The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27 day of September, 1982.
Findings Of Fact The Respondent is a licensed real estate broker and salesman. In proceedings on January 9, 1981, in the Circuit Court, 17th Judicial Circuit in Case No. 80-8846 CF, and in the absence of the Respondent, Respondent's Counsel first indicated to the judge that he was entering a plea of no contest for the Respondent but changed that plea to one of guilty of misdemeanor trespass (Section 810.08) on the basis of the entry of an adjudication withheld. The court noted the Respondent's authorization of his Counsel to enter the plea. The court withheld adjudication and placed the Respondent on probation for six months, and assessed as a special condition of the probation $150 in court costs and restitution in the amount of $100.
Recommendation The Board has not demonstrated a violation of Section 475.25(1)(f), Florida Statutes, by the Respondent. Therefore, the charges should be dismissed, and no disciplinary action should be taken against Respondent based upon the allegations contained in the Administrative Complaint. DONE and ORDERED this day 4th of June, 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 4th day of June, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 South East Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 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
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 5th day of December, 1989.
Findings Of Fact The Department is the agency charged with the licensing and regulation of real estate salesmen and brokers. At all times material to these proceedings, Respondent Peebles was a licensed real estate broker in Florida, having been issued license number 0396895. The last license issued was placed at 2690 52nd Street North, St. Petersburg, Florida. The home address listed with the Florida Real Estate Commission was Post Office Box 40063, St. Petersburg, Florida. On April 7, 1987, the Respondent entered a plea of guilty to the crime of credit card fraud in the United States District Court Middle District of Florida, Case No. 86-215 Cr- Orl-19. The crime was a felony in that the alleged acts involved the unauthorized use of access devices (credit cards) to obtain items of value aggregating $1,000 or more in a one-year period. The case was in federal court because the offense affected interstate and foreign commerce. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. However, the crime did involve fraudulent or dishonest dealings. Upon acceptance of the Respondent's plea, the court adjudicated the Respondent guilty and sentenced him to three years of imprisonment at Maxwell Air Force Base in a minimum security federal prison. In addition, the Respondent was ordered to make restitution of $60,590.00, and pay court costs. The sentencing occurred on April 7, 1987. A timely appeal from the judgment and sentence was not taken by the Respondent. The Respondent did not notify the Department of his guilty plea and subsequent conviction within the thirty-day period required by Section 475.25(1)(p), Florida Statutes. A Motion for New Trial based upon the ground of newly discovered evidence, was filed by the Respondent in the criminal case on March 1, 1990. The United States District Court, Middle District of Florida, has not ruled on the motion. Mitigation The Respondent does not currently have the financial ability to pay any fines if that penalty were to be imposed upon him in this case. The Respondent failed to notify the Florida Real Estate Commission of his conviction because he was under extreme stress when the conviction occurred and he was incarcerated.
Recommendation Based upon the findings of fact, conclusions of law, and the mitigation presented by the Respondent, it is RECOMMENDED: That the Respondent be found guilty of the allegations in Counts I through IV, which were proved at hearing. That the Respondent's real estate broker's license be revoked for seven years. DONE and ENTERED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0224 The Department's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3, #4 and #5. Accepted. See HO #5. Rejected. See HO #9. Accepted. See HO #7. Rejected. Irrelevant. COPIES FURNISHED: James H. Gillis, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert J. Peeples Post Office Box 40063 St. Petersburg, Florida 33743 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
Findings Of Fact The Respondent, Cluett Realty, Inc., is a licensed corporate real estate broker having been issued license number 0216798 and whose last known address is 4720 Palm Beach Boulevard, Fort Myers, Florida. The Respondent, Ernest H. Cluett II, is a licensed real estate broker having been issued license number 0191613 and at all material times was employed as a licensed real estate broker by Cluett Realty, Inc. In November, 1981, Mary Ann Knopic was shown a home in Cape Coral by the Respondents. She offered the owners $92,500 for the home with a $500.00 earnest money deposit. When the home was sold to another buyer, the Respondents and Knopic agreed that the Respondents would retain the $500.00 and attempt to find another home for the complainant. In December, 1981, the Respondents showed Knopic the Soviero home and Knopic made an offer on the home and secured the offer with an additional $1,500 security deposit. In late February, 1982, the complainant informed the Respondents that she would not close on the Soviero home. The complainant decided not to close because the cost of renovating the home exceeded the original estimate. Under these circumstances, the complainant was willing to lose her $2,000 deposit rather than spend $6,000 to renovate the Soviero home. On June 8, 1982, after the complainant agreed to the February disbursement, she sent the Respondents a letter demanding either a copy of the contract which amended the earnest money amount or a refund of her $1,500. Walter V. Horn, a Respondent, was not properly served and at final hearing the petitioner agreed that he was not a proper party to this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against the Respondents, Cluett Realty, Inc., Ernest H. Cluett II and Walter V. Born. DONE AND ENTERED this 11th day of July, 1984, at Tallahassee, Florida. SHARYN L. SMITH 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 11th day of July, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Legal Section Post Office Box 1900 Orlando, Florida Herbert A. Fried, Esquire 1625 Hendry Street, Suite 103 Fort Myers, Florida 33901 Mr. Walter V. Horn 4732 Dee Prado Boulevard Cape Coral, Florida 33904 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been since December 28, 1989, a licensed real estate salesperson in the State of Florida. He holds license number 0552966. From the time he received his license until April of 1991, Respondent was employed as a salesperson by National Real Estate Corporation (hereinafter referred to as "National"). During this period of time, William Landman was also employed as a salesperson by National and Steven Ruttenberg was National's owner and chief executive officer. National is no longer in existence. It was voluntarily dissolved in 1992. Ruttenberg now owns NFC Realty, Inc. (hereinafter referred to as "NFC"). Before leaving the employ of National, Respondent was involved in a real estate transaction for which he and National were due a commission. Only half ($3,500.00) of the total commission ($7,000.00) had been paid at the time Respondent left the employ of National. Sometime after his departure, while he was employed as a real estate salesperson by his current employer, Spectrum Realty, Inc. (hereinafter referred to as "Spectrum"), Respondent telephoned Michael Glusman to inquire about the unpaid balance of the commission (hereinafter referred to simply as the "commission"). Glusman represented the entity responsible for paying the commission. During their telephone conversation, Respondent told Glusman that he was now employed by Spectrum and no longer associated with National. Glusman, in turn, advised that he would need to have a letter from National authorizing him to pay the commission to Respondent. Following his telephone conversation with Glusman, Respondent spoke with William Landman about the commission. Landman was, at the time, as he still is today, NFC's qualifying broker and Steven Ruttenberg's business partner. Respondent told Landman that he would make the necessary arrangements to secure payment of the commission. Landman did not express any objection to Respondent taking such initiative. On or about May 22, 1992, Respondent drafted, and then typed on a sheet of paper with National's letterhead that he had in his possession, the following letter (hereinafter referred to as the "May 22 letter") to Glusman which purported to be from Ruttenberg: May 22, 1992 MICHAEL GLUSMAN Realty Investors, Inc. 3111 Stirling Road, Suite C-302 Ft. Laud. FL 33312 Dear Michael: With regard to the placement of a customer in WEST BOCA SQUARE, National Real Estate Corp. realizing that Mr. Jay Meitchik of Spectrum Realty, Inc. being the procuring cause will waive its right to the balance of the commission due. Thank you, Steve Ruttenberg, Pres. Respondent signed Ruttenberg's name on the May 22 letter and then mailed the signed letter to Glusman. Respondent did not have, nor did he have reason to believe that he had, permission to sign and send such a letter to Glusman on Ruttenberg's behalf. Glusman received the May 22 letter. After looking at it, he forwarded it to Steven Levin. Levin had "bought out" Glusman and, in so doing, had assumed responsibility for payment of the commission. On or about May 27, 1992, Levin spoke with Landman about the commission and the May 22 letter that Glusman had received concerning the matter. Following his discussion with Levin, Landman told Ruttenberg about the May 22 letter. That same day, Landman and Ruttenberg were faxed a copy of the letter. In early June of 1992, Levin paid the commission, not to Respondent, but to Ruttenberg, who had made known that the May 22 letter was sent without his knowledge and permission and that it did not accurately reflect his position with respect to Respondent's entitlement to the full amount of the commission. Shortly thereafter, Ruttenberg, accompanied by Landman, went to Respondent's office and personally delivered to Respondent his share of the commission. While they were there, they unsuccessfully tried to obtain information from Respondent concerning testimony he was going to give on behalf of two former National employees who had filed a lawsuit against Ruttenberg. 2/ Ruttenberg and Landman also discussed with Respondent the May 22 letter that Respondent had sent to Glusman regarding the commission. Although Ruttenberg and Landman had discussed the possibility of filing a complaint with the Department a short time after learning about the May 22 letter, it was not until after Respondent had given a deposition in the aforementioned civil action that such a complaint was actually filed. 3/ Following its receipt of the complaint, the Department commenced an investigation of the matter. The investigation led to the issuance of the instant Administrative Complaint. Respondent has not been the subject of any other administrative complaints issued by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Florida Real Estate Commission enter a final order finding Respondent guilty of the violation alleged in the Administrative Complaint, suspending his real estate salesperson's license for a period of six months, and fining him in the amount of $1,000.00 payable within 30 days of the date of the entry of the final order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1993. STUART M. LERNER 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 3rd day of November, 1993.
The Issue Whether Respondent engaged in acts and/or conduct amounting to fraud, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction for which his real estate license should be disciplined.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to, inter alia, Chapters 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, John Wilson Claffey, is now and was at times material hereto, a licensed real estate salesperson in Florida, having been issued licensed number 0419730. The last license issued was as a salesperson, c/o Venice Properties and Investments, Inc., 628 Cypress Avenue, Venice, Florida. During 1985, Respondent and Mary Lou Retty (Retty), while Respondent was acting as the licensed general contractor in the employ of Venice Construction Management, Inc., entered into a verbal agreement to build five commercial structures (for Retty) in Venice, Florida. The agreement provided that Respondent would charge Retty actual costs plus a supervisory fee for each building. Respondent built the first two buildings as agreed in keeping with the projections he provided Retty. However, a dispute later arose between Respondent and Retty during construction of the third building about some of the billings and other accounting practices with the end result that Retty suspected that Respondent was overcharging by falsifying invoices and purchasing materials which were used for other projects, but were charged to the building he was erecting for Retty. During 1986, Retty filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit for Sarasota County, Florida. Retty's object was to recover monies that she suspected Respondent had misappropriated and wrongfully charged to her project. On April 25, 1990 and June 28, 1990, Retty obtained two final judgments. The first judgment ordered Respondent to pay Retty $40,263.47 and the second final judgment ordered him to pay her the sum of $10,263.47 for civil theft, attorney fees and court costs. The interest rate for both judgments was 12% per annum. (Petitioner's Exhibits 1-4.) During counsel's preparation and discovery for trial, it became evident that Respondent altered several billing invoices which he sought to collect from Retty. Respondent submitted falsified invoices and charged Retty for materials that he used on other projects. Respondent unsuccessfully appealed the final judgments. To date, Respondent has not paid any of the monies he was ordered to pay in the final judgments referenced herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent engaged in proscribed conduct as alleged and that his real estate license be suspended for seven (7) years. It is further RECOMMENDED that Respondent Claffey pay an administrative fine of $1,000.00 to Petitioner within thirty (30) days of the entry of its Final Order. DONE and ORDERED this 29th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 January, 1993. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John Wilson Claffey 312 Venice Avenue East #126 Venice, Florida 34292 Darlene F. Keller/Executive Director Florida Real Estate Commission Hurston Building-North Tower 400 West Robinson Street Orlando, Florida 32801 1772 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
The Issue The issue is whether Respondent is guilty of obtaining his real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Seeking to become a licensed real estate salesperson, Respondent submitted to Petitioner an application on December 16, 1996. One of the questions on the application form asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . [Bold] If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. [End Bold] Respondent checked "yes," but failed to attach the details or otherwise describe them on the form. As alleged, Respondent pleaded no contest to driving under the influence in July 1991, and he was adjudicated guilty. He was placed on supervised probation for one year and lost his driving privileges for six months. As alleged, Respondent pleaded no contest to the traffic misdemeanor of reckless driving and misdemeanor possession of under 20 grams of marijuana in June 1995. He was adjudicated guilty of reckless driving, and adjudication was withheld as to possession of marijuana. He was fined $630 and court costs for reckless driving. In completing the application, Respondent realized that he would have to supply the details of the criminal offenses, of which he admitted when he checked the "yes" box. However, he set aside the application for a week or two, and, when he picked it up again to finish, he forgot about the need to attach a supplement. He thus sent it in incomplete and with a personal attestation that it was complete. Despite the obvious omission from the application, Petitioner issued Respondent a real estate salesperson's license without requesting further information concerning the criminal offenses. Respondent took the licensing examination on February 17, 1997. Passing the examination, he received his license shortly after it was issued on March 24, 1997. The next contact between the parties was when Respondent received a letter, dated February 25, 1998, from Petitioner noting that the Florida Department of Law Enforcement had informed Petitioner of an arrest for the latter criminal offenses. The letter states: "To clear any ambiguity regarding your 'YES' response to the relevant application question, we request additional information." The letter also requests an explanation regarding Respondent's failure to disclose this information on his application form. The letter concludes that Respondent's application would be held in abeyance until receipt of the requested information. By letter dated March 9, 1998, Respondent explained the circumstances surrounding the latter offenses, saying that he had not disclosed the information on the original application due to embarrassment. The letter does not mention the earlier criminal offense of driving under the influence. Respondent testified at the hearing that he claimed embarrassment because he did not think that it would sound as good to say that he had forgotten about the need to add the supplement to his application. This testimony is credited. It is impossible to infer an affirmative misrepresentation or attempt to conceal in the initial application. Respondent disclosed a criminal offense, and it was abundantly clear on the face of the short application form that he had failed to describe the disclosure, as requested to do so. Perhaps Petitioner's employees missed the box checked "yes" or, finding it, forgot to follow up on the matter. Clearly, though, Respondent sufficiently disclosed the matter to preclude a finding, on these facts, of any misrepresentation or intent to conceal. Respondent's March 9 response to the February 25 letter is a different matter. Although the February 25 letter focuses its inquiry upon the latter criminal offenses and does not request a comprehensive response to the question of criminal offenses, Respondent could have also mentioned the earlier offense. This would have negated any inference whatsoever of an affirmative misrepresentation or intent to conceal in the application or at this later stage. However, even considering the shortcoming of the February 25 response, the facts still do not support the finding, by clear and convincing evidence, that Respondent intentionally concealed the criminal offenses in his application. As to the omission from the February 25 letter as a basis for discipline in itself, the Administrative Complaint does not charge Respondent with anything arising directly out of the contents of his February 25 letter. Likewise, Petitioner's proposed recommended order does not even mention Respondent's February 25 response.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Warren Keith Babb, pro se 2310 Southwest 53rd Street Cape Coral, Florida 33914 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
