Findings Of Fact John M. Stroud is a registered real estate saleman holding registration number 0172065 issued the Florida Real Estate Commission. On December 17, 1976, John M. Stroud was arrested for burglary and committed to the custody of the sheriff of Brevard County for the offense of burglary. On December 15, 1976, Stroud had his completed application notarized by R. Jack Simpson. Stroud's application was initially received by the Florida Real Estate Commission on January 5, 1977, and was returned to Stroud because he had not enclosed the fee required. It was resubmitted with the fee and received by the Florida Real Estate Commission on January 14, 1977.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the registration of John M. Stroud be revoked. DONE and ENTERED this 9th day of December, 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1977. COPIES FURNISHED: David T. Young, Esquire 1197 So. U.S. Highway 1 P.O. Box 563 Rockledge, Florida 32955 Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue Did the Respondent, Howard Klahr, fail to deliver or communicate appraisals of properties located at 5821 Southwest 20th Street, Miami, Florida and 2761-63 Southwest 31 Place, Miami, Florida 33133? Did Respondent, Howard Klahr, commit or make fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in his business relationship with Jane Asorey. What is the proper discipline, if any, to be imposed on Respondent, Howard Klahr (Mr. Klahr)?
Findings Of Fact Respondent, Howard Klahr, is a Florida state certified general real estate appraiser trading as Easthill Valuation and Consulting. He holds license number RZ-2678 and has since August 2003. On January 7, 2007, Jane Asorey, now Jane Zuleta, met with Mr. Klahr and engaged him to provide appraisal evaluations of two properties and to provide expert witness and consulting services for Ms. Asorey’s dissolution of marriage case. One property was the marital home, a single family residence located at 5821 Southwest 20th Street, Miami, Florida. The other property was a duplex located at 2761-2763 Southwest 31st Place, Miami, Florida. The duplex appraisal evaluation was to be “retrospective” and evaluate the worth of the duplex in 1991, 1999, and 2005. The appraisal evaluation of the single family residence was to be for the value in 2005. The evaluations were also to include a review of appraisals prepared by others. Ms. Asorey paid Mr. Klahr a retainer of $1,000.00 for the appraisal evaluation and services on November 7, 2007, including a $500.00 charge for the appraisal evaluation. Ms. Asorey made the check out to Mr. Klahr’s company, Easthill Valuation and Consulting. Mr. Klahr accepted the payment and cashed Ms. Asorey’s check. In a November 5, 2007, e-mail, Ms. Asorey provided Mr. Klahr the telephone number and e-mail address for her attorney. That November 5, 2007, e-mail explained that the work was for dissolution of marriage trial scheduled for December 14, 2007. Mr. Klahr and Ms. Asorey did not enter into a written engagement agreement. Despite repeated efforts by Ms. Asorey to obtain the evaluations, Mr. Klahr never provided her or her attorney the appraisal evaluation he agreed to provide and for which he had been paid. Mr. Klahr attended the deposition of an appraiser in the legal proceeding. Ms. Asorey paid him an additional $750.00 for that service. Ms. Asorey spoke to Mr. Klahr on December 20, 2007, and reminded him of the need for his report and a December 28, 2007, deadline for filing the evaluation in her case. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey missed exhibit deadlines in her case and had to continue the trial. On January 2, 2008, Ms. Asorey sent Mr. Klahr an e- mail importuning him to call her, advising him of her repeated efforts to reach him by telephone since December 20, 2007, and emphasizing the urgent need for the report which was overdue. There is no evidence that Mr. Klahr responded to that e-mail. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey had to engage and pay another appraiser to provide the evaluations. On July 26, 2008, the Department advised Mr. Klahr of its investigation and provided him a copy of the complaint. The complaint specified that Mr. Klahr had not provided the appraisal reports and described Ms. Asorey’s efforts to communicate with him. Bernardo Yepes, the Department Investigator, spoke to Mr. Klahr October 15, 2008. Mr. Klahr stated that he had sent the DBPR documents responding to the complaint. Mr. Yepes advised Mr. Klahr that the Department had not received the documents. He asked Mr. Klahr to send them by facsimile transmission. Mr. Klahr did not send the responsive documents to the DBPR by facsimile transmission or any other means. The first time that Mr. Klahr provided any person copies of the appraisal reports that he maintains he prepared was on December 15, 2009; that was the night before the final hearing when Mr. Klahr submitted them to the Clerk of the Division of Administrative Hearings and to the DBPR attorney. Mr. Klahr held a real estate license in 2002 and 2003. He was disciplined for violations of real estate licensing laws in 2002 or 2003. Mr. Klahr had a previous complaint, similar to the complaint in this matter, filed against him. It was dismissed after an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Business and Professional Regulation, Division of Real Estate enter a final order that: Dismisses Count III; Finds that Mr. Klahr violated 475.624(2), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Finds that Mr. Klahr violated Section 475.624 (16), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Makes the terms of probation and periods of suspension concurrent with the probation beginning after the period of suspension concludes; and Requires Mr. Klahr to pay Jane Zuleta $1,000.00 within 30 days of the date of the final order. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2010.
Findings Of Fact Respondent Donald E. Swagler is now and was at all times material a licensed real estate broker or broker/salesman in the State of Florida, having been issued license number 0139756, in accordance with Chapter 475, Florida Statutes. At all times alleged in the Administrative Complaint, respondent Donald Swagler was licensed and operating as a qualifying broker for and an officer of respondent Swagler Realty, Inc., which is now and was at all times material a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0169035, in accordance with Chapter 475, Florida Statutes. At all times material, Fern Z. Taylor was a licensed real estate broker with an office in Bonita Springs, approximately a twenty-minute drive south from the offices of Swagler Realty Company in Ft. Myers. On April 10, 1980, Andrew W. Kuchmaner was working part-time as a licensed real estate salesman in the employ (as that term is defined in Section 475.01(2), Florida Statutes) of Swagler Realty Company. Kuchmaner was a new salesman and had not yet had occasion to present a buyer's purchase offer to a client seller. During the early months of 1980, Kuchmaner was also working in the employ of, and receiving a salary from, Jim Walter Homes Company. Philip R. and Susan B. Workman first met Kuchmaner in January or February 1980 while visiting a Jim Walter's Homes sales office in Ft. Myers where he was working in his capacity as a Jim Walter Homes salesman. Kuchmaner advised the Workmans to find and purchase a lot for the Jim Walter home they had selected, and then they could purchase the Jim Walter home. Jim Walter Homes Company requires lot ownership prior to building one of their homes. Prior to selecting a lot, the Workmans had already decided on the Jim Walter home they were going to purchase, and Kuchmaner was going to do the paperwork for Jim Walter. Throughout the first quarter of 1980, the Workmans searched for a lot on which to construct their home in the Bonita Springs area of southern Lee County. During their search, the Workmans came upon a vacant lot with a sign saying it was for sale by Fern Z. Taylor. Upon seeing her real estate for sale sign, the Workmans went to Fern Taylor's office to inquire about the property and seek her assistance in their purchase of a lot in the Bonita Springs area. Fern Taylor advised the Workmans that, in addition to the lot they had already seen bearing her sign, she had Dust that morning listed and had for sale another lot in the Bonita Springs area which they would be interested in seeing. Earlier that same morning, Taylor took a long distance telephone call from a Charles A. Bennett, a resident of Arizona. Bennett said he had a lot he wanted to sell and gave Taylor the price ($7,000) and a description--Lot 20, Block E, Rosemary Park No. 2, in Bonita Springs. Bennett had not seen the property in some time and gave no landmarks or street address for Taylor's guidance. Back in 1925, Rosemary Park No. 2 was subdivided into eight blocks of 24 140' x 50' lots each and two larger blocks containing 16 larger 162' x 300' lots each. One of the smaller lots bore the legal description: "Lot 20, Block E of Rosemary Park No. 2 according to the Plat thereof recorded in Plat Book 6 at Page 30, of the Public Records of Lee County. This is the lot Bennett owned and was trying to sell. It is located on First Street. In 1926, Rosemary Park No. 2 was re-subdivided. The two larger blocks of the prior subdivision were re-subdivided into eight blocks of 24 140' x 50' lots each. Unfortunately, in a stroke of singular lack of vision, the new blocks and lots were designated with the same letters and numbers already assigned to the smaller blocks and lots in the original 1925 subdivision. As a result, there is another lot in Rosemary Park No. 2 designated as Lot 20, Block E: Lot 20, Block E, Rosemary Park, resubdivision of the East 1/2 of No. 2, according to the plat thereof, as recorded in Plat Book 8, Page 32, in the Public Records of Lee County, Florida. This other Lot 20, Block E, is owned by the Fyfes of Maine and is on Fifth Street. Taylor, who was quite busy, quickly checked a plat book in her office to locate the lot and the tax rolls to attempt far to verify Bennett's ownership and left to put her sign on the lot she thought Bennett owned and was trying to sell. Through a combination of the confusing legal description, the incomplete description and paucity of information Bennett gave Taylor, and Taylor's admitted negligence, Taylor put her for sale sign on the Fyfes' lot on Fifth Street instead of on Bennett's lot on First Street. Taylor had no listing agreement with the Fyfes, and the Fyfes' property was not for sale. Fern Taylor drew a map for the Workmans providing them with directions to this purportedly newly listed lot on which she had placed her "For Sale" sign. In reliance on Fern Taylor's map and representations as to her listing agreement, the Workmans drove to the Fifth Street lot and viewed the property as well as Fern Taylor's "For Sale" sign. Approximately one week after seeing the Fifth Street lot, the Workmans summoned Andrew Kuchmaner to Bonita Springs to view the lot and give them his opinion as to how the Jim Walter home they had previously selected would sit on the lot. The Workmans had their minds pretty well made up that they wanted to purchase the Fifth Street lot before summoning Kuchmaner. Kuchmaner never took the Workmans to any property but, upon their request, traveled to Bonita Springs to meet them and was thereupon shown the Fifth Street lot. While viewing the Fifth Street lot, Kuchmaner advised the Workmans that the Jim Walter's home they had selected would sit nicely on that lot. He also told the Workmans for the first time that he had a real estate license and would be glad to help them out with placing an offer for the lot on their behalf. The Workmans used Kuchmaner to make their $6,000 offer on the lot to save time because it was late in the afternoon and they lived in North Ft. Myers. When Fern Taylor first met Kuchmaner, he had been represented to her by the Workmans as a Jim Walter salesman. Kuchmaner went to Taylor's office and requested she prepare the contract because he would have to go all the way back to Ft. Myers to write it up. Taylor provided Kuchmaner with the legal description "Lot 20, Block E, Rosemary Park #2" and advised him he would have to write his own contract. Kuchmaner also proposed to Taylor that they not tell Swagler or Swagler Realty about the sale so they could divide Swagler's quarter of the 10 percent commission ($150 of the total $600 commission). Taylor refused and told Swagler what had happened. Swagler had an angry confrontation with Kuchmaner and was about to fire him, but Kuchmaner begged for a second chance and promised not to try to cut Swagler out of a commission again. Swagler relented and kept Kuchmaner on as a salesman. Kuchmaner filled out a contract on a Swagler Realty form and brought it to Donald Swagler for his review. He advised Swagler that he had gotten the legal description from Fern Taylor and had been to see the property. Swagler generally does not sell property in the Bonita Springs area and is not familiar with the area. He relied on Taylor to provide an accurate legal description of the property being sold. Kuchmaner hand delivered the contract offering to purchase the Bennett parcel to Taylor. Taylor checked the contract before she sent it to Bennett to see that the legal was the same that she had, and it was. She also checked it again when it was sent back from Bennett. Fern Taylor had received and checked the contract, title insurance binder, seller's closing statement and a copy of the warranty deed from Bennett to Workman prior to the closing The Workmans had the property they thought they were purchasing surveyed by William R. Allen, a registered and licensed land surveyor. He received the request to survey the property from Susan Workman. Over the phone, she advised Mr. Allen she had purchased a lot in Rosemary Park, Specifically lot far 20, block E. Mr. Allen informed Mrs. Workman that there are two Block E's in Rosemary Park and that they should be careful. He inquired as to which street she had purchased property on and was told, "We're on Fifth Street." Allen surveyed the Fifth Street lot and certified his survery, using the actual legal description of the Fifth Street (Fyfes') lot. Allen never saw any document with the legal description of the Bennett lot. Fern Taylor did not know that the Workmans had ordered a survey and did not see a copy of the survey until well after the closing. Although she attended the closing, she saw no discrepancies among the documents cursorily reviewed at the closing. Neither did the Workmans or the closing agent. The evidence was not clear whether there was a copy of the survey among the documents at the closing. The lender (Jim Walter Homes) and the title insurance company got a copy of the survey before closing. Neither of their professionals noticed that the legal description on the survey (the Fyfe lot) did not match the legal description on the deed and other documents (the Bennett lot). When a real estate broker has placed his sign ("For Sale") on a parcel of property, it is a reasonable conclusion that he is authorized to sell that parcel. It is customary for a broker to rely on the listing broker to provide a correct legal description for the property they have listed. At no time before the closing did Swagler or Kuchmaner have reason to suspect that the Workmans were purchasing a parcel of property different from the parcel they believed they were purchasing. Neither Swagler nor Kuchmaner were at the closing of the Workmans' purchase. But their presence would not have made any difference. It is not the real estate broker's or salesman's lob to scrutinize the documents being signed to make sure the legal descriptions on all the documents match (unless he has reason to believe the legal descriptions might be wrong.) He has the right to rely on the other professionals--the listing broker (especially since Fern Taylor was familiar with the Bonita Springs area and Swagler was not), the lender's attorney, the title company, the closing agent and, if any, the surveyor and the buyer's attorney. Fern Taylor and perhaps others were culpably negligent. Swagler and Kuchmaner were not. What happened to the Workmans is not their fault.
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 against respondents, Donald E. Swagler and Swagler Realty Company, in this case. RECOMMENDED this 9th day of February, 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3502 These rulings on proposed findings of fact are made in compliance with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5. Rejected as contrary to facts found. (Kuchmaner did not "solicit" or "obtain" them.) 6.-14. Accepted and incorporated. 15. Rejected as contrary to facts found. (Taylor's "investigation" or "attempt" to ascertain the legal description was deficiently and negligently performed.) 16.-17. Accepted and incorporated. First sentence, rejected as incomplete ("compare the deed" with what?); second sentence, rejected because it was not proved Taylor had access to a copy of the survey before the closing. Rejected as unnecessary and potentially misleading. (A Final Judgment was entered; Taylor paid the portion against her; the other defendants have not paid the portions against them.) Rejected. Swagler Realty Company was a defendant in the case; Donald E. Swagler was not. 21.-24. Accepted and incorporated. Rejected as not proved whether they "failed," "refused" or "neglected." (The fact is that neither has paid the Workmans any money in satisfaction of the portion of the Final Judgment against Swagler Realty Company.) Accepted but unnecessary. B. Respondents' Proposed Findings Of Fact. 1. Accepted but unnecessary. 2.-10. Accepted and incorporated. 11. Accepted but unnecessary. 12.-23. Accepted and incorporated. 24.-28. Accepted and incorporated. 29. Accepted but unnecessary. 30.-36. Accepted but cumulative. 37.-42. Accepted and incorporated, along with additional findings. 43. Accepted but unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Fl 32802 J. Michael Hussey, Esquire 3443 Hancock Bridge Parkway Suite 501 North Ft. Myers, Fl 33903 Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Harold Huff Executive Director Division of Real Estate Post Office Box 1900 Orlando, Fl 32802
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
Findings Of Fact Upon the consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate salesman in the State of Florida, having been issued license number 0118115. At all times relevant to this proceeding, Respondent's license as a real estate salesman was in an inactive status. Respondent was not employed by Kenneth Ray Wagner (Wagner), Ken Wagner Realty or Computer Real Estate Sales, Inc. at any time relevant to this proceeding. At all times relevant to this proceeding, Respondent was employed by the Hernando County Board of Relators. On about July 8, 1985, Elizabeth L. Tucker (Tucker), a licensed real estate salesman in the employ of Ken Wagner Realty, with Kenneth Ray Wagner (Wagner) acting as qualifying broker, obtained a listing agreement from Horace and Sibyl Gordey (Gordeys) as owners to sell certain residential property at an asking price of $48,000.00 in cash, or terms of $5,000.00 down with balance in wrap-around mortgages. After the Gordeys listed the property for sale, Respondent made an offer to purchase the property for $44,000.00. Terms to be: $5,000.00 down, $3,000.00 of which would be in the form of a promissory note with the balance of the down payment in cash, and with Respondent assuming two (2) existing mortgages in the total sum of approximately $39,000.00, with closing to be on October 22, 1985. After receiving the Respondent's offer, the Gordeys requested that Tucker offer the subject property to Ed and Joy Kimball (Kimballs), the tenants in possession, for the purchase price of $44,000.00, consisting of $5,000.00 down plus the Kimballs assuming the payment of the existing mortgages of approximately $39,000.00. Tucker advised the Gordeys not to make this offer to the Kimballs but to make the original offer of $48,000.00 and let the Kimballs make a counteroffer. The Gordeys rejected this advice. Tucker did not make the offer as instructed by the Gordeys but, as instructed by Wagner, made the $48,000.00 offer which was rejected by the Kimballs. Upon being advised by Tucker that the Kimballs had rejected their offer (thinking that it was the $44,000.00 offer that had been rejected), the Gordeys entered into a contract for the sale of the property with the Respondent. The contract entered into between the Gordeys and the Respondent was an amended version of the Respondent's original offer. The contract was a six (6) months lease with option to purchase, providing for lease payments of $300.00 per month that were not to apply toward the purchase price. The purchase price being $44,000.00, with a $5,000.00 down payment and Respondent assuming the payment of the two (2) existing mortgages in the approximate amount of $39,000.00. The down payment was represented by two (2) promissory notes made payable to the Gordeys for the total amount of $5,000.00, due and payable on March 22, 1986, at closing. Respondent was neither involved in obtaining the listing agreement from the Gordey's nor had any knowledge of any conversations between Tucker and the Gordeys or Tucker and Wagner concerning the listing agreement or the offer to be made to the Kimballs by Tucker, prior to entering into the contract for lease and purchase of the Gordeys' property. The contract for the sale of the property did not close on March 22, 1986 as anticipated, or at any time subsequent to that date. The failure of the contract to close was due to a misunderstanding of a poorly drafted contract by both parties. The misunderstanding of the contract by the parties, Respondent's failure to timely pay rent, the return of the two (2) checks by the bank for insufficient funds given to the Gordeys by Respondent, and Respondent's refusal to vacate the premises after notice to vacate was served on December 24, 1985 by the Gordeys resulted in civil litigation being filed and a judgment being entered against Respondent to vacate the premises, and later a monetary award of $4,800.45 plus costs of $322.50 which the parties had agreed upon prior to the entry of the final judgment. The final judgment merged all claims, including both the Gordeys' and the Respondent's. Before the final judgment was entered, the Respondent had paid into the registry of the court the sum of $1,800.45 which was applied against the judgment. This final judgment has not been satisfied by the Respondent. Although Wagner visited the premises from time to time, only the Respondent and her son resided in the premises. There is no evidence that Respondent entered into the transaction with any dishonest or illicit intent, or with the desire to misrepresent any material fact to the Gordeys. There is no evidence that Respondent intended to defraud the Gordeys when she gave them the checks on insufficient funds, or when she failed to timely pay the rent. There was a legitimate disagreement under the contract.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the demeanor and candor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein as it pertains to the Respondent, Vicki Lynne Burke. Respectfully submitted and entered this 17th day of June, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5435 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as being a conclusion of law. Adopted in Finding of Fact 1 and 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5 with the exception of the date of August, 1985 which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 7 with the exception of the amount of $41,808.88 which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 7 but clarified. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7 but clarified. Adopted in Finding of Fact 8. 10.. Adopted in Finding of Fact 8 with the exception of the closing date which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 12. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 12 but clarified to show Respondent rather than Respondents. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12 but clarified to show that only Respondent, Vicki Lynne Burke refused to vacate since Wagner was not residing on the premises. 18-19. Adopted in Finding of Fact 12 but clarified. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not have a paragraph numbered 1. Adopted in Finding of Fact 1 and 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9. 7-8. Rejected as not being a Finding of Fact 9. Adopted in Finding of Fact 6 but clarified. 10-11. Adopted in Finding of Fact 8. Rejected as being immaterial and irrelevant. Rejected as not being supported by substantial competent in the record. Adopted in Finding of Fact 11 but clarified. Adopted in Finding of Fact 13. 16-19. Adopted in Finding of Fact 12. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Vicki Lynne Burke, Pro Se 9039 Selph Road Lakeland, Florida 33809 Darlene F. Keller, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue Whether J.C. Hoffman violated the provisions of Section 475.25(1)(a) and Section 475.25(2), Florida Statutes.
Findings Of Fact J. C. Hoffman also known as Jean Hoffman was a registered real estate salesman whose certificate expired September 30, 1974. On March 31, 1975, Hoffman reapplied and was recertified by the Florida Real Estate Commission. During the intervening period, Hoffman continued to be registered by the Commission. In late 1974, Jean Hoffman showed David W. Jarrett two lots which Jarrett subsequently offered to purchase. Jarrett gave Hoffman $1,500 as a deposit receipt on this transaction in two checks, one for $300 and the other for $1,200. These checks were received into evidence as Exhibit 2. The contract entered into by Jarrett was received into evidence as Exhibit 1. Because Hoffman was not present at the hearing, Jarrett identified a picture of Hoffman taken from the files of the Florida Real Estate Commission as the individual who he had known as Hoffman. This picture was received into evidence as Exhibit 4. After entering into this transaction, Jarrett waited some time and when a closing did not take place, attempted to contact Hoffman. He was unable to contact Hoffman and unable to obtain the return of his $1,500. Jarrett also identified a letter from Barbara E. Green, the owner of the property, which he had received in reply to a letter to her concerning this transaction. This letter was received as Exhibit 3, and indicates that Green had rejected the offer. All Jarrett's efforts to obtain return of his money from Hoffman failed and the money and Hoffman have disappeared.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of J. C. Hoffman also known as Jean Hoffman. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 J. C. Hoffman % Patrick N. O'Keef Dist. Road 5-7837 and N. Hwy 452 Lake Yale Village Leesburg, Florida 32748
Findings Of Fact Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Respondent Shankar S. Agarwal is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0312860. The last license issued was as a broker. Respondent Super Realty, Inc., is now and was at all times material hereto a licensed real estate corporation in the State of Florida having been issued license number 0231630. The last license issued was as a broker located in Hollywood, Florida. At all times material hereto, Respondent Shankar S. Agarwal was licensed and operating as a qualifying broker and officer for Respondent Super Realty, Inc. Respondents advertised for sale by newspaper advertisement a VA repossessed property being a four unit apartment building in Fort Lauderdale, Florida. In April, 1985, Warren and Judith Fieldhouse responded to Respondents' ad, and Respondent Agarwal arranged to meet the Fieldhouses at the property. At the property, the Fieldhouses informed Respondents that they wished to purchase a property as an investment and required that any property purchased by them result in income to them as opposed to resulting in a loss for them. Respondent Agarwal specifically represented to the Fieldhouses that the rental character of the neighborhood had been assessed by the Respondents, that Respondents were qualified to appraise the rental character, and that each unit could be rented for $300 or more per month. Respondent Agarwal further represented that the rent for the property would therefore exceed its expenses. The Fieldhouses decided that they wished to purchase the property based upon Respondents' representations. Respondent Agarwal required the Fieldhouses to give him a check for $1,000 a while still at the property before he would return with them to the office of Super Realty, Inc., to draft a purchase contract. Respondent Agarwal and the Fieldhouses went to Super Realty, Inc., where a purchase contract was drafted by Respondent Agarwal and signed by the Fieldhouses. Respondent Agarwal refused to give to the Fieldhouses a copy of that contract. Respondent Agarwal further advised the Fieldhouses that they were to obtain the required liability insurance on the property from his insurance agency and that they were not to use their own insurance agency. The Fieldhouses refused to comply with Agarwal's direction to them. Changes were subsequently made by Respondents to the Fieldhouses' purchase contract. Although those changes were approved telephonically by the Fieldhouses, Respondents never obtained the Fieldhouses signatures approving the changes in the contract. A closing was scheduled by Respondents at the office of Super Realty, Inc., on May 22, 1985. The Fieldhouses inspected the property just before the closing and found that the property's "as is" condition on the day of closing was worse than its "as is" condition on the day that they first saw it and entered into the contract for the purchase and sale of the property. Appliances were missing, and damage was done to the structure. The Fieldhouses objected to the condition of the property on the date of closing. Yet, the closing began. Respondent Agarwal began handing the Fieldhouses individual documents to sign. When he handed them a required financial disclosure statement, the Fieldhouses realized that the mortgage plus insurance and taxes payments would exceed the rental income which Respondents had represented could be projected from the units, that the amount of payments and other representations initially made by the Respondents were not incorporated into the closing documents, and the rental income for the property would not exceed the property's monthly expenses. The Fieldhouses refused to continue with the closing. They demanded copies of the documents that they had signed, but Respondents refused to give them copies of those documents. They demanded a refund from Respondents of their $1,000 deposit, but Respondents refused to refund their money to them. Although the Fieldhouses had signed a note and mortgage on the property before they refused to continue forward with the closing, they gave Respondents no monies toward the purchase of the property to increase the $1,000 earnest money deposit to the required down payment for the property. Respondents knew that the Fieldhouses did not pay the required cash to close on the property, the additional consideration required under the contracts. After the closing, the Fieldhouses made additional demands on Respondent for the return of their $1,000. Respondents refused to return that money to them and further refused to discuss the matter with them further. Respondents submitted the Fieldhouse closing documents to the Veterans Administration claiming a sales commission due to the Respondents in the amount of $5,740, even though Respondents knew that the sales transaction had never closed. Since the Veterans Administration had experienced difficulties with Respondents' complying with their rules and regulations on previous occasions, the VA took the position that the Respondents were not entitled to a commission since no sale had taken place and that the Respondents should refund to the Fieldhouses their $1,000. Respondents sued the Veterans Administration for a sales commission. At the time that Respondents sued for a commission, they knew that they were entitled to no commission since there was no sale. When the Veterans Administration filed an Answer to Respondents' Complaint indicating that it intended to fully defend Respondents' false claim, Respondents voluntarily dismissed their litigation against the Veterans Administration. The VA now has possession of the Fieldhouses' $1,000 deposit which it intends to return to the Fieldhouses. Although Mr. Fieldhouse was a licensed real estate salesman during the time period material hereto, he had not actively worked as a real estate salesman. Therefore, the Fieldhouses relied upon the Respondents as licensees to responsively perform the sales transaction and further relied upon Respondents' representations regarding the property's income and expenses. Respondents never advised the Florida Real Estate Commission that demands had been made for the return of the $1,000 which Respondents held in escrow until such time as they voluntarily forwarded the money to the Veterans Administration despite the Fieldhouses' demands for its return to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing Counts V and VI of the Administrative Complaint, finding Respondents guilty of the remaining allegations in the Administrative Complaint, and revoking Respondents' real estate broker licenses. DONE and RECOMMENDED this 21st day of April 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Super Realty, Inc. c/o Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether James F. Robertson signed a false affidavit in violation of Section 475.25(1)(a), Florida Statutes.
Recommendation In making a recommendation in this matter, the Hearing Officer considers the following factors relating to James F. Robertson's fitness to be a registrant of the Florida Real Estate Commission. Robertson admitted that he realizes that he executed a false affidavit. Robertson did not falsify the affidavit with the intent to defraud anyone because he intended to pay all the subcontractors and materialmen and thought that he had the ability to pay them. Robertson pledged his personal assets to the payment of the L & M account print to the lien which indicates his intent to make good the account. Robertson is apparently concerned about the Smith's problem but has not been able to settle the account with L & M. Based on the foregoing findings of fact, conclusions of law, and facts in mitigation, the Hearing Officer would recommend that the registration as real estate broker of James F. Robertson be suspended two years; and further, that this suspension be suspended as long as Robertson makes regular payments on the debt to L & M Builder Supplies, Inc., such that the debt will be liquidated at the end of the two year period and the lien against the Smith's home satisfied. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32303 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Robertson c/o Gernada Realty, Inc. 2007 Parsons Avenue, North Seffner, Florida 33584
