Findings Of Fact Question six on the application for registration as a real estate salesman which respondent furnished petitioner in November of 1977 asked: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Petitioner's exhibit No 2. Respondent answered this question with the word "No." Question seven (a) on the same form asked: Has any judgement or decree of a court been entered against you in this or any other state, province, district, territory, possession or nation, in which you were charged in the petition, complaint, declaration, answer, counterclaim or other pleading with any fraudulent or dishonest dealing? Petitioner's exhibit No. 2. Respondent answered this question with the word "No." On the basis of this application, petitioner issued certificate of registration No. 0186567 to respondent, effective January 26, 1978. When respondent was seventeen years old, he was arrested for and convicted of breaking and entering in Alachua County, Florida. Respondent had not forgotten these events at the time he filled out the application form, petitioner's exhibit No. 2; he was under the mistaken impression that there was no longer any record of his youthful brush with the law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's registration as a real estate salesman, without prejudice to the filing of a proper application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1978. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 32801 Mr. Roy Douglas Howell Florida American Realty Company 4131 N.E. 13th Street Gainesville, Florida 32601
The Issue The issues to be determined are whether Respondent violated sections 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2011), and Florida Administrative Code Rule 61J2- 14.009, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the state of Florida, pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate having been issued license number 3101946. During the time relevant to this case, Respondent was a sales associate affiliated with Bahia Real Estate ("Bahia"), a brokerage company owned by Raul and Ricardo Aleman, with offices located in Miami, Orlando, and Tampa, Florida. Respondent was employed in Bahia's Miami location. In 2010, Respondent acted as a sales associate on behalf of Michael Perricone for a real estate transaction involving the purchase of a condominium in the Blue Lagoon Towers ("Blue Lagoon") in Miami which was purchased as an investment. Mr. Perricone's sister, Francesca Palmeri, and her husband, Santo Palmeri, were present at the closing where they met Respondent for the first and only time. During the closing, which lasted approximately one hour, the Palmeris indicated to Respondent that they would be interested in making a similar purchase of investment property if another comparable condominium unit became available at Blue Lagoon. The Palmeris had no further interaction with Respondent until he contacted them at their home in Pueblo, Colorado, in 2011 to advise them of the availability of a condominium for sale at Blue Lagoon. On or about October 6, 2011, Respondent faxed a partially completed Bahia form "'AS IS' Residential Contract for Sale and Purchase" to Mrs. Palmeri for the Palmeris to use in making an offer on a condominium unit located at 5077 Northwest Seventh Street, Miami, Florida. Prior to forwarding the document to Mrs. Palmeri, Respondent wrote on the form the property description, the escrow agent name and address, the initial escrow deposit amount and additional deposit, the time for acceptance, the closing date, and listed himself as the "Cooperating Sales Associate" with "Bahia Realty Group, LLC." The Palmeris decided to offer a $125,000.00 purchase price. Respondent directed Mrs. Palmeri to complete the contract and provide a ten percent escrow deposit. Mrs. Palmeri entered a purchase price of $125,000.00, initialed each page, and signed the form as "Buyer." Respondent provided Mrs. Palmeri with instructions on how to wire the funds for the escrow deposit. On October 7, 2011, Mr. Palmeri wired $12,000.00 to J.P. Morgan Chase, which was then deposited in an account for Bonaventure Enterprises, LLC ("Bonaventure").1/ The Palmeris had no knowledge of Bonaventure, but, based upon the representations of Respondent, they understood the money they were asked to wire to the J.P. Morgan Chase account of Bonaventure was an escrow deposit for the property they intended to purchase at Blue Lagoon. The Palmeris had no discussion with Respondent regarding the reason for sending the escrow deposit to Bonaventure. They assumed that Bonaventure was somehow related to the seller or its title company. The condominium unit in question was bank owned; however, the Palmeris were not informed of this. No evidence was presented that Respondent had an ownership interest in Bonaventure. However, Bonaventure is owned by Respondent's brother and sister-in-law. At all times material hereto, Respondent was the managing member of Bonaventure. Bonaventure is not a licensed real estate broker. Bahia does not maintain an escrow account, and its sales associates are authorized to use title companies of their choice for receipt of escrow deposits. Respondent was aware that he was unable to accept the escrow deposit of the Palmeris in his own name, because, as a licensed real estate sales associate, he is prohibited from receiving the money associated with a real estate transaction in the name of anyone other than his broker or employer. In fact, Respondent was disciplined in 2010 for a similar violation.2/ Respondent claims that the Palmeris entrusted him with their $12,000.00 to hold for possible investments, not necessarily related to real estate transaction, and he was doing it as a favor for them as "friends." Respondent contradicted himself by stating his intention in directing the Palmeris to deposit their money into the Bonaventure account was to help them have cash on hand in Florida in order to meet the Blue Lagoon condominium seller's requirements to make the escrow deposit with the seller's title company within 24 hours after an offer was accepted. The Palmeris had no knowledge of the seller's unique restrictions on the escrow money. Further, Respondent's asserted motive in requesting the $12,000.00 to have cash on hand in Florida is undermined by the fact that, if the Palmeris could wire $12,000.00 to Bonaventure's bank account, they could also wire the funds directly to a title company chosen by the selling bank after acceptance of their offer. Shortly after returning the contract to Respondent and sending the escrow deposit, Mrs. Palmeri discussed increasing the purchase price by $1,000.00 for a total of $126,000.00. Based upon the language of the proposed contract, the Palmeris expected a response to their offer within 24 hours. Immediately thereafter, Respondent told the Palmeris that they were "in negotiations." However, almost a month passed before they heard from Respondent regarding the status of the purchase of the condominium. On or about November 4, 2011, Respondent contacted Mrs. Palmeri and stated that he had "good news." He indicated that the seller would be willing to sell the property for a price of $129,500.00. According to Respondent, the seller requested documentation from the Palmeris' bank indicating their ability to pay. Mrs. Palmeri indicated that this was not an acceptable counter-offer. Respondent suggested that he could negotiate a sales price of $129,000.00, but he needed the Palmeris to send an additional $9,000.00 to put into escrow. Mrs. Palmeri told Respondent that she was no longer interested in the property because their maximum offer was $126,000.00. During the same conversation, Mrs. Palmeri asked for the return of her deposit. Respondent expressed agitation that she was retreating from the possible purchase because he had done "so much work." Respondent clearly anticipated he would receive a commission if the deal was consummated. The Palmeris did not get an immediate return of their escrow deposit. Mrs. Palmeri called Respondent repeatedly and received no answer. She also sent an e-mail to J.P. Morgan Chase trying to find out the status of the deposit and received no reply. Mrs. Palmeri again attempted to contact Respondent on November 18, 2011, and left him a message that he needed to call her regarding the deposit. After receiving no response, she contacted Bahia and spoke with Ricardo Aleman. Mrs. Palmeri explained to Aleman that she had signed a real estate contract with Respondent on October 6, 2011. She no longer wanted to pursue this real estate transaction and wanted the escrow deposit returned. Aleman was unaware that Respondent was negotiating a real estate transaction for the Palmeris or had accepted their deposit money. Aleman contacted Respondent who confirmed by email that the Palmeris were no longer interested in purchasing the condominium at Blue Lagoon. Respondent wrote, "After a month of hard work . . . the client decided to drop. It was a little bit problematic. I lost time and money because the offer was already accepted and she had no reason to negotiate." Respondent assured Aleman he would return the deposit to the Palmeris. In accordance with Bahia's policies and procedures, its sales associates are required to complete a deposit form at the time of receipt of funds for escrow. No such receipt was received by Bahia from Respondent with regard to the transaction involving the Palmeris. However, it was not unusual for Bahia not to receive information regarding real estate transactions conducted by their sales associates until the time of closing. After discussing the matter with Aleman, Respondent advised the Palmeris that he could return their money within ten days. Respondent advised Mrs. Palmeri that he would send her two checks for the total amount--one check which she could cash immediately and a second check which would be postdated. In order to get a return of their deposit, Mrs. Palmeri agreed. On or about November 28, 2011, the Palmeris received two checks, each in the amount of $6,000.00, including one postdated for December 16, 2011. These checks were written on the account of Bonaventure and signed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order imposing on Alfonso Miranda an administrative fine in the amount of $6,000.00 and suspending the real estate sales associate license of Alfonso Miranda for a period of two years. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 2nd day of April, 2014.
Findings Of Fact The testimony revealed that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. The application revealed that Defendant Frank Viruet (FREC Progress Docket 2856) was to become the Active Firm Member Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; that Lee Klein was to become President and Director of the company. Testimony shows that Carol Bauman is the wife of Defendant Bernard Bauman (Progress Docket 2857); that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman (FREC Progress Docket 2858) is the son of Bernard Bauman. Subsequent to filing said corporate application For registration with the Commission, evidence reveals that the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that along with each change, a new application For corporate registration was later filed with the commission. It was noted that the stated officers and active firm members broker remain as stated in the initial corporate application For registration. Thus, it can be concluded For all legal purposes that the above corporate entities are one and the same. Count I of the Administrative Complaint filed herein, reveals that according to the certificate filed with the Commission's chairman dated December 3, which was offered into evidence by Plaintiff and admitted, during the period November 1, 1975 to the date of said certificate, i.e., December 3, 1976, which covers all dates material to the complaint herein, no registration was issued to or held by either of said corporations, Land Re-Sale Service, Inc., Noble Realty Corporation or Deed Realty, Inc. This was further confirmed by the testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, who was to have become the active firm member broker For the above entities. Approximately December 2, 1975, Land Re-Sale Service, Inc. entered into a written lease For office premises known as Room 212, Nankin Building, 16499 N.E. 19th Avenue, North Miami Beach, Florida For the period January 1 through December 31, 1976 (A copy of the lease was entered into evidence by stipulation.) The unrebutted testimony of Plaintiff Reagan reveals that he observed during his investigation of this cause a building directory on the ground entrance floor to the Nankin Building displaying the name Noble Realty, Inc., Room 212 and a similar display on the building directory which was located on the second floor. Plaintiff's witness Peter King, a representative of and For Southern Bell Telephone Company testified that on December 27, 1975, three phones were installed in Room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc. and that from January 2 to January 16, approximately 575 calls were made from the stated phones all during evening hours to out-of-state numbers. Jeffrey Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but failed to recall specifically the number of calls nor did he have records to substantiate this fact. Bernard Bauman testified that from such solicitations, approximately 4 listings were obtained accompanied by an advance fee of $375.00 For each listing. When he was advised by the Commission's Investigator that the operation they were conducting was in violation of the licensing law by reason that no registration had been issued to the company and that all who are engaged in real estate activities therein were in violation of the license law (Chapter 475, F.S.) the premises were closed and all real estate activities ceased. This was further confirmed and unrebutted by plaintiff Reagan. As to Count II, the evidence established that, as stated above, the Defendants Bernard and Jeffrey Bauman had solicited real estate sales listings with representations to out-of-state property owners that listings would in fact be published and disseminated to brokers nationwide. Both Jeffrey and Bernard Bauman admitted that their listings were never published or otherwise disseminated to brokers. Bernard Bauman's testimony reveals that no monies received were returned to senders. There is no evidence introduced to show that Defendant Jeffrey Bauman knew, at the time of soliciting, that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation. As to Count III, plaintiff alleges that the above acts as set Forth above established a course of conduct by defendant upon which his revocation or registration should issue.
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
Findings Of Fact Jeralne C. Burt is registered with the Florida Board of Real Estate as a salesperson and was so registered at all times here involved. In the fall of 1977, Barbara Rogers came to Respondent's home seeking to purchase residential real estate and was shown several houses by Respondent. One of these houses she agreed to purchase. When asked how she wanted the contract made out, Barbara Rogers said make the contract in the name of Louise Rogers, her sister. The contract to purchase was prepared and given to Barbara Rogers to have executed. When this contract (Exhibit 1) was returned to Respondent it was signed Louise Rogers as the buyer, but the signature was not witnessed. After being assured that Louise had signed the contract to purchase, Respondent signed as a witness to the previously unwitnessed signature of Louise Rogers. At the time this offer was executed by the buyer, Respondent understood that Barbara Rogers was putting up the money for the cash required over the mortgage. Thereafter, Louise Rogers proceeded to the bank where the necessary documents were executed to qualify for an FHA morgage on the property. At the designated closing date Respondent drove to Barbara Rogers' house where Barbara was picked up and they went to the place Louise worked to pick her up. Louise came out to the car and told Respondent that she couldn't get off work and that Barbara could sign the papers for her. When Respondent said she thought Louise should come to the closing to sign, Louise replied that she and her sister signed each other's names all the time and that it was all riht for Barbara to execute the papers. Respondent and Barbara Rogers proceeded to the closing. No one inquired if Barbara Rogers was Louise Rogers, nor was she ever introduced as Louise Rogers. At the closing Barbara Rogers signed Louise Rogers' name on the various documents presented for signature. Due to the house requiring some repairs the closing was kept in escrow for approximately one week to ten days. During this escrow period the mortgage processor at the Barnett Bank, who had processed the application of Louise Rogers, received a phone call from a woman identifying herself as Louise Rogers inquiring when the closing on the house was to take place. When Louise Rogers said she had not executed any papers for the closing the bank officials quickly re-assembled the parties and this time all documents were executed by the real Louise Rogers. Although Respondent realized Louise Rogers should have signed the documents at closing, because of Louise's insistence that Barbara could sign for her and Respondent's previous experience of signing her grandmother's name for her the past two years of her grandmother's life, Respondent assumed the authorization for Barbara to sign Louise's name had been given.
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
Recommendation The Hearing Officer would recommend that the Florida Real Estate Commission place L. B. Slater on probation for a period of one year for the failure of Slater to properly maintain the records of his escrow account. DONE and ORDERED this 12th day of October, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 L. B. Slater 1940 Harrison Street Hollywood, Florida 33020
The Issue Whether Respondent violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant hereto. Respondent, Richard G. Cash (Cash), has been a licensed Florida real estate broker since 1993. His broker's license number is BK-0267856. Prior to becoming a broker, Cash had been a licensed real estate salesperson since approximately 1973. On or about July 22, 1994, Michael J. Provost, Assistant State Attorney for the Twentieth Judicial Circuit of the State of Florida, charged Cash, by information, with aggravated battery. The charge arose from a domestic dispute involving Cash and his former wife, when she appeared uninvited at his home late one night under the influence of drugs and demanded to take their four year-old daughter. His former wife was considerably taller and heavier than Cash, and a struggle ensued in which Cash hit her with a stun gun. Both Cash and his former wife received injuries as a result of the altercation. On or about December 15, 1994, in the Circuit Court of the Twentieth Judicial Circuit for Collier County, Florida, Cash entered a plea of nolo contendere to Count I of the information, which was aggravated battery, a second degree felony. Adjudication was withheld, and Cash was placed on probation for five years. As a condition of probation, Cash was to pay his former wife $4,000 within 30 days of the sentencing and another $4,000 within 12 months of sentencing. In exchange, the former wife agreed to release Cash from any civil liability arising from the incident. Cash paid the $8,000 to his former wife. Cash did not notify the Florida Real Estate Commission that he had pled nolo contendere to a second degree felony. His explanation for failure to do so was that he understood from his attorney that because adjudication had been withheld, he had not been convicted of a crime. On or about January 16, 1998, a warrant was issued for Cash for violation of probation for having shotguns and handguns at his home without first obtaining consent from his probation officer. On April 17, 1998, Cash pled guilty to violation of probation. He was adjudicated guilty of violating probation and aggravated battery, his probation was revoked, and he was sentenced to three years, seven months, and fifteen days with credit for fifteen days already served.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding that Richard G. Cash violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and that his broker's license be suspended for one year or until he is released from the custody of the Florida Department of Corrections, whichever occurs first. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of September, 1999. COPIES FURNISHED: Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Richard G. Cash Fort Pierce CCC 1203 Bell Avenue Fort Pierce, Florida 34982
Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
The Issue Whether the Respondent's Florida real estate license should be disciplined because the Respondent was guilty of false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent is guilty of operating Bellwether Developments, Inc. as a broker, without holding a valid license as a broker in violation of Subsection 475.25(1)(a), Florida Statutes. Whether the Respondent is guilty of failure to account or deliver a share of a commission in violation of Subsection 475.25(1)(d)1, Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. The Respondent, Joseph C. McAuliffe, is now and was at all times material hereto a licensed real estate broker in the State of Florida. He was issued license number 0260690 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker percentBellwether Realty, 526-A Emmett Street, Kissimmee, Florida 34741. On January 9, 1990, and August 9, 1990, Respondent in his own capacity and as the chairman and secretary of Bellwether Development, Inc. (not licensed) entered into written contracts to sell four lots to Jerry P. and Kimberly M. Wray. Pursuant to addendum II of the contracts and the agreement dated January 25, 1990, the Respondent agreed to resell the lots within one year at minimum prices of $16,000; provide the buyers with reimbursement for the total closing cost of $689.08 on three lots; and reimburse the buyers for the monthly payments and any other ordinary and necessary expenses related to the lots. Additionally, if no sale were made by Bellwether, the Respondents agreed to buy back the lots and to provide the buyers a 25 percent return on their investment. The Respondent breached the contracts and the January 25, 1990 agreement by failing to sell the lots or repurchase the lots in accordance with the written agreement. Afterward the buyers lost title to the lots as a result of actions in foreclosure. On February 26, 1992, the buyers filed a civil complaint against the Respondent and Bellwether Development, Inc. based, inter alia, on breach of contract, fraud, constructive fraud, and misrepresentation. On July 14, 1993, the Circuit Court in St. Lucie County entered a judgment against the Respondent individually and as an officer of Bellwether Development, Inc. for damages of $67,542.70. The Respondent has failed to satisfy the $67,542.70 judgment or to otherwise pay the money claimed by the buyers, and said debt remains outstanding. Beginning October, 1987 through January, 1989, the Respondent registered Bellwether Realty, Inc., Bellwether Management, Inc. and Bellwether Development, Inc. with the Secretary of State. On October 14, 1987, and on January 18, 1989, Respondent registered Bellwether Realty, Inc. and Bellwether Management, Inc. with the Petitioner. According to Petitioner's official records Respondent maintained a licensed office located at 526A Emmett Street, Kissimmee, F lorida for Bellwether Realty, Inc. and a licensed office located at 200 Albany Avenue, Stuart, Florida for Bellwether Management, Inc. On or about October 9, 1992, the Secretary of State involuntarily dissolved Bellwether Realty, Inc. and Bellwether Development, Inc. for failure to file an annual report. The Respondent was an officer of both corporations. The Respondent operated Bellwether Development, Inc. as a brokerage without a valid license. In late 1990, Annkarol Cemer was employed through Bellwether Realty, Inc. to solicit and negotiate sales contracts. On August 31, 1990, the Respondent, in dissolving that relationship, agreed to pay Annkarol Cemer $4,647.50 in real estate sales commission and $1,000 vacation pay by December 31, 1990. After December 31, 1990, Annkarol Cemer demanded the payment of the $4,647.50 in commissions owed and $1,000 in vacation pay. Respondent received and kept those commissions and refused to share the commission with Cemer. On February 25, 1993, Cemer obtained a Final Judgment in the County Court of St. Lucie County, Florida in the amount of $6,422.60 against Respondent individually and Bellwether. Said judgment remains outstanding.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondent be found guilty of violating the aforementioned statutes, as charged in the Administrative Complaint, and that his real estate license be suspended for two years. It is further RECOMMENDED that Respondent McAuliffe be fined $1,000.00, payable within 30 days of the entry of a final order, and such other and further conditions as the Commission deems just and reasonable. DONE AND ORDERED this 15th day of November, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-17. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Joseph C. McAuliffe, Jr. 3846 S.W. Savoy Drive Palm City, Florida 33990 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0702
