Findings Of Fact Respondent is a licensed real estate salesman and held such license at all times material to this proceeding. She was a salesman with Miller, Cowherd and Kerver, Inc. Realtors (MCK) at the time of the transactions relevant to this proceeding. Complainant Loretta Fram listed her home in Ft. Lauderdale with Respondent and utilized her services as realtor in the purchase of a condominium apartment in Plantation. Another member of the MCK firm had previously prepared a contract for Fram to purchase the same condominium unit, but it was not executed. The first condominium contract included a contingency clause that required return of Fram's $5,000 deposit if she did not sell her house prior to the condominium closing. This clause was not included in the contract prepared by Respondent even though Fram told her she could not make the condominium down payment due at closing without the proceeds from the sale of her house. Respondent assured Fram the house would be sold in time or that she would work something out. Just prior to the scheduled condominium closing, Respondent arranged a 90-day "swing loan" for $15,000, since funds from the house sale were not forthcoming. Without this loan, Fram would not have been able to close on the condominium and may have had to forfeit her deposit. The swing loan interest and fees amounted to $2,030. Fram paid this amount in January, 1980, on Respondent's assurance that she would be reimbursed. Respondent reduced such assurance to writing in a document dated January 8, 1980 (Petitioner's Exhibit 6). However, after three years, Fram has not been reimbursed. At the time Fram attempted to move into her condominium unit, she was refused admittance by the condominium association. Respondent has reasonably relied on an acceptance the association issued in conjunction with the initial contract. The association thereafter held a meeting and ratified its earlier decision to accept Fram.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a real estate salesman for a period of three years. DONE and ENTERED this 12th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 12th day of July, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Edward Oddo, Esquire 2660 Northwest 32nd Street Boca Raton, Florida 33432 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire 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
Findings Of Fact Petitioner is the state licensing regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto. During times material, Respondent was a licensed real estate salesman in Florida, having been issued license number 0319604. The last license issued Respondent was as a salesman, c/o Referral Realty Center, Inc. (herein Referral) at 8974 Seminole Boulevard, Seminole, Florida. On December 1, 1988, Respondent entered into a management agreement with Madeira Beach Yacht Club Condominium Association, Inc. (herein Madeira) to serve as property manager. Respondent assumed the property manager position with Madeira in June of 1987, which was formalized by a written agreement in December 1988. While acting as property manager for Madeira, Respondent handled the rental transactions of individual units for owners. In return for her services, Respondent was compensated based on a commission of 10% to 20% of the monthly rental. On at least one occasion, Respondent rented an individual unit for owners for a term greater than one year. Respondent was aware that she was renting the one unit for a term in excess of one year. Respondent signed leases for units belonging to individual owners as the rental agent or representative. Respondent used the commissions that she received to defray operating expenses for her rental business such as cleaning fees for the units and for personal compensation. Respondent maintained a bank account at the First Federal of Largo Savings and Loan Association entitled "Dorothy K. Livingston Rental Account" for her rental business. Deposits to that account were rental monies received from tenants from which disbursements were made to unit owners and the remaining commissions went to Respondent as compensation. The rental account maintained by Respondent was neither an account with her employing real estate broker, nor was it an escrow account. Respondent placed security deposits that she received from tenants in the referenced rental account that she maintained. Respondent did not inform her employing broker of the receipt of security deposits nor did she discuss with her employing broker any of her activities involving rental of units for owners at Madeira. However, there is credible testimony evidencing that her broker was knowledgeable of Respondent's activities relative to her rental of units for owners. During May 1989, Respondent placed her real estate license with Referral Realty Center (Referral) as her employing broker. She did so in order to receive payment for referring prospects to Referral. On or about May 22, 1989, Respondent entered into an independent contractor agreement with Referral. That agreement provided in pertinent part that: Independent contractor agrees that Independent contractor will not list any real estate for sale, exchange, lease or rental... . Independent contractor agrees to refer all prospective clients, customers, buyers and sellers of which Independent contractor becomes aware to the Center... . Independent contractor agrees that so long as this Agreement is in force and effect the Independent contractor will not refer any prospective seller or buyer to another real estate broker... . 9. Independent contractor agrees to act, and to represent that he or she is acting solely as a referral associate of the Center... . While employed by Referral, Respondent also received commissions from individual unit owners at Madeira. During the time when Respondent had her license listed with Referral, she also received commissions from Referral for prospects she generated while renting units for owners and acting as property manager at Madeira. Respondent received a copy of a letter from attorney R. Michael Kennedy, addressed to J.L. Cleghorn of Building Managers International, Inc., dated September 5, 1989. In that letter, attorney Kennedy expressed his opinion that condominium or cooperative managers are exempted from the licensing provisions of Chapter 475, Florida Statutes, and that receipt of a percentage of rental proceeds would not be precluded even if the manager was salaried. The Kennedy letter erroneously states support for attorney Kennedy's opinion by Alexander M. Knight, Chief of the Bureau of Condominiums, and Knight so advised attorney Kennedy of that erroneous support by a subsequent letter to him. It is unclear to what extent Respondent apprised attorney Kennedy as to the specifics of her activities and to what extent she relied on his opinion prior to engaging in her property manager's rental and referral activities. (Petitioner's Exhibit 7.) Respondent did not seek advice from Petitioner as to whether her activities fell within the guidelines of Chapter 475, Florida Statutes. Respondent is familiar with the statutory definitions of a broker and salesman and what activities constitute brokerage and sales activities. During times material, Respondent's employing broker, David Hurd, was a licensed real estate broker in Florida, and the broker of record for Referral for procuring prospects and making referrals of real estate activities. Employment under an independent contractor agreement is considered employment under Chapter 475, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,500.00, issue a written reprimand to her, place her license on probation for a period of one (1) year with the further condition that she complete 60 hours of continuing education. RECOMMENDED this 31st day of May, 1991, 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 31st day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jerry Gottlieb, Esquire GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact At all times relevant hereto, respondent, Ezell Realty, Inc., was a licensed corporate real estate broker having been issued license number 0231943 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Winfield Ezell, Sr., held real estate broker's license number 0309739 issued by petitioner and was the sole qualifying broker and officer of Ezell Realty, Inc. The firm is located at 1512 West Gore Street, Orlando, Florida. Grover Crawford was an acquaintance of Ezell who was interested in purchasing certain rental property on Coretta Way in Orlando, Florida. When he was unable to purchase the property Crawford told Ezell to let him know if anything else became available in that area. Ezell happened to own a rental house at 1121 Coretta Way which he had just purchased several months earlier in a foreclosure proceeding, and the two eventually began discussions concerning a possible sale. At all times relevant thereto, the house was rented to tenants, and Crawford intended the property to remain as investor-owned property rather than owner-occupied property. Ezell initially agreed to sell the property for $70,000 and the two entered into a contract on January 8, 1983, using this sales price. However, the lender's appraisal of the residence came in far below this figure, and the parties eventually agreed on a sales price of $55,450. A second contract for sale and purchaser was executed on June 22, 1983. Although the contract provided that Crawford would pay a cash deposit of $2,300 to be held in escrow by Ezell Realty, none was paid since Ezell was given $2,300 by the tenants of the house to make needed repairs to the property prior to the sale. This arrangement was agreeable with Crawford. The contract also required the seller (Ezell) to pay all closing coats. Therefore, Crawford was not required to pay any "up front" costs in order to buy the property. Under the terms of the second contract, Crawford was to obtain FHA financing on the property in the amount of $53,150. This type of financing is the most desirable from an investor standpoint since the mortgage can be easily transferred to another buyer for a small transfer fee without lender approval. After executing the first contract on January 8, 1983, Ezell and Crawford executed an "Addendum to Contract For Sale and Purchase" on the same date which provided in pertinent part: This contract is for the sole purpose of having the buyer obtain an assumable FHA mortgage for the seller and reconveying title to the seller. The seller hereby irrevocably assumes the said FHA mortgage from the buyer immediately after closing and the buyers hereby agree to that assumption. For this, Crawford was to receive $1,000. The parties agreed that this addendum would apply to the second contract executed on June 22, 1983. At the suggestion of Ezell, Crawford made application for a $53.150 FHA loan with Residential Financial Corporation (RFC) in Maitland, Florida, a lending institution which Ezell had done business with on a number of prior occasions. However, Ezell was not present at any meetings between Crawford and RFC. When Crawford applied for the mortgage, he indicated the property would be used for investment purposes and would not be owner-occupied. For some reason, RFC assumed the property would be owner-occupied and structured the-loan in that manner. Because of this, Crawford's down payment was slightly less than 5% of the value of the property with the remainder being financed by the institution. Had RFC treated the loan as an investor-loan, the down payment would have been increased to around 15%. Neither Crawford or Ezell advised RFC of the Addendum to the contract which required Crawford to reconvey the property to Ezell for $1,000 once the FHA mortgage was obtained. Had RFC known of this it would not have approved the loan. There was no competent evidence that such an agreement was illegal or violated any federal laws or contravened any real estate industry standard or ethical consideration. The loan was eventually approved, and a closing held on September 22, 1983. After closing, Crawford retained the property in his name with Ezell making all payments from the rent proceeds. This was consistent with an oral agreement between the two that such an arrangement would last for an indefinite period as long as the payments were current. When Crawford later received several notices from the lender stating that mortgage payments were in arrears, he hired an attorney and demanded that Ezell fulfill the terms of the Addendum. He also filed a complaint against Ezell with petitioner which precipitated the instant proceeding. After the closing, Ezell had intended for the tenants to assume the mortgage since they had expressed an interest in buying the property. However, such a sale never materialized. In July, 1984, the property was reconveyed to Ezell, and Ezell paid Crawford $1,000 as required by the Addendum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be dismissed, with prejudice. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802 Julius L. Williams, Esq. P. O. Box 2629 Orlando, FL 32802 ================================================================ =
The Issue The issues for determination in this proceeding are whether Respondent violated Section 475.25(1)(b) Florida Statutes, 1/ by committing the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate broker under license number 0478560. The last license issued to Respondent was issued as a broker t/a Concord Financial Realty Co. ("CFR"), 495 E. Semoran Boulevard #115, Casselberry, Florida 32708. Respondent is the sole owner of CFR. CFR carries on regular business activities that include apartment rentals and sales of real estate. On January 31, 1992, Respondent and Mr. Charles Wallman, Respondent's husband, owned all of the stock of C.L. Wallman Associates, Inc ("CWA"). 2/ Respondent's husband owned Concord Financial Services, Inc. ("CFS"). CFS was formed to sell insurance and securities. Respondent and her husband operated CFR, CWA, and CFS out of shared office space. Respondent performed bookkeeping and secretarial duties for CWA and CFS. In January, 1992, Respondent's husband (the "seller") verbally agreed ("agreed") to sell 35 percent of the stock of CFS to Mr. John Topercer (the "purchaser") for $35,000. The seller and purchaser agreed to operate the company as "partners." The sale proceeds were to be invested in the company in which the seller and purchaser were to be partners. The purchaser paid the $35,000 purchase price in five installments from January 31, 1992, through March 12, 1992. During that time, the seller agreed to sell an additional 14 percent of the stock of CFS for an additional $13,000. The purchaser paid the additional $13,000 in three installments from April 14, 1992, through May 13, 1992. In May, 1992, the purchaser and seller agreed to another stock acquisition for $20,000. The seller would merge CFS, CWA, and CFR into a new company to be known as Concord Financial Centre ("CFC"). All of the business activities carried out by the separate companies would be consolidated into CFC. The purchaser would receive 49 percent of the stock of CFC in exchange for his 49 percent stock ownership in CFS. The seller and purchaser would operate CFC as "partners" in the same manner as originally contemplated for CFS. The sale proceeds were to be invested in the company in which the seller and purchaser were to be partners. The purchaser paid $20,000 in five installments from June 2 through June 22, 1992, and tendered his stock in CFS. However, the purchaser never received any stock in CFC. CFC was never formed. The seller never tendered any stock in CFC to the purchaser. The seller used some of the sale proceeds to operate CFS. However, approximately $30,000 of the sale proceeds were misappropriated and used by Respondent and her husband for personal purposes including a down payment on a house and a car. On January 6, 1993, the purchaser filed a civil complaint against Respondent and her husband alleging fraud, recision, and mismanagement of corporate funds. On August 8, 1994, the purchaser received judgment against Respondent and her husband in the amount of $30,000. Respondent and her husband have not satisfied the judgment. Neither has paid any money toward the judgment, and the purchaser has been unable to satisfy the judgment. Respondent knew of the negotiations and business transactions between her husband and Mr. Topercer. Respondent performed the duties of bookkeeper and documented all of the payments made by Mr. Topercer. Respondent was present during some of the discussions between her husband and Mr. Topercer. Respondent agreed to the merger of CFR into CFC. Respondent participated in the misappropriation of the purchase proceeds for her own personal use. When considered in their totality, the acts committed by Respondent constitute fraud and dishonest dealing by trick, scheme, or device within the meaning of Section 475.25(1)(b). Those acts were repeated and continued for more than six months. The amount misappropriated by Respondent is significant. During the three and a half years since June, 1992, Respondent has made no attempt at restitution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b) and revoking Respondent's real estate license. RECOMMENDED this 9th day of January, 1996, in Tallahassee, Florida. DANIEL MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Holly Sanders is licensed by the Department as a real estate broker, having been issued license number 0324563. In June, 1992, Ms. Sanders and Loren L. and Rose Thompson entered into an agreement whereby Ms. Sanders would have the exclusive right to rent an apartment owned by Mr. and Mrs. Thompson. This apartment, unit A-2012 in Brickell Place Condominium, Phase II, was located across the hall from the apartment in which Mr. and Mrs. Thompson resided. Ms. Sanders visited Mr. and Mrs. Thompson periodically to discuss matters relating to the rental, and she grew very fond of Mrs. Thompson. The tenant leasing apartment A-2012 did not intend to renew the lease when it expired in the summer of 1993. Ms. Sanders offered to purchase the apartment for $125,000, a figure which she based on the value of the property used to calculate the ad valorem tax.1 Ms. Sanders prepared a Contract for Sale and Purchase, dated August 16, 1993, reflecting a contract sales price of $125,000, to be paid in cash at closing. Mrs. Thompson retained Richard Olsen, an attorney, to represent her and her husband in the transaction.2 On August 19, 1993, Ms. Sanders, Mr. Olsen, and Mr. and Mrs. Thompson met in the Thompsons' apartment. At the time, both Mr. and Mrs. Thompson were incapacitated. Mrs. Thompson suffered from multiple sclerosis and was in a wheelchair.3 Mr. Thompson was bedridden; he had suffered a stroke and needed full-time care. Both Mr. and Mrs. Thompson are retired attorneys. At the August 19 meeting, Mr. Olsen examined the contract Ms. Sanders had prepared and went over the terms and conditions with Mr. and Mrs. Thompson,4 including the $125,000 contract price and the fact that it was to be a cash transaction. Neither Mr. Thompson nor Mrs. Thompson indicated any dissatisfaction with the terms of the contract. After Mr. Olsen went over the contract, Mr. and Mrs. Thompson and Ms. Sanders signed either four or five originals in his presence. Ms. Sanders gave one duplicate original executed contract to Mr. and Mrs. Thompson5 and one duplicate original to Mr. Olsen. She kept the remaining duplicate original executed contracts. Ms. Sanders did not make any photocopies of the contract. Ms. Sanders was aware that the condominium association had a right of first refusal on the apartment and that she had to be approved by the association in order to purchase the apartment.6 Ms. Sanders personally delivered an application and one of the duplicate original executed contracts showing a contract price of $125,000 to Consuelo Boet, the administrative assistant in the office of Arnold Rabin, the Brickell Place building manager. Ms. Boet did not examine the documents when they were delivered by Ms. Sanders but put them directly into a file containing other applications pending approval. When all of the required documents for apartment A-2012 had been received, Ms. Boet gave them to Mr. Rabin but, again, did not examine the contract. A Certificate of Approval dated October 18, 1993, indicates that the condominium association approved Ms. Sanders as purchaser of the apartment; the contract sales price was not included in this document. Mr. Olsen visited the Thompsons' apartment several times between the time the contract for sale was executed on August 19 and the time the transaction closed on October 20, 1993. The purpose of these visits was to locate the documents relating to Mr. and Mrs. Thompson's purchase of apartment A-2012 in 1988. They had extensive real estate holdings throughout the world, and Mr. Olsen went through many boxes of files trying to locate the title documents needed for the closing. Ms. Sanders was present during each visit Mr. Olsen made to the Thompsons' apartment prior to the closing. During one visit, Mr. Olsen was present when Ms. Sanders asked Mrs. Thompson if she would be willing to accept a $75,000, one-year mortgage on the property. Mr. Olsen discussed this proposal with Mrs. Thompson and explained to Mrs. Thompson that the mortgage Ms. Sanders was proposing would result in her receiving only $50,000 when the transaction closed and then two payments of $50,000 and $25,000, respectively. Mrs. Thompson told him she would accept the mortgage but did not want Ms. Sanders to pay interest. She refused to change her mind even though Mr. Olsen told her that it would not be in her best interest to take a non-interest-bearing note. Chicago Title Company was the closing agent for the transaction, and the closing took place at their offices on October 20, 1993. Mr. Olsen was present at the closing on behalf of the Thompsons, who were not able to attend. At closing, both Mr. Olsen, on behalf of Mr. and Mrs. Thompson, and Ms. Sanders signed the HUD-1 Settlement Statement, which was computed using a purchase price of $125,000. The cash payable to the Thompsons at closing is shown on the settlement statement as $46,289.48, and the statement reflected a purchase money mortgage for $75,000, as well. Ms. Sanders executed a mortgage and note in the amount of $75,000 dated October 20, 1993. These documents were prepared by Mr. Olsen, and he notarized them on October 20. The terms of the mortgage note called for a payment of $50,000 on April 19, 1994, and a payment of $25,000 on October 19, 1994; the note did not bear interest. Mr. Olsen had one original set of the closing documents bound in a legal-sized folder; the documents included an original signed closing statement, a copy of the deed, and a copy of the mortgage and note. He delivered this folder to Mrs. Thompson and explained the documents, specifically going over the closing statement with her. Mrs. Thompson expressed no dissatisfaction with the transaction or the amount of money she received at closing. Mr. Olsen believes that, during the time he represented her, Mrs. Thompson was fully aware that the contract sales price was $125,000 and that she had taken a mortgage instead of all cash. At some point, the association's Certificate of Approval of Ms. Sanders' purchase and a copy of the HUD-l Settlement Statement were placed in the file maintained by the association for apartment A-2012. Ms. Boet does not recall when the documents came into the office or who provided the copy of the settlement statement. She did not examine the documents at the time she placed them in the association file for apartment A-2012. However, when Mr. Rabin reviewed the file some months after the closing, it contained a copy of an HUD-1 Settlement Statement which had obviously been altered in several places to show a contract sales price of $185,0007 and a copy of a Contract for Purchase and Sale showing a contract price of $185,000.8 The file did not contain a duplicate original executed Contract for Sale and Purchase. The greater weight of the evidence in this case supports Ms. Sanders' contentions that the Contract for Sale and Purchase of apartment A-2012 in the Brickell Place Condominium, executed on August 19, 1993, by Loren L. and Rose Thompson, specified a contract sales price of $125,000, to be paid in cash, and that Mrs. Thompson accepted a one-year note and mortgage on the property in the amount of $75,000 and $50,000 in cash in lieu of $125,000 in cash. Furthermore, the uncontradicted evidence establishes that Ms. Sanders delivered a duplicate original executed contract to Ms. Boet as part of her application to the condominium association for approval of her purchase of the apartment. The uncontradicted evidence also establishes that, some months after the October 20, 1993, closing on the apartment, Mr. Rabin reviewed the association's file and found that it contained a copy of a Contract for Sale and Purchase which specified a contract sales price of $185,000 in cash and an HUD-1 Settlement Statement obviously altered to show a contract sales price of $185,000. There is, however, no compelling evidence establishing when the documents were altered or establishing that Ms. Sanders is the person who made the alterations. Therefore, the Department has failed to carry its burden of proving by clear and convincing evidence that Ms. Sanders violated section 475.25(1)(b), Florida Statutes, either with respect to Mr. and Mrs. Thompson or to the Brickell Place Condominium Association.9
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint filed against Holly Sanders. DONE AND ENTERED this 9th day of July, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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, 1996.
Recommendation The Hearing Officer, based upon the foregoing Findings of Fact and Conclusions of Law, recommends that the Real Estate Commission accept the application of Harry A. Yeargin. DONE and ORDERED this 16th day of September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Randy James Schwartz, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 W. O. Birchfield, Esquire 3000 Independent Square Jacksonville, Florida 32202
