The Issue Whether respondent violated sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, by the manner in which she handled the real estate transaction involving the property located at 29 S. Lawsona.
Findings Of Fact Respondent is a licensed real estate salesman and was a licensed real estate salesman at all times relevant to the instant charges. In September 1983, respondent was registered as a real estate salesman with 100 percent Real Estate Incorporated. Robert Sinclair was the qualifying broker for 100 percent Real Estate Incorporated. On or about September 29, 1983, respondent obtained an Offer of Purchase on a home located at 29 S. Lawsona from Linda O'Leary and James T. Bagley along with a check from James T. Bagley in the amount of $500 as earnest money. The resulting contract was entered into evidence as Petitioner's Exhibit 1. On the day the purchasers signed the contract, but after they had signed the contract, the purchasers visited the home and discovered that there appeared to be extensive termite damage. Mr. Bagley was concerned about the termite damage, as was the respondent, and therefore the respondent promised Mr. Bagley that she would hold his check until she could get the termite estimate from Mr. Babcock and check with the termite company to find out how bad the damage was. Although the respondent was able to obtain the termite estimate from Mr. Babcock's office the following day, she was unable to contact the person who had conducted the termite inspection. She also was unable to contact the purchasers. She was unable to contact Mr. Bagley for approximately a week and it was another week before Mr. Bagley went to the house with a contractor to determine how much it would cost to repair the termite damage. The contractor thought that the minimum cost would be $10,000. At that point Mr. Bagley decided that he was no longer interested in the house, and the respondent returned his check. The $500 check was never turned over to Robert Sinclair or 100 percent Realty. Respondent knew she should not have held the check and was aware that by doing so she was, as she stated, "in hot water." However, respondent also believed that the seller had misrepresented the extent of the termite damage and was misinterpreting the terms of the contract. Mr. Sinclair was unaware of the existence of the contract until the end of October, although he had a discussion earlier with the respondent regarding whether an "as is" clause in a contract could override the specific printed provision of the standard contract related to termite infestation. That discussion was obviously related to the contract on the house on Lawsona.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that the respondent is guilty of violating sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, and suspending respondent's license for a period of three (3) months. DONE and ENTERED this 1st day of May, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of May, 1985. COPIES FURNISHED: Harold Huff, Executive Director Department of Professional Regulation P. O. Box 1900 Orlando, Florida 32802 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Ms. Anne Rockafield 713 Woodward Orlando, Florida 32803 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the respondent's license as a real estate broker should be revoked, suspended, or otherwise disciplined because respondent entered a plea of guilty to the offense of unlawful compensation.
Findings Of Fact Respondent is and was at all times pertinent to this proceeding a licensed real estate broker with the State of Florida, holding license number 0166810. On June 18, 1982, an information was filed in the circuit court charging that between the dates of December 10, 1980 and December 1, 1981, the respondent "did corruptly request, solicit, accept or agree to accept money not authorized by law for past, present, or future performance, to wit: by sending business to Don's Alignment Shop, which said ALBERT RONALD HURLBERT did represent as having been within his official discretion in violation of a public duty or in performance of a public duty, in violation of Section 838.016, Florida Statutes." On July 16, 1982, the respondent appeared before Judge Thomas Oakley and entered a plea of guilty to the offense of unlawful compensation as charged in the information. Adjudication of guilt was withheld and respondent was placed on probation for a period of four years. Respondent was given an early release from probation on August 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter an order finding that the respondent has been convicted or found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing and revoking the respondent's real estate license. DONE and ENTERED this 27th day of February, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Mr. Albert R. Hurlbert c/o Hurlbert Realty 8117 Lakeland Street Jacksonville, Florida 32205 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32303 Howard Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802
Findings Of Fact At all times pertinent hereto, Respondent, George R. Gurley, was a registered real estate broker-salesman in the State of Florida operating under License No. 0034797 issued by the Florida Real Estate Commission on April 1, 1979. Mr. Gurley arranged the sale of certain property on Highway 542 in Lakeland, Florida, owned by Lakeland Skyview, Inc., Durward Harrell and Charles J. Ziemba to Joseph D. De Silvestro. This sale was initially arranged in a contract executed on April 5, 1979, by Mr. De Silvestro, as buyer, and Charles J. Ziemba, individually, and Hobart H. Joost, President of Lakeland Skyview, Inc., for the seller. Sale price was to be $70,000 with a $1,000 deposit being held in escrow by R/D Parker Realty Company. A commission of 10 percent ($7,000) was called for in that portion of the contract providing for method of payment, but was not referenced in the brokerage fee portion of the contract at the bottom of the first page thereof. Respondent, Gurley, and two others were listed as witnesses. Thereafter, before this contract was closed, on May 4, 1979, Respondent arranged a resale of the property from Mr. De Silvestro to American Vault Bed Corporation with a purchase price of $90,000 of which, again, $1,000 was to be held in escrow by the R/D Parker Realty Company. This contract made no provision for any real estate commission. This second contract was witnessed as to both buyer and seller by Respondent. The property in question was originally listed with R/D Parker Realty Company on November 10, 1978, by Mr. Joost, President of Lakeland Skyview, Inc., on an exclusive right of sale contract form which was accepted by Mr. Gurley, the Respondent. Because Mr. Joost had worked with Respondent previously and was aware of his reputation, he listed the property with Respondent in preference to another real estate agent. According to Ms. Parker, who ran the real estate company, though the form indicates the listing was an exclusive, it was, in fact, not entered into the multiple listing service. Mr. De Silvestro, the individual who purchased the property in the first transaction, was himself a real estate broker-salesman who was at the time working as office manager for R/D Parker Realty Company. At the time of both transactions, it was the policy of Parker Realty that salesmen working for the company could make two transactions per year in their own names without paying any commission to Parker Realty so lone as Ms. Parker was made aware of it in advance. In the instant case, Parker Realty did not get a share of the commission, nor did Ms. Parker know about either sale at the time. She found out about them in June, 1982, after both Respondent and Mr. De Silvestro had left their association with her firm, in the summer of 1979. Both transactions were closed by mail by Stewart Title Company off Polk County during the period from late May to mid-June, 1979. The buyer's closing statement dated May 29, 1979, for the first sale to Mr. De Silvestro does not reflect a broker's commission. However, a check in the amount of $2,829.51, drawn by Stewart Title of Polk County, Inc., on its escrow account, made payable to Charles J. Ziemba and S. A. Rice, dated June 28, 1979, bears the notation "payment in full for note from George R. Gurley dated June 8, 1978, with interest in full." Both Mr. Gurley and Mr. Ziemba acknowledge that this check was a portion of the $3,500 Mr. Gurley received as commission on the sale to Mr. De Silvestro and which was paid to Mr. Ziemba in fulfillment of a prior existing debt to him. The following day, June 29, 1979, an additional check was drawn on the escrow account of Stewart Title of Polk County, Inc., payable to Randy Gurley in the amount of $670.49, which bears the notation, inter alia, "for balance of realtor's commission." Randy Curley is, in fact, Respondent. Mr. Gurley acknowledged that this figure, which, when added to the amount of the prior mentioned check totals $3,500, was his share of the real estate commission earned on the property in question to Mr. De Silvestro. The balance of the real estate commission of $7,000, in the amount of $3,500, was never paid either to Mr. Gurley or to Parker Realty. No evidence was presented to indicate where that $3,500 went, if, in fact, it was paid at all. Testimony in this area came from Karen Beck, an agent with Stewart Title, who was not, however, the closing agent for this transaction. Her testimony, based on what the actual closing agent told her, and therefore hearsay, leads her to conclude that the "parties," De Silvestro and Gurley, had indicated the commission was to be handled as it was. On June 12, 1979, Stewart Title received a check for $2,000 from R/D Parker Realty Company, which represented the $2,000 paid as deposits into Parker Realty Company's escrow account on the two sales in question. The check for $2,000 was signed by Ms. Parker's son, Richard, who was a partner in R/D Parker Realty and who had authority to execute the check in question. Mr. Parker was not present at the hearing, nor did he testify as to whether he had given Mr. Gurley authority to keep his half of the commission and not forward any of the commission to Parker Realty, the broker. Mr. Gurley at no time was an owner of the property in question, nor did he realize any profit from either sale. His sole compensation came from the commission he received from the sale of the property initially to Mr. De Silvestro. This does not fall within the permitted transactions referred to by Ms. Parker, whereby employees could make two purchases per year without paying commission. Respondent, Gurley, who has held a salesman's license since 1972 and been a broker since 1974, contends he has never, in all those years, done anything in the practice of the real estate profession which would warrant disciplinary action by the Real Estate Commission. He contends that both he and Mr. De Silvestro acted with the knowledge of the broker, R/D Parker Realty; they used office forms; used office witnesses; and the deposit monies placed on both contracts went into the office escrow account. Mr. Gurley contends that the entire transaction was open and aboveboard and that when he acted, he felt he was authorized to do this. Though he contends Ms. Parker's son, Richard, acknowledged that what Gurley was doing was appropriate, Ms. Parker indicates her son denied any knowledge of what Respondent and De Silvestro were doing. On balance, it is found that neither Gurley nor De Silvestro notified Parker Realty, in the form of Ms. Parker or Richard Parker, as to the details of the transaction. Respondent is a minister, has no criminal record, no bad debts and no difficulties with the law of any kind. He applied for a renewal of his license In April, 1982, but has had no notice of denial. The records of the State of Florida submitted pertaining to Respondent's licensure status, however, reflect his licensee as a broker was issued on January 21, 1983, and is effective until September 30, 1984. That would make his license current at the present time.
Recommendation In light of the foregoing, it is, therefore, RECOMMENDED: That Respondent be reprimanded. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of January, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. George R. Gurley 800 East State Road 540A, #106 Lakeland, Florida 33803 Mr. Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the charges against Respondent, Linda N. Phillips, be DISMISSED. DONE and ENTERED this 16th day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of October, 1981.
Findings Of Fact At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker." Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above. DONE and ORDERED this 25th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 25th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard McClain, Esquire 6167 Haddon Road West Palm Beach, Florida 33409
Findings Of Fact Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted. Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence. Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details. Paragraph 6: Rejected as contrary to the greater weight of the evidence. Paragraph 7: Accepted in substance, with additional findings for clarity and completeness. Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence. Findings Proposed by Respondent: All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent. Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details. Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS 816 BROAD STREET JACKSONVILLE, FLORIDA 32202 DARLENE F. KELLER, EXECUTIVE DIRECTOR DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Recommendation The Hearing Officer having found factually that the Respondents did not violate the provisions of Chapter 475 Florida Statutes, as charged, recommends that no action be taken against the registration of any of the Respondents. DONE and ORDERED this 14th day of June, 1976. 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 Spencer Fox, Esquire Suite 107, 9065 Galloway Road Miami, Florida 33176
Findings Of Fact In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case. RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of June, 1986. COPIES FURNISHED: John B. Root, III Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A. 338 N. Magnolia Avenue, Suite D Orlando, Florida 32801 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DEPARTMENT OF BANKING AND FINANCE, Petitioner vs. CASE No. 86-0328 TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision: In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing. DATED this 13th day of May, 1986. JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE Office of the Comptroller GORHAM RUTTER, JR., P.A. 400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801 ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT Telephone: (305) 423-5116 Telephone: (305) 841-7667 TERRY E. CHRISTENSEN, Respondent EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0024293 TERRY E. CHRISTENSEN, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, CASE NO. 0021931 vs. TEC REALTY, INC. AND TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case. STIPULATED FACTS AND CONCLUSIONS OF LAW Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505. Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo". Respondents admit that they are subject to the provisions of Chapters 455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto). Respondents admit that the Administrative Complaint contains no disputed issues of material fact. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act. STIPULATED DISPOSITION Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation. SIGNED this day of , 1983. (filed document undated) SWORN TO AND SUBSCRIBED Respondents before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC Realty, Inc. Notary Public My Commission Expires: Notary Public, State of Florida My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc. Approved this 21st day of June, 1983. John Huskins, Staff Attorney Department of Professional Regulation Legal Section 400 West Robinson Street, 308 Post Office Box 1900 Orlando, Florida 32802 (305) 423-6134 Approved this 13th Fred Roche, Secretary day of June, 1983. Department of Professional Regulation JH/dm 6/6/83 EXHIBIT 2 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 0024293 DOAH NO. 83-346 TERRY E. CHRISTENSEN and TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345 Respondents /
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner is a real estate salesman registered with the Florida Real Estate Commission. In September of 1978, petitioner submitted an application to the Florida Real Estate Commission for registration as a real estate broker. By an Order dated December 4, 1978, the respondent denied the application for the reason that the applicant had not made it affirmatively appear that he possessed the necessary qualifications under F.S. 475.17. Specifically, the Commission found "That it appears to the Commission that Salesman Dunkum signed Broker Wallace W. Staff's name as a witness to Dunkum's signature on a contract offer to purchase real estate without authorization. In addition, Salesman Dunkum signed Broker Staff's name to a listing agreement without authorization." The petitioner timely requested an administrative hearing on the denial of his application and the undersigned Hearing Officer was duly designated to conduct the proceedings. The petitioner Dunkum admits that he did sign broker Staff's name as a witness to his own signature on a contract for the sale of real estate. Mr. Dunkum has been a notary public for approximately fifteen years and was aware that he should not have signed Staff's name as a witness. Petitioner was the purchaser under the contract and did in fact purchase the real estate. Thus, neither the purchaser nor the seller was harmed by the wrongdoing. The petitioner further admits that he did sign broker Staff's name to a listing agreement. He admits that he was wrong to sign Staff's name, without adding his initials or name under the signature. Petitioner believed he had the authority to sign Staff's name to listing agreements in Staff's absence. Mr. Staff testified that he never gave petitioner authority to sign his name and that all listings were to be under his signature. Mr. Staff was aware that petitioner had signed his name on documents prior to September of 1978. Nevertheless, on September 18, 1978, Mr. Staff entered into a three year independent contractor agreement with petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for registration as a real estate broker be DENIED, but that petitioner be permitted to submit another application for registration nine (9) months after the Order of the Commission dated December 4, 1978. Respectfully submitted and entered this 30th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Rupert E. Dunkum 5900 94th Avenue Pinellas Park, Florida 32802
Findings Of Fact Respondent, Hillard J. Meinstein, is the holder of real estate salesman license number 0174789 issued by petitioner, Department of Professional Regulation, Florida Real Estate Commission. The license was issued on September 1, 1981 and remains current as of this date. On or about March 16, 1982 the circuit court for Hillsborough County, Florida entered an order accepting a plea of nolo contendere from one Hillard J. Meinstein for the offense of conspiracy to traffic in cocaine. Adjudication of guilt was withheld and Meinstein was placed on probation for 15 years and required to pay a $10,000 fine to the Hillsborough Country Sheriff's Office within one year after date of sentence. A certified copy of the order has been received in evidence as petitioner's exhibit 3. It was not disclosed whether the respondent and the defendant in the above case were the same individuals. On April 30, 1982 the supervisor for application certification of the then Board of Real Estate wrote the sheriff of Hillsborough County and requested him to search his records to determine if a Hillard Jeffrey Meinstein had been arrested by his agency for various charges including conspiracy to traffic in cocaine. The letter also indicated that Hillard Jeffrey Meinstein was an applicant for licensure as a real estate salesman. The response of the sheriff, if any, was not disclosed.
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 ENTERED this 31st day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 31st day of January, 1984. COPIES FURNISHED: Gary Lee Printy, Esquire P. O. Box 1900 Orlando, Florida 32802 Richard J. R. Parkinson, Esquire 602 East Central Avenue Orlando, Florida 32801
