. The last license issued to Mr. Nachwalter was as a salesman, c/o Expo Realty, Inc., 9445 Bird Road, #101, Miami, Florida 33165. License number 0451805 remains in involuntary inactive status. A person by the name of Elliott Nachwalter served as an officer of a Florida corporation, Liberty Metals Corporation, which was involuntarily dissolved on November 16, 1987. At the hearing, Petitioner asserted that the Elliott Nachwalter of Liberty Metals Corporation was the same Elliott Nachwalter who is the Respondent is the instant case. Petitioner further asserted that in the summer of 1988, through Liberty Metals Corporation, Respondent agreed to sell to Mrs. J. D. Morrison platinum and solicited from Mrs. J. D. Morrison checks totaling $63,000 in payment for the platinum, that the platinum was never delivered to Mrs. Morrison and that Respondent induced Mrs. Morrison into returning a check in the amount of $168,202 which was offered to Mrs. Morrison by Respondent when her account with Liberty Metals was closed. Neither Mrs. Morrison nor Respondent were present or testified at the hearing. Instead, Mrs. Morrison's assertions were delivered through the testimony of her adult son, J. Davis Morrison, Jr. Mr. Morrison holds the durable family power of attorney over the property and assets both real and personal of his father, Kirk Morrison. It was under this authority that Mr. Morrison sought to propose the testimony about his mother's dealings with Liberty Mutual. Mr. Morrison stated that his mother was aged and incompetent to testify; however, no competent evidence of her condition was offered. Further, the relationship between the power of attorney which Mr. Morrison held over his father's property and assets, and any authority over his mother's property and assets which may have been involved with Liberty Mutual was not demonstrated. Mr. Morrison overheard his mother talking on the telephone to someone she identified as "Elliot." He was also aware, through his mother, that she was engaging in dealings for platinum with a Carlos Mas who she told him was in business with Mr. Nachwalter. Mr. Mas has since died. When Mr. Morrison discovered checks of his mother made out to Liberty Metals during the summer of 1988 and saw no confirmations for the purchases, he insisted that his mother close her account with Liberty Metals. On August 23, 1988, a check was delivered to Mrs. Morrison in the amount of $168,202 drawn on Pan American Bank, N.A., and made payable to Mrs. Kirk Morrison. According to Mr. Morrison, the check was returned to the sender by his mother at the insistence of either Mr. Nachwalter or Mr. Mas. Mr. Morrison appeared to be a truly concerned son with, no doubt, the interest of his mother in mind. However, without direct testimony and other forms of competent evidence, the proof has failed to demonstrate that Respondent was involved in the proposed scheme or committed any of the acts alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Real Estate Commission issue a Final Order dismissing the administrative complaint filed against Elliott Nachwalter, licensed real estate salesman holding license number 0451805. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March, 1990. JANE C. HAYMAN 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 9th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4524 The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact. PETITIONER Adopted in paragraph 1. Adopted in paragraph 1. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Adopted, in part, in paragraph 6, rejected, in part, in part, as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. RESPONDENT Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 6. Rejected as hearsay. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 John M. McDaniel, Esquire 777 Brickell Avenue, PH-2 Miami, Florida 33131 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all times pertinent to these proceedings, Respondent, Private Money Mortgage Company (PMMC), was a mortgage brokerage business in the State of Florida holding License Number HB592732699 that had been issued by Petitioner. At all times pertinent to these proceedings, Frank Donahue was a licensed mortgage broker in the State of Florida holding License Number HA267474770 that had been issued by Petitioner. The Department of Banking and Finance, the Petitioner in these proceedings, is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 494, Florida Statutes. In 1985, Mr. and Mrs. A. Charles Cinelli bought a house in Palm Beach County, Florida, and moved from upstate New York to Palm Beach County, Florida. Respondent, Frank Donahue, assisted Mr. and Mrs. Cinelli in obtaining financing for the home the Cinellis purchased in Palm Beach, County. In connection with this 1985 transaction, Mr. Donahue forwarded to the Cinellis an "Exclusive Broker Agreement", which they executed and returned to him. Because this 1985 transaction involved a purchase, Mr. Donahue ordered an appraisal for this property and charged its cost as a part of the Cinelli's closing costs. Subsequent to that transaction, Mr. Donahue and his wife, Brenda, saw Mr. and Mrs. Cinelli at occasional social events. Franklin T. Smith is a certified public accountant who performed professional services for Mr. and Mrs. Cinelli and for Mr. and Mrs. Donahue. Mr. Smith referred the Cinellis to Mr. Donahue in 1985 and advised the Cinellis during the transaction that is the subject of this proceeding. Prior to December 2, 1988, Mr. Cinelli contacted several mortgage brokers in the Palm Beach County area to discuss the possibility of obtaining a mortgage on certain real property located in upstate New York. Mr. Cinelli contacted Mr. Donahue by telephone and discussed with him his desire to raise capital to begin a business in Florida. Mr. Cinelli estimated that he would require approximately $1,000,000 to start this business. Mr. Cinelli told Mr. Donahue that he and Mrs. Cinelli owned certain commercial real property in upstate New York and that State Farm Insurance Company held an option to purchase this property for the sum of $1,450,000. Mr. Cinelli did not want to wait to learn whether State Farm intended to exercise this option to purchase and he discussed with Mr. Donahue the possibility of obtaining the desired capital by securing a mortgage on this property. Mr. Donahue advised Mr. Cinelli that he could expect to secure a mortgage for approximately $700,000 (which was approximately 50% of the amount of the option contract) and that he would need a current appraisal. Mr. Donahue also informed Mr. Cinelli that he would require the sum of $2,500 as a non-refundable deposit to begin seeking such a commitment. On or about December 2, 1988, Mr. Cinelli provided Mr. Donahue with a copy of the option agreement with State Farm and with a copy of the agreement dated September 21, 1988, which extended the time within which State Farm could exercise its option for an additional six months. Mr. Cinelli reiterated to Mr. Donahue that the option price was for $1,450,000 and that he wanted to mortgage the property for $1,000,000. Mr. Cinelli also provided Mr. Donahue with the name, address, and telephone number of Mr. Wayne Lupe, who was represented by Mr. Cinelli to be his MAI appraiser in Schenectady, New York. On December 15, 1988, Mr. Donahue sent to Mr. Cinelli a letter which attached an "Exclusive Broker Agreement" that had been executed by Mr. Donahue on December 15, 1988. This was the same "Exclusive Broker Agreement" form that Mr. Donahue had used for the 1985 Cinelli transaction. The body of the letter provided as follows: Enclosed please find a copy of my exclusive brokers agreement detailing the probable terms of the loan which you are seeking. This agreement is the same agreement which you signed when you purchased your current resi- dence. The agreement calls for both you & Joan to sign and return along with a nonrefundable deposit in the amount of $2500.00 to Private Money Mortgage Corp. The above noted deposit shall be credited towards your closing costs at the time of closing, if a commitment is offered. I have spoken to several of my investors about your concerns and I am awaiting confirmation of their substantial interests prior to ordering the appraisal. I will contact you as soon as I have received the return of this agreement along with your deposit in order to fill you in on our efforts to secure you the most competitive loan on your desired terms. The Exclusive Broker Agreement reflected that the amount of the mortgage would be $700,000 and disclosed that the total estimated costs that would be incurred in securing the mortgage was $78,346, which included a broker's fee of $35,000 and an estimated appraisal fee of $3,500. The Exclusive Broker Agreement, signed by Mr. Donahue on December 15, 1988, contained the following provision: DEPOSIT: In consideration of the sum of $2,500, receipt of which is hereby acknowledged, and in compliance with Chapter 494, Florida Statutes, Broker accepts this application and agrees to exert his/her best effort to obtain a commitment for loan in accordance with the terms and conditions set forth herein. This deposit shall be credited toward closing costs at the time of closing the permanent loan or commitment, less Broker's expenses. Among the "Standards" which were incorporated as terms and conditions of the Exclusive Broker Agreement was the following: Deposit. Client simultaneously with execution of this agreement has deposited with broker the amounts stated in this agreement in order to secure the obligations owed by client to broker in the event of default of client as provided in the agreement and to reimburse broker of any and all expenses, including telephone charges, lodging, and administrative fees for credit checks and processing appraisals and the like, including upon any cancellation by client, reimbursement for broker's time expended incurred by broker, whether or not a loan commitment is obtained by broker. Mr. Cinelli was concerned that he would be incurring substantial fees and costs if Mr. Donahue obtained a commitment and Mr. Cinelli decided not to accept it. Mr. Smith advised Mr. Cinelli that the estimated expenses were not abnormally high, but he suggested that his liability should be limited. In response to those concerns, Mr. Donahue prepared and delivered between December 15, 1988, and the end of the year an addendum to the Exclusive Broker Agreement that would have limited Mr. Cinelli's liability to the sum of $7,500. That addendum provided, in pertinent part, as follows: It is hereby understood and agreed by the parties that in the event a loan commitment is offered to the applicants & they decide to refuse this commitment, the applicants liability will be limited to the sum of Five Thousand Dollars plus the original deposit of $2,500.00 for a total amount of $7,500.00. It is further understood that said commitment must bear approximately the same terms and conditions as the attached agreement. Mr. and Mrs. Cinelli gave Mr. Smith the sum of $2,500 in cash to deliver to Mr. Donahue, but there is conflicting testimony as to when this money was delivered to Mr. Smith for delivery to Mr. Donahue. Mr. Cinelli testified that the money was delivered before the Exclusive Broker Agreement dated December 15, 1988, was prepared. Mr. Donahue testified that the money was delivered after both the Exclusive Broker Agreement and the addendum thereto had been delivered to Mr. Cinelli. Mr. Donahue also testified that the statement contained in the Exclusive Broker Agreement that he signed on December 15, 1988, acknowledging his receipt of the $2,500 deposit was false. He did not explain why the addendum referred to the sum of $2,500 as "the original deposit". Mr. Smith did not recall when he delivered this money to Mr. Donahue, but he did recall having delivered the cash the same day he received it from the Cinellis. While his testimony is that he received the $2,500 during his initial meeting with Mr. and Mrs. Cinelli (which would be before Mr. Cinelli received the Exclusive Broker Agreement) this testimony lacks credibility because of Mr. Smith's lack of certainty as to dates. In addition, this testimony conflicts with the letter Mr. Smith wrote to Mr. Donahue at Mr. Donahue's request on August 28, 1989, which clearly indicates that the $2,500 was not paid until after the addendum to the Exclusive Broker Agreement had been prepared. This conflict is resolved by finding that the greater weight of the evidence establishes that the sum of $2,500 was delivered by Mr. Smith to Mr. Donahue after Mr. Cinelli had received both the Exclusive Broker Agreement and the addendum thereto. Mr. Donahue did not provide the Cinellis with any type of written agreement, other than his letter of December 15, 1998, the Exclusive Broker Agreement, and the addendum when he received the cash from Mr. Smith. There was no written receipt for these funds, nor was there any written memorandum of understanding between Mr. Donahue and the Cinellis as to whether payment for the appraisal that Mr. Donahue and Mr. Cinelli had discussed would be made from the $2,500. Mr. Cinelli was of the belief that $2,000 of the $2,500 deposit would be earmarked for the payment of the appraisal. Mr. Donahue was of the belief that the $2,500 was a non-refundable retainer and he treated that sum as an earned fee. There was no meeting of the minds between Mr. Cinelli and Mr. Donahue as to the nature of the $2,500 deposit, other than it was non-refundable. Specifically, there was no agreement as to what costs, if any, would be paid from that deposit. Mr. Donahue's normal business practice in transactions involving a refinance of property is different than his practice in transactions involving a purchase of property. In purchase transactions (such as the 1985 Cinelli transaction), Mr. Donahue arranges for the appraisals and treats the costs of the appraisal as an expense to be paid by the purchaser at closing. In refinance transactions (such as the 1988 Cinelli transaction), it is his practice to require his customer to deal directly with the appraiser in ordering and paying the costs of the appraisal. Respondents failed to establish that in the subject transaction, Mr. Donahue made it clear that Mr. Cinelli would be responsible for ordering and paying the cost of the appraisal. Mr. Cinelli believed that $2,000 of the $2,500 he later gave Mr. Donahue would be earmarked for the payment of the appraisal. Neither Mr. Donahue's letter of December 15, 1998, the Exclusive Broker Agreement, nor the addendum clearly resolved the dispute. There was a dispute between Mr. Donahue and Mr. Cinelli as to who ordered the appraisal. Mr. Cinelli denied that he ordered the appraisal and that his calls to his appraiser, Mr. Lupe, was only to advise him of Mr. Donahue's forthcoming call. Mr. Donahue denied that he ordered the appraisal and that his contacts with Mr. Lupe were after Mr. Cinelli had ordered the appraisal. Mr. Donahue contends that his contacts with the appraiser were merely to give the appraiser instructions as to the information that should be reflected by the appraisal. This dispute is resolved by finding that Mr. Cinelli ordered the appraisal through Mr. Lupe and that Mr. Donahue advised Mr. Lupe as to the information that should be reflected by the appraisal. It was determined from conversations between Mr. Donahue and Mr. Lupe that Mr. Lupe was not qualified to perform the appraisal and that Mr. Lupe would engage Albert L. Friedman, MAI and William J. McEvoy of Capitol Real Estate and Appraisal Company of Schenectady, New York, on Mr. Cinelli's behalf to perform the work. Messrs. Friedman and McEvoy prepared the appraisal and certified the same to Mr. Cinelli on March 13, 1989. The appraised value of the property was $2,100,000. As of the date of the formal hearing, the appraiser's bill of $2,000 had not been paid. Capitol Real Estate and Appraisal Company had billed both Mr. Donahue and Mr. Cinelli and an attorney representing Capitol Real Estate and Appraisal Company had written Mr. Cinelli a demand letter. It was the dispute over the payment of the appraiser's fee that prompted the complaint the Cinellis filed against Respondents. The Cinellis did not execute the Exclusive Broker Agreement and the addendum because they wanted to wait on the appraisal to see if the appraised value would permit them to borrow more than $700,000 and because they were not satisfied with the amount of the projected costs of consummating the transaction. Mr. Cinelli misled Mr. Donahue as to his intentions to execute these agreements. Mr. Donahue made several requests to the Cinellis that they execute the Exclusive Broker Agreement and addendum and return them to him. Despite the absence of an executed brokerage agreement, Mr. Donahue exerted considerable effort to seek a commitment consistent with the Exclusive Broker's Agreement and succeeded in securing such a commitment in April 1989. No part of the $2,500 Mr. Donahue received from Mr. Smith on behalf of the Cinellis was placed in escrow by Mr. Donahue. Respondents have made no accounting of the $2,500 and have paid no part of the appraisal bill. Mr. Donahue claims the deposit as a non-refundable earned fee, despite the absence of a written agreement to that effect. The Cinellis sold the subject property to State Farm in June 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by Petitioner which finds: that Respondents violated the provisions of Rule 3D-40.006(5), Florida Administrative Code, by accepting the $2,500 deposit from the Cinellis without a written agreement as to the disposition of those funds; that Respondents violated the provisions of Section 494.055(1)(e), Florida Statutes, and Rule 3D-40.006(6)(a), Florida Administrative Code, by failing to place said deposit in escrow; and that Respondents violated the provisions of by Section 494.055(1)(f), Florida Statutes, by failing to account for said deposit. It is further recommended that an administrative fine be levied against Respondents in the total amount of $1,000.00 for said violations. It is further recommended that the final order place the licenses of Respondents on probation for a period of one year with three special conditions of probation. The first special condition of probation would require Respondents to pay Capitol Real Estate and Appraisal Company the sum of $2,000 within sixty days of the Final Order. The second special condition of probation would terminate Respondents' probation upon timely compliance with the first special condition of probation. The third special condition of probation would prohibit Respondents from conducting any business as mortgage brokers within the State of Florida for a period of six months should Respondents fail to timely comply with the first condition of probation. RECOMMENDED in Tallahassee, Leon County, Florida, this 9th day of January, 1991. CLAUDE B. ARRINGTON 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 9th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4708 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 3-10, and 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2 and 11 are adopted in part by the Recommended Order, and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being argument. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4-6, 14, and 17 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are adopted in part by the Recommended Order. The characterization of the Cinellis having a "long standing relationship" with Mr. Donahue is rejected as being ambiguous and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 9-11 are adopted in part by the Recommended Order, but are rejected to the extent that they are subordinate to the findings made. The proposed findings of fact in paragraphs 12 and 13 are rejected as being recitation of testimony or as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being subordinate to the findings made or as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in paragraph 16 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. COPIES FURNISHED: Deborah Guller, Esquire Office of the Comptroller 111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401-5293 Marie A. Mattox, Esquire Douglass, Cooper, Coppins & Powell Post Office Box 1674 Tallahassee, Florida 32302-1674 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Appellant, Edward M. Mitchell, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc. The following "additional provision" was included in the agreement entered into for the purchase of the Property: Buyer to have 30 days from date hereof within which to obtain such permits as he deems necessary. If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived. In 1980, the Property was zoned C-1, neighborhood commercial. Under C- 1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation." On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove, however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described." The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore. On or about December 23, 1980, Mr. Mitchell purchased the Property for $44,211.92. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Development of the Property. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell. The "value" of the work performed by Mr. Mitchell was in excess of $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial space on the Property and the purchase of the abutting property would not have necessary. Procedure. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application. By letter dated March 1, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on May 24, 1991.
The Issue There were originally three counts in the Administrative Complaint. Count II was dismissed by the Petitioner Board at the beginning of the hearing. Count I alleges that the Respondents failed to refund a fee as required by the contract and the statutes; and Count III alleges that Respondents employed unlicensed persons as sales personnel. Based upon the stipulation of the parties, the primary issue in Count I was whether the Respondents refused the refund in bad faith or under color of some right to the fee. The issue in Count III was whether the activities engaged in by the unlicensed persons were regulated activities.
Findings Of Fact Count I Sav-On Rentals, Inc. (Sav-On), is a licensed corporate real estate broker located in Orlando, Florida, holding License #211231. Carl Stuart Courtney is the active broker for Sav-On and holds Licenses #0211232 and #0017643. Both Respondents were licensed at all times pertinent to the allegations in the Administrative Complaint. Susan Young and A. J. Stephens went to Sav-On on July 18, 1980, seeking information on renting a house. They executed a contract with Sav-On, paid the required $40 fee, and were given data on houses for rent. The contract contains the following pertinent language: . . .Notice: Pursuant to Florida Law: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain rental information you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. . . That night Young and Stephens changed their minds about renting a house. The next day they called Sav-On and requested a refund of their fee. Young rented an apartment from an apartment complex. On August 14, 1980, Stephens prepared the written refund request at Sav-On. Sav-On had a listing for the sublease of an apartment in the same complex in which Young rented her apartment. There is no evidence that Sav-On gave Young or Stephens any information on that sublease, or that Young rented her apartment based on her contact with Sav-On. Sav-On denied the refund on the basis that Young had leased a property available through Sav-On. As of the date of the hearing, Young and Stephens had not received a refund. Count II Christopher LaFrance, a licensed real estate salesman, was one of the first licensees hired by Sav-On Rentals, Inc., after its incorporation in July of 1979. He was employed until January, 1980. When LaFrance was first hired, there were several unlicensed clinical staff employed by Sav-On. These employees were holdovers from Sav-On's non- licensed business. One of the unlicensed persons, Dawn (last name not stated), was responsible for telephone service to persons already registered. She provided additional listings to persons already registered with Sav-On. Another of the unlicensed persons was Stephanie (last name not stated), who was a verifier. She called listings to determine if they were unrented and still available. Stephanie and Dawn were not licensed at the times in question. Between July of 1979, and January, 1980, these unlicensed personnel were gradually replaced by licensed persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that the Respondent, Carl Stuart Courtney, receive a letter of reprimand for violation of Section 475.25(1)(d), Florida Statutes; and that the Respondent, Sav-On Rentals, Inc., be placed on probation for a period of six months for the violation of Section 475.25(1)(d), Florida Statutes. DONE and ORDERED this 15th day of March, 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 15th day of March, 1982. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ronald W. Brooks, Esquire 338-D North Magnolia Avenue Orlando, Florida 32801 C. B. Stafford, Executive Director Board of Real Estate 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 The issue is whether the Respondent is guilty of misrepresentation, fraud, dishonest dealing, culpable negligence, or breach of trust in a business transaction contrary to Section 475.25(1)(b), Florida Statutes; and Whether, if the above allegations are proven, the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property transactions and rights of investors or others with whom he may sustain a confidential relation may not be entrusted to him by virtue of a second violation of Chapter 475, Florida Statutes, contrary to Section 475.42(1)(o), Florida Statutes.
Findings Of Fact The Respondent, Robert E. McMillan, III, is and was at all times material to the administrative complaint a licensed real estate broker holding license number 0317361. The Commission is charged under Chapter 475, Florida Statutes, with regulation of real estate brokers and salesmen. The Respondent was previously disciplined by the Commission by a Final Order dated September 2, 1992 in which the Commission found the Respondent guilty of violation of Sections 475.25(1)(b),(e),(k), and 475.42(1)(e), Florida Statutes. Dr. Manuel S. Couto and his wife desired to have a home built on Block 2, Lot 12 Marineland Acres, 1st Addition, Plat Book 5, page 50. They approached Respondent's business, which was a construction and real estate development concern, and spoke with Randy Joyner, a salesman employed by the Respondent and the brother of the Respondent's late wife, who had sold the Coutos the lot. The Respondent offered to build a particular house for the Coutos for $50,000. The Coutos counteroffered to purchase the house for $30,000 cash and to convey to the Respondent two lots described in the contract as: Section 29A, Block 7, Lot 4, Palm Coast, Florida, and Section 29A, Block 7, Lot 5, Palm Coast, Florida. Dr. Couto bought Lot 4 for $3,900, and Lot 5 for $4,900; however, he paid a total, including interest, of $15,264.80 for the two lots. Palm Coast is a real estate development located in the western portion of Flagler County in which the Respondent's business was located, and he was not particularly familiar with the area in which the Coutos' lots were located. The Respondent accepted the counteroffer, above, upon the recommendation of Joyner. The Respondent believed the lots in question to be valued at $10,000 each. The Coutos paid the Respondent $30,000, and the Respondent began construction. Shortly after commencement of the project, it was determined that the Respondent would have to do considerable site work in order to install a septic tank. The costs of this work, $5,400, was paid by the Respondent, and Dr. Couto wrote the Respondent an additional check in the amount of $1,900. In addition, Dr. Couto made numerous changes to the plans which raised the costs of the construction for which he was obligated to pay under the contract. Work progressed on the project until the Respondent became aware that the lots which were to be transferred were not valued at $10,000. A dispute arose between the Respondent and the Coutos regarding the Coutos paying the difference between the value of the lots and $20,000. When the dispute went unresolved, the Respondent ceased work on the project. Thereafter, the Respondent again began work on the project because of Dr. Couto constant badgering; however, the underlying disagreement about the value of the lots was unresolved. The Respondent finished the house at a cost to him of $55,004.82, and the Coutos paid him $38,425. When the second lot at Palm Coast was to be transferred, it was arranged to have the Coutos transfer the lot directly to the new purchasers, with the money, $4,690.37, due to the Respondent to be held in escrow pending payment of the subcontractors and materialmen building the Coutos' house. Dr. Couto prepared an affidavit that all the contractors had been paid for the Respondent to sign. It is this affidavit dated January 16, 1992, which purports to bear the signature of the Respondent notarized by Martha B. Bennett, Notary Public. The Respondent denies that the document bears his signature, and asserts that Dr. Couto signed the affidavit. Dr. Couto states that he saw the Respondent sign it, and the Respondent's secretary notarize it. The authenticity of this document was put in question by Respondent's answer to the administrative complaint, and the notary was not called as a witness. Dr. Couto and his attorney had attempted unsuccessfully to obtain similar affidavits from the Respondent, who had refused to sign them. At the time the affidavit was prepared, Dr. Couto was aware that materialmen had not be paid. The purported purpose of the affidavit was to release the funds retained by the title company. However, it was Dr. Couto who prepared the affidavit, and it was not presented to the title company to obtain the release of the funds. The affidavit was retained by Dr. Couto, and presented to the title company in June 1992, by Dr. Couto together with letters from Respondent stating that he was not going to pay the subcontractors. Upon the affidavit and letters, the title company paid the $4,690.37 to Dr. Couto. Given the background of the affidavit, the contradictory testimony about its execution, and the absence of additional authentication, the signature of the Respondent is not accepted as genuine. In spring 1992, various materialmen and subcontractors filed liens on the house being built for the Coutos. In order to clear the title to his home, Dr. Couto had to settle with the lienholders and pay them $14,878.18. As stated above, Dr. Couto received the proceeds from the sale of the second lot, $4,690.37. Subsequently, the matter was brought to the attention of the state's attorney. The Respondent paid the Coutos $3,000 in cash, and the state's attorney dropped the case against the Respondent after handwriting analysis was completed on the affidavit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the administrative complaint be dismissed. DONE and ENTERED this 29th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of November, 1994. APPENDIX The Petitioner submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 9 Paragraph 5,6 Paragraph 8,9,10 Paragraph 7 Rejected as contrary to better evidence, See Paragraph 13 Paragraph 8 Paragraph 15 Paragraph 9 Paragraph 16 COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Clifford A. Taylor, Esquire 507 East Moody Boulevard Bunnell, Florida 32110 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Florida Vantage Properties, Inc. and Richard Stewart Grimes, alleging that the Respondents were guilty of violation of Section 475.42(1)(j), Florida Statutes, by having placed or caused to be placed upon the public records of Palm Beach County, a written document which purports to effect the title of, or encumber, real property; and the recording of which was not duly authorizod by the owner of the property and for the purpose of collecting or coercing the money to the Respondents. The Florida Real Estate Commission introduced evidence that the Respondent Grimes, in behalf of the Respondent Florida Vantage Properties, Inc., (hereafter Vantage) filed an affidavit with an attached letter of agreement, which was Introduced and received into evidence as Exhibit 2, in the public records of Palm Beach County. The Florida Real Estate Commission introduced other evidence that Grimes caused those documents to be placed upon public records of Palm Beach County without the authority of the owner of the property which was the subject of the documents and for the purpose of collecting or coercing the payment of money to the Respondents. The Respondents introduced evidence concerning the documents which had been placed on the public records of Palm Beach, County concerning their original execution, purpose, and circumstances surrounding their having been placed upon the public records. Based upon the evidence presented, the issue of fact presented in this case is whether the affidavit and letter of agreement (Exhibit 2) purports to effect the title of or encumber the subject real property?
Findings Of Fact Richard Stewart Grimes and Florida Vantage Properties, Inc. are registered real estate brokers holding registrations issued by the Florida Real Estate Commission. Grimes, together with his two co-owners, sold C.W. Collins Corporation, hereafter Collins Corp., the following real property pursuant to a deposit receipt contract executed on August 20, 1973 and identified and introduced into evidence as Exhibit 4. Lot 6, Block 2, & Lots 5, 9, & 11, Block 5, Carriage Hill, as recorded in Plat Book 30, Pages 67 & 68 of the Public Records of Palm Beach County. The deposit receipt contract (Exhibit 4) was the product of negotiations entered into between Collins Corp. and Grimes and his co-owners. These negotiations had resulted in the execution of a deposit receipt contract identified and received into evidence as Exhibit 6. This deposit receipt contract addressed the proposed purchase of six lots to include the four lots eventually sold pursuant to the deposit receipt contract (Exhibit 4). Also introduced and received into evidence was a letter of agreement covering the property described in the deposit receipt contract (Exhibit 6). This letter of agreement is the same in all respects as the latter of agreement in Exhibit 2 with the exception that it addressed the two additional lots which, were the subject of the deposit receipt contract (Exhibit 6). The evidence introduced, to include the exhibits referended above, show that a portion of the consideration for the sale of the property to Collins Corp. was the letter of agreement (Exhibit 2) which contained an exclusive right of sale for Vantage and a deferred payment agreement under which Collins Corp agreed to Pay Vantage $1,000 on each lot sold by Collins Corp. Both Grimes and Collins agreed that the exclusive right of sale had been terminated prior to the date Exhibit 2 was filed in the public records of Palm Beach County, November 6, 1975. However, Collins Corp. could not unilaterally terminate the deferred payment agreement expressed in the last sentence of the letter of agreement as follows: C. W. COLLINS CORP. may also sell the property themself (sic) and will then pay only a $1,000.00 fee to FLORIDA VANTAGE PROPERTIES, INC. on each lot or house and lot package at time of closing. Grimes, as chief officer of Vantage, consulted legal counsel when Collins Corp. failed to pay $1,000 to Vantage when the corporation sold the first lot. Grimes authorized counsel to take action to obtain payment of the monies due Vantage from Collins Corp. As a result, Grimes executed the affidavit of October 7, 1975 (Exhibit 2) and caused this to be placed on the public records of Palm Beach County by counsel for Vantage and Grimes. Neither the affidavit nor the letter of agreement assert any interest in the subject property and the filing in no way constituted a notice of lis pendens.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action on the complaint against Florida Vantage Properties, Inc. or Richard Stewart Crimes. DONE AND ORDERED this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX The Respondent timely filed Proposed Findings of Fact (PFF) in this cause, which were considered by the Hearing Officer as follows: Paragraphs 1 and 2 of PFF are incorporated in paragraph 1 of the Recommended Order (RD). Paragraphs 3 and 4 of PFF are incorporated in paragraph 2 of the RD. Paragraph 5 of PFF is incorporated in paragraph 3 of the RD. Paragraphs 6, 7, 8 & 10 of PFF are incorporated in paragraph 4 of the RD. Paragraphs 9, 11, 12,13 and 14 are not material to consideration of the issue presented. Paragraph 15 is consistent with the ultimate conclusion of law reached in the RD. COPIES FURNISHED: John Huskins, Esquire Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Arthur C. Koske, Esquire Post Office Box 478 299 West Camino Gardens Blvd. Boca Raton, Florida 33432 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION CD 14999 Petitioner, PROGRESS DOCKET vs. NO. 3283 FLORIDA VANTAGE PROPERTIES, INC. and RICHARD STEWART GRIMES DOAH NO. 78-696 Respondents. PALM BEACH COUNTY /
The Issue The issue is whether Respondent's, Diane Thompson, a licensed Florida real estate broker, license should be disciplined for fraud, misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact Respondent, Diane Thompson, at all times material, was a Florida real estate broker, issued license number 0582890 in accordance with Chapter 475, Florida Statutes; was employed by Di-All Company, 5607 Interbay Boulevard, Tampa, Florida; and was subject to the regulatory jurisdiction of the Florida Real Estate Commission (Commission). Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, the Department is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. Diane Thompson, as the Listing Broker for Di-All Company, entered into a Residential Listing Contract (Listing Contract) with the seller (Metcalfe), for the exclusive right to secure a purchaser for Metcalfe's waterfront residential villa located at 2132 Cedar Drive, Dunedin, Florida, at an asking price of $350,000. The Listing Contract was effective June 28, 1998, with an expiration date of May 28, 1999. For procuring a purchaser of this property, Diane Thompson was entitled to a brokerage fee totaling seven percent of the sale price, with a minimum fee of $2,500, plus a closing fee of $145. The Listing Contract provided for Diane Thompson to receive a commission should the property be sold by and through another broker or agent during the exclusive listing period of April 9, 1999, through October 19, 1999. Diane Thompson procured the exclusive Listing Contract for Di-All Company. Both are identified collectively in the Listing Contract as the "Listing Agent." The District Six Residential Profile Sheet, signed by Metcalfe on October 19, 1998, extended the exclusive Listing Contract's original expiration date from October 19, 1998, to October 19, 1999. Initially unknown to Diane Thompson and at some time after execution of the exclusive Listing Contract, Metcalfe granted power of attorney to sell her waterfront residential property to her daughter, Pam Houle. Through that power of attorney, Pam Houle contracted with another broker and eventually sold Metcalfe's waterfront property. Because of that sale, Diane Thompson was not paid the Listing Agent's commission as provided for in her exclusive Listing Contract with Metcalfe. Attempts by Diane Thompson to resolve this dispute with Metcalfe, with Pam Houle, and with Pam Houle's attorney failed. At some time in June of 1998, Julie Johnson and a male friend flew from New Hampshire to Florida. The intent and purposes for their trip to Florida included looking for home sites and business sites as potential purchases. During her initial visit to Florida and on or about June 28, 1998, Julie Johnson appeared at Diane Thompson's home/office in response to Diane Thompson's media advertisements listing Metcalfe's waterfront property for sale. Responding to Julie Johnson's interest as a potential buyer of waterfront properties, Diane Thompson drove Julie Johnson to 2123 Cedar River, Dunedin, Florida, Metcalfe's waterfront residential villa. After showing Julie Johnson this property and after Julie Johnson's inspection of this residence, Diane Thompson drove Julie Johnson back to her office. At her office, Diane Thompson prepared the offer to purchase Metcalfe's property ("Residential Sale and Purchase Contract") and observed Julie Johnson sign her name to the offer to purchase document. Thereafter, and for the purpose of presenting Julie Johnson's offer to purchase to Metcalfe and/or to Metcalfe's agents for consideration, Diane Thompson made many attempts to contact Metcalfe, to contact Pam Houle, and to contact Pam Houle's attorney. Diane Thompson received no response from Metcalfe, no response from Pam Houle, and no response from Pam Houle's attorney. Because of Diane Thompson's lack of success to make contact with Metcalfe or her agents for the purpose of presenting Julie Johnson's offer to purchase, She did not request that Julie Johnson pay the $1,000 deposit, identified on the offer to purchase contract as the "Purchase Price (a)." Following her failure to make contact with Metcalfe, Diane Thompson introduced Julie Johnson to Barbara Larkins, a friend and real estate broker, who also listed waterfront properties for sale. At some period in 1999, Diane Thompson placed an advertisement for an Independent Contractor (licensed real estate person) in the local media. During the 1999 period when Diane Thompson's advertisement was in the media, Julie Johnson was present in Florida. Julie Johnson became aware of Diane Thompson's advertisement for an Independent Contractor and personally responded to the advertisement notice. Julie Johnson's response to Diane Thompson's advertisement was the second meeting of Diane Thompson and Julie Johnson. In October of 1999, Julie Johnson secured her Florida real estate license. On December 21, 1999, Julie Johnson signed an Independent Contractor agreement with Diane Thompson. Diane Thompson personally observed Julie Johnson sign her name to the Independent Contractor agreement. Julie Johnson signed her Florida driver's license, and a copy thereof was admitted into evidence establishing the fact that Julie Johnson's signature on the two documents and her signature on her Florida driver's license are not dissimilar. The waterfront property owned by Metcalfe, which Diane Thompson, as the Listing Broker for Di-All Company, had a Listing Contract for the exclusive right to procure a purchaser for Metcalfe's resident, was sold by and through another licensed real estate broker. When she became aware of that sale, Diane Thompson sought the brokerage commission as provided in her exclusive Listing Contract. Unable to resolve her dispute with Metcalfe, Diane Thompson filed a lawsuit in Pinellas County naming Metcalfe as defendant. During that circuit court proceeding, counsel for Diane Thompson proffered Diane Thompson's April 9, 1999, Residential Sale and Purchase Contract signed by Julie Johnson. In opposition to counsel for Diane Thompson's proffer, counsel for Metcalfe proffered Julie Johnson's December 19, 2002, affidavit that stated, in pertinent part: "On April 9, 1999, I was residing and working in Rochester, New Hampshire, while the signature is similar to mine, I do not recall having signed this document and never intended to make an offer to purchase Ms. Metcalfe's home."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent, Diane Thompson, not guilty of the charge brought against her and dismiss the Administrative Complaint filed in this proceeding. DONE AND ENTERED this 5th day of May, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 5th day of May, 2003.
