Findings Of Fact Petitioners, a black married couple, executed a contract for the sale of real estate with Respondent Florida West Coast Homes, Inc., on April 15, 1985 which included their purchase of the land and a dwelling to be constructed thereon at Lot 5, Charro Lane, Country Trails Subdivision, Hillsborough County, Florida. The full purchase price of the land and dwelling was $79,850.00. Respondent Locke was President and General Manager of Florida West Coast Homes, Inc., at all times material hereto. He owned 50 percent of the stock of the corporation. Locke signed Petitioners' real estate sales contract on behalf of Florida West Coast Homes, Inc. Respondent Blanke acted as real estate salesman with Florida West Coast Realty in the transaction between Florida West Coast Homes, Inc., as builder and seller, and the Petitioners, as buyers. His broker, Frances Johnson, was employed by Locke. Blanke witnessed the sales contract. A deposit totaling $2000 was paid by Petitioners, who also paid a $1500 cash advance to Florida West Coast Homes, Inc., during construction of their home. These funds have never been refunded to Petitioners, nor has their home been completed. They have never closed on, or received a deed to, the property in question. Construction on Petitioners' home was begun in August, 1985 by Florida West Coast Homes, Inc., after approval for their V.A. financing was received. Approximately two weeks prior to commencement of construction on Petitioners' home, Florida West Coast Homes, Inc., began construction of a dwelling on the lot immediately adjacent to Petitioners' lot. This neighboring lot and dwelling is owned by Respondent Blanke. In September, 1985 construction of Blanke's house and Petitioners' were both at the same stage of completion. Subsequently, however, Blanke's house was completed in February, 1986, but Petitioners' house was not completed prior to Florida West Coast Homes' filing for Chapter 11 bankruptcy on February 27, 1986. Petitioners' house has not been completed to date. Reasons given to Petitioners for the delay in construction of their home included changes in subcontractors, and the need to complete other homes under construction before Florida West Coast Homes could complete their home. In reality, Florida West Coast Homes was in serious financial difficulty from November, 1985 until its filing for bankruptcy. Subcontractors and suppliers were refusing to do business with the company, and Locke was sued repeatedly in December, 1985 and January, 1986 for amounts owed by Florida West Coast Homes, Inc. Petitioners' contract for sale of real estate states that the estimated date of their home's completion would be November 15, 1985. However, when it became apparent that this completion date would not be met, Locke repeatedly informed them of new completion dates, including December 1, December 31 and January 31. All construction on Petitioners' house stopped after October, 1985 with the house forty or fifty percent complete. In late September or early October, 1985 Petitioners' went to see how construction was progressing on their home. They found that "KKK" had been painted on a tree in their yard. Two weeks later they found that the street in front of their house had been painted with the phrase, "KKK, No Nigers" (sic). Petitioners contacted Florida West Coast Homes about these incidents and requested that the tree be cut down and the street paint removed. They were advised by Locke that he would cut down the tree, but it would cost them $200 to $300, and further that there was nothing he could do about the street painting. In late March, 1986, Petitioners received two harassing telephone calls in which the callers said, "Niggers, take your money and run." This was after Florida West Coast Homes, Inc., had filed for Chapter 11 bankruptcy and also after a newspaper article had appeared in the Tampa Tribune which detailed the incomplete progress of construction on their home, and the racial slurs which had been painted on their tree and on the street. There is no evidence that any of the Respondents were responsible for, directed, or personally engaged in activities which resulted in these racial slurs and harassing telephone calls. Petitioners testified that they believe they were unlawfully discriminated against due to their race because the house next door, which was at the same stage of construction as theirs at one time and which was owned by Respondent Blanke, a white male who was employed by Florida West Coast Realty and who indirectly reported to Respondent Locke, was completed while theirs was not. In addition, Petitioners' phone calls to Florida West Coast Homes were not returned by Locke during December, 1985 and January, 1986. Blanke's employment was terminated by Locke in August, 1985, shortly after the execution of Petitioners' sales contract. There is no evidence that the termination and the execution of this sales contract were in any way related. Blanke did return to work for Locke part-time for two weeks in October, 1985, but decided not to continue this employment. Thus, during the substantial portion of all times material hereto, there was no employment relationship between Respondents Locke and Blanke. Blanke had received conventional financing for his home construction prior to commencement of construction in August, 1985. He closed on the property and received a deed at that time. Although construction on his home was completed when Florida West Coast Homes filed for bankruptcy, his property had liens totaling approximately $10,000. Locke testified that he did not return Petitioners phone calls in December 1985 and January, 1986 because his company was in severe financial trouble, and he did not have any answers for the creditors and home buyers who were calling him. He had eight homes under construction at the time, and only Blanke's home was completed prior to bankruptcy. Of the seven homes which were not completed, six were being purchased by white families and only Petitioners' by a black family. There is no competent substantial evidence that Respondents ever told Petitioners to take their money and get out of the deal, or in any way sought to force Petitioners out of their contract for sale.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered dismissing Petitioners complaint under the Fair Housing Ordinance of Hillsborough County. DONE AND ENTERED this 11th day of March, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1987. COPIES FURNISHED: Kerry H. Brown, Esquire 3202 Henderson Blvd. Suite 204 Tampa, Fl 33609 Richard P. Condon, Esquire 214 Bullard Parkway Temple Terrace, Fl 33617 Fred Locke 143 Bunting Lane Land O'Lakes, Fl 33539 Bryon Blanke 4804 Charro Lane Plant City, Fl 33566 Amelia G. Brown, Esquire P. O. Box 1110 Tampa, Fl 33601 Robert W. Saunders, Director Equal Opportunity Office P. O. Box 1110 Tampa, Fl 33601
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' factual stipulations, the following relevant facts are found: Respondent Sheldon West, Inc. was the developer of Sheldon West Mobile Home Community, a "condominium," as those terms are used and defined in Chapter 718, Florida Statutes. The Declaration of Condominium was recorded in the official records of Hillsborough County on September 27, 1978. The respondent transferred control of the Sheldon West Condominium Owner's Association, Inc. to the unit owners on June 30, 1986. In the Declaration of Condominium, respondent provided a guarantee of common expenses pursuant to Section 718.116(8)(a)2, Florida Statutes. Under the guarantee, respondent was excused from the payment of common expense assessments on developer-owned units for a period of five years. During that period, respondent guaranteed to unit owners that assessments would not exceed a certain stated level, and respondent obligated itself to pay any amount of common expenses incurred during the period and not produced by the assessments at the guaranteed level receivable from other unit owners. Common expenses during the guarantee period amounted to $57,895.00. Assessments collected from unit owners during the guarantee period amounted to $49,190.00. Thus, respondent's liability for common expenses during the guarantee period was $8,705.00. Respondent's guarantee of common expenses ended September 26, 1983. From September 27, 1983, through June 30, 1986, the date of the turnover, respondent paid no assessments on the lots it still owned. The Declaration of Condominium provides that assessments not paid within five days of the due date shall bear interest at the rate of ten percent per annum from the due date until paid. Respondent's liability for assessments from September 27, 1983, through June 30, 1986, amounted to $40,870.00, and the interest on the overdue assessments amounted to $7,032.35. The Homeowners Association over-reimbursed respondent for expenses incurred during the guarantee period in the amount of $12,968.00. In addition, respondent received two payments from Association funds in June, 1986 of $7,000.00 and $8, 000.00. In January of 1986, the respondent and the Department of Business Regulation entered into a Final Consent Order, which called for a $500.00 civil penalty. The respondent paid the civil penalty, and, in March of 1986, he was reimbursed from the Association funds for payment of said penalty. The payables due from the respondent to the Homeowners Association, amounting to almost $70,000.00, were not paid to the Association at turnover. Instead, they were applied and offset against what were represented to be advances and receivables payable to the respondent from the Association in the amount of $77,142.00. This amount represents the cost of construction by the respondent of a pool and a clubhouse on the common property, interest charged on the advance of funds from respondent to the Association, and management fees due on uncollected assessments. Construction on the pool and clubhouse began in November of 1980 and ended in February of 1981. Neither the Prospectus nor the Declaration of Condominium mention the construction of a pool or clubhouse. No vote on construction of the pool and clubhouse was ever taken of unit owners other than the Board of Directors. No approval in writing was ever given by unit owners. The Declaration of Condominium was never amended to reflect the addition of a pool or clubhouse. The minutes of a special meeting of the Directors of the Association held on October 21, 1980, reflect that one of the three Directors gave a report that "residents wanted a Pool and Rec. Building" located on the common property and "were willing to pay for the same from the assessments on the residents." The minutes further reflect that a motion was made and adopted that the developer construct the pool and building and that, in return, the Association agreed to repay the developer the cost of same, estimated at $60,000.00, on or before turnover to the resident unit owners. The minutes further state "copy sent to Residents and Directors." These minutes are unsigned, but typewritten are the names of Tom F. Brown, the President of Sheldon West, Inc.; Anna K. Laughridge, Mr. Brown's daughter; and Ken Lord, who apparently was a unit owner. As reflected in a document received into evidence as petitioner's Exhibit 11, the members of the Board of Directors of the Association on January 2, 1981, consisted of Ora Katherine Brown, apparently Tom Brown's wife; and Anna K. Laughridge. The minutes of a "special joint meeting of Board of Directors" of the Association held on January 2, 1981, reflect that the resignation of Ora Katherine Brown as an officer and director was accepted, and that Tom Fairfield Brown and Anna K. Laughridge were named as Directors. The minutes of a "special meeting of directors" of Sheldon West, Inc., held at 10:00 A.M. on February 24, 1981, reflect the adoption of a motion that Sheldon West, Inc. would advance the funds for payment of the cost of construction of the pool and recreation building with the understanding that it would be repaid for the funds so advanced, and that it would receive credit therefore by the Association for any sums which might be due, owing or claimed by the Association. The minutes make reference to a promissory note evidencing the agreement. The promissory note, respondent's Exhibit 4, states that at a special meeting of the Association held on February 24, 1981, the Association agreed to repay and credit Sheldon West, Inc. for all sums advanced for the construction of the pool and recreation building. This promissory note is dated February 24, 1981, and is signed by Tom F. Brown as the President of the Association. The minutes of the "special meeting of directors" of the Association held on February 24, 1981, at 4:00 P.M. reflect that Directors Tom F. Brown, Anna K. Laughridge and Ken Lord were present. The minutes further make reference to an agreement that the costs of the pool and recreation building were to be advanced by Sheldon West, Inc. with the understanding that it would receive credit for such funds and be reimbursed for any balance on the date of turnover to the unit owners. These minutes state "copy posted outside clubhouse and del. to residents."
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that: Respondent be found guilty of violating Section 718.116(8)(a)2, Florida Statutes, for its failure to fund the deficit during the guarantee period; and that a civil penalty in the amount of $5,000.00 be imposed for this violation; Respondent be found guilty of violating Section 718.116(1)(a) and (8)(a), Florida Statutes, for its failure to pay assessments on developer-owned units after expiration of the guarantee period; and that a civil penalty in the amount of $5,000.00 be imposed for this violation; and Respondent be found guilty of violating Rule 7D- 23.003(3), Florida Administrative Code, for utilizing Association funds for the payment of a civil penalty; and that a civil penalty in the amount of $1,000.00 be imposed for this violation. Respectfully submitted and entered this 2nd day of December, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 2nd day of December, 1988. APPENDIX The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner 24 and 25. Accepted as factually correct, but not included as irrelevant and immaterial to the issues in dispute. Respondent 4 and 5. Partially rejected and discussed in the Conclusions of Law. 7 and 9. Rejected as irrelevant to the issues in dispute. 10. Amount stated rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Scott Charlton, Esquire Peavyhouse, Grant, Clark Charlton, Opp & Martino 1715 N. Westshore Post Office Box 24268 Tampa, Florida 33623 David L. Swanson, Esquire Sandra E. Feinzig, Esquire Assts. General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 James Kearney, Director Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 =================================================================
The Issue Whether Respondent, Seven Lakes Association, Inc. (the Association), violated section 760.10, Florida Statutes (2018),1 by discriminating against 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2018 codifications of the Florida Statutes and Florida Administrative Code. Petitioner, Donald Chew, based on his race (African American) when it terminated his employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner, Donald Chew, is an African American male who was employed by the Association from January 23, 2017, to September 19, 2018. During the time he was there, Mr. Chew was one of the Association's few non-white employees. Respondent, the Association, is a condominium association governed by chapter 718, Florida Statutes. According to Mr. Chew, a majority, if not all, of the condominium owners are white. The Association has approximately 50 employees. The Association is governed by a Board of Directors (Board), made up of five to seven members. All the Board members who testified at the hearing were white. The Board hires a General Manager, who oversees the day-to-day operations of the Association. This includes oversight over the condominium grounds, recreation, and financial aspects of the Association. The General Manager had check-writing authority for the Association. For the times relevant to Petitioner's claims, Timothy Day served as the General Manager.2 Prior to being hired Mr. Day was involved in an investigation related to his employment with a local government entity. 2 Mr. Chew was hired by the Association's General Manager Judy Grosvenor, but Mr. Day became General Manager in August 2017. Neither the reason for the investigation nor the outcome of that investigation was clear from the evidence. Regardless, Mr. Day was given the opportunity to explain the circumstances related to the investigation to the Board prior to being hired. Relevant to this case, the General Manager oversaw the Accounting Manager, who managed a staff of accountants. June Gibbs served as the Accounting Manager who oversaw Mr. Chew from the date of his hire to May 2018, while he was in the staff accountant role. MR. CHEW'S JOB HISTORY AND DUTIES The Association originally hired Mr. Chew for the position of staff accountant. The hiring process consisted of review of Mr. Chew's resume, an interview, and then a criminal background and reference check. The Association did not check Mr. Chew's litigation history at the time it hired him. In September 2017, Ms. Gibbs gave Mr. Chew a mixed written performance review. Although he was "Above Average" in initiative and working relationships, Ms. Gibbs indicated he was "Below Average" in his basic accounting skills and his tardiness. In her comments, she noted: Don, I really dislike writing a negative evaluation. But, your accounting skills really concern me. This is why I hired you and the core of your position. It's been great that you have done well with the insurance and working with Brown & Brown. Even though we have struggled with the accounting parts of the insurance UMS you have done well assisting everyone setting [ ] this software up. And I believe you are above average in computer technology. But, once again accounting is the core. At this point because I really need someone strong in accounting behind me. I am going to have you stay with what you are good at – working on the insurance and UMS. And I will appoint you some basic accounting jobs. Also work on any tardiness issues. In March 2018, the Association requested that Mr. Chew obtain a Community Association Manager License (CAM License) from the Florida Department of Business and Professional Regulation. Mr. Chew submitted an online application in which he was required to answer a number of questions, including the following: 2. Are you or have you ever been a defendant in civil litigation in this or any other state … in which the basis of the complaint against you was alleged negligence, fraudulent or dishonest dealing, foreclosure, bankruptcy, or breach of fiduciary duty related to the practice or profession for which you are applying, or is there any such case or investigation pending. Mr. Chew answered "No" to this question. On May 2, 2018, the Association promoted Mr. Chew to the Administrative Services Manager (ASM) position, which reported directly to the General Manager, Timothy Day. Along with this promotion, Mr. Chew received a salary increase. In the ASM position, Mr. Chew handled a variety of issues and considered himself the General Manager's "right hand man." Mr. Chew did very well in this position and was well liked by the Board, Mr. Day, and the Association staff. In August 2018, Mr. Day announced that he would be resigning from the Association and recommended Mr. Chew for General Manager position. On August 30, 2018, the Board voted unanimously to appoint Mr. Chew as the Interim General Manager. The credible testimony at the hearing established that at this point the Board believed a final decision would be made for the permanent General Manager position after more extensive background checks were conducted on Mr. Chew. Meanwhile, Mr. Chew would serve in an interim capacity. Later on August 30, Mr. Day informed Mr. Chew that he had received information that there was judgment for embezzlement against Mr. Chew in an action brought by the Attorney General for the State of Illinois. Mr. Chew explained that the suit was not against him personally, but against a corporation. On September 4, 2018, Mr. Day informed Mr. Chew that he was being placed on paid administrative leave pending an investigation into the Illinois litigation. On September 19, 2018, the Association's attorney sent Mr. Chew a letter of termination. DISCRIMINATORY ACTS Mr. Chew testified that his accounting co-workers made racial comments that made him feel uncomfortable while he was working as a staff accountant. As described by Mr. Chew, these remarks were made while he was working under Ms. Gibbs, prior to May 2018. Mr. Chew's co-worker, Joan Farus, confirmed that Ms. Gibbs (Ms. Farus's and Mr. Chew's supervisor) and other employees talked about "black people" in a derogatory way around Mr. Chew.3 The undersigned finds that Petitioner established that he was subject to discriminatory comments by staff prior to Mr. Chew becoming an ASM. Mr. Chew also asserts that he was treated less favorably by the Board than the white employees. Mr. Chew presented little, if any, evidence of how he was treated less favorably by the Board. To the contrary, based on the testimony at the hearing by the Board members and staff, it was clear that Mr. Chew was well liked; the Board promoted him and provided him with bonuses and pay raises. The fact that the Board unanimously approved him for the Interim General Manager position on August 30, 2018, leads to the conclusion that the Board did not have any racial animus toward Mr. Chew. Although the Association has an Equal Opportunity Employer and Non-Harassment Policy, there is nothing in its Employee Handbook 3 Ms. Farus was terminated by the Association in August 2018. specifically prohibiting discriminatory conduct based on race. The Handbook indicates employees "deserve to be treated with respect and courtesy." It also states it is company policy that the "workplace be free of tensions involving matters which do not relate to our business" such as "ethnic, religious, or sexual remarks," but stops short of explicitly prohibiting racism or racist comments. The Handbook does urge an employee who feels harassed to notify a supervisor or the Human Resources department. It also provides that any grievances regarding the job, working conditions, or problems with another employee be submitted to the employee's immediate supervisor in writing. There is no credible evidence Mr. Chew ever submitted a written complaint to his supervisor, Human Resources, or anyone else at the Association regarding the racist comments. MR. CHEW'S BACKGROUND HISTORY After the Board appointed Mr. Chew as the Interim General Manager, Kathy Miske, a white female who lived in an Association condominium, researched Mr. Chew's background.4 Ms. Miske previously performed background checks for a law firm in Chicago before she moved to a condominium in the Association. She researched Mr. Chew because she had a "habit of checking on people," and she had been approached by a condominium resident, Debbie Combs, also a white female, who was suspicious of Mr. Chew. The reason for Ms. Combs's suspicion was not disclosed at the hearing. Ms. Miske discovered that the Attorney General of Illinois had filed a "Verified Complaint for an Injunction, an Accounting, Surcharge, and Other Equitable Relief" (Complaint) against Mr. Chew personally in May 2013. The Complaint essentially described an embezzlement scheme, and specifically accused Mr. Chew of abusing a position of trust while employed at Marcy- 4 Although she later became a Board member, at the time she researched Mr. Chew she was not. Newbury Association, Inc. (MNA). It alleged Mr. Chew had misappropriated funds, in violation of the Illinois Charitable Trust Act. Although not a criminal prosecution, the Illinois Attorney General sought injunctive relief, civil damages, punitive damages, and civil penalties against Mr. Chew. Ms. Miske also discovered an Order of Final Judgment (Final Judgment) had been entered against Mr. Chew in the Illinois case on September 9, 2013. The Final Judgement seems to be a default judgment. As a result, Mr. Chew was enjoined from serving as a charitable trustee, was ordered to pay $205,372 in damages, and was also required to pay interest and investigative costs. Although Mr. Chew had a plausible explanation as to the circumstances surrounding the Illinois case, there was no evidence that the Final Judgment had been appealed, withdrawn, reversed, or nullified in any way. Mr. Chew admitted he did not notify the Association of the Final Judgment and that he did not list MNA on the resume he provided to the Association. Ms. Miske made copies of the Complaint and Final Judgment against Mr. Chew. She distributed the copies to three of the Board members that she knew personally. Eventually, copies were provided to the President of the Board, Mr. Day, and the Board's attorney. The Association was required by law to maintain a bond to cover its employees, including the General Manager.5 The Board members testified they were concerned that the Final Judgment would affect the Association's ability to obtain the proper bond if Mr. Chew became General Manager. The Board members relied on the Association's attorney's advice regarding the Association's ability to obtain a bond and the attorney's recommendation to terminate Petitioner based on the Complaint and Final Judgment. Mr. Chew claims that he was discriminated against because he was not given an opportunity to explain the Final Judgement or underlying facts to the Board. In comparison, he claims Mr. Day was given an opportunity to explain a criminal investigation against him and was hired despite the investigation. Mr. Day had previously been involved in the local government, but the nature of the investigation or the outcome of that investigation was not established at the hearing. Mr. Chew had a Final Judgment against him by the Illinois Attorney General for what essentially amounted to embezzlement. In contrast, Mr. Day was only under investigation; there was no evidence he was found guilty of anything. Moreover, Mr. Chew failed to disclose a former employer, MNA. There is no proof that Mr. Day tried to hide that he had been under investigation or that he hid his employment by a previous employer. 5 Section 718.111(11)(h), Florida Statues, states: (11) INSURANCE. * * * (h) The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term "persons who control or disburse funds of the association" includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Donald Chew's Petition for Relief. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 COPIES FURNISHED: Tammy S. Barton, Agency Clerk Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Donald Chew 1262 Northeast 41st Terrace Avenue Cape Coral, Florida 33909 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Vanessa Fernandez, Esquire Pavese Law Firm 1833 Hendry Street Fort Myers, Florida 33901 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Petitioner applied for licensure by examination as a real estate salesman sometime prior to July 14, 1987 but her application was denied because she had been convicted of the possession of cocaine. On July 15, 1986, the Petitioner, Kristin M. Yanick, was arrested in Martin County, Florida, and charged with possession of cocaine, resisting an officer without violence, and possession of narcotics equipment. Thereafter, the court withheld adjudication of guilt on the possession of cocaine charge and dismissed the others, and, in November, 1986, placed her on probation for five years, assigning her to Mr. Martin T. Zientz, a Probation Officer. Petitioner successfully carried out the terms of her probation until sometime in May, 1987 when one of her periodic drug analysis reports requested by the Probation Officer came back positive for cocaine. Petitioner immediately and voluntarily entered a detoxification unit and Mr. Ziantz considers this an isolated incident. Since her release from the detoxification unit he considers her conduct to have been exemplary. Petitioner has taken a job and, according to interviews conducted with her supervisors is doing well. Mr. Zientz is convinced that Petitioner will stay clean of drugs because of her strong goal of getting a real estate license. He is willing to work with the Real Estate Commission to ensure she remains free of drugs if such could be made a condition imposed by the Commission. Mr. Zientz does not feel Petitioner is manipulating the system. She works closely with him and he would consider her to be in the top 15 percent of his probationers. She will be eligible for termination of probation when she has completed one-half her sentence. He considers her to be a responsible individual and he believes she could serve effectively as a real estate salesman. These sentiments are shared by Deputy Johnson who has known Petitioner for about two years including the period of her difficulty with drugs. Subsequent to her treatment, he has seen a considerable difference in her attitude and outlook. She is working and has taken over the care of her own children who previously were with her parents and she appears to have improved physically. Johnson, too, feels that she is not a manipulative person and is sincere in her efforts to be a responsible individual. Petitioner is quite active in her church and its Sunday School. According to Jacqueline Esker, Petitioner has filled in as a substitute Sunday School teacher and Mrs. Esker feels that Petitioner is making a sincere effort to get on with her life and her children. She is active in other church activities as well. Mrs. Esker is aware of Petitioner's problems with drugs and would nonetheless, have no hesitancy in allowing Petitioner to teach her children in Sunday School. She feels safe with her children in Petitioner's care. Petitioner worked for Mr. Edward Bessemer several years ago. He is aware of her drug problem and can see a night and day difference in her since her rehabilitation. While she was working for him, she had the keys to his office and his home and had access to petty cash. Even when she was involved with drugs, she never violated his trust and he would trust her with his life. He considers her to be responsible, conscientious, and an honest person. If it were possible for him to do so, he would hire her on a full time basis. Sherry Ketchum, a former member of the Ethics and Standards Committee of the Martin County Board of Realtors, worked with Petitioner in the same real estate office during the period Petitioner was having trouble with drugs. Since her rehabilitation , Petitioner has become a conscientious employee with a good attitude. She is punctual and responsible and Ms. Ketchum has no reservations about Petitioner sitting for the real estate examination. When they were working together for a developer, Petitioner showed homes for Ms. Ketchum and had access to private property. There was never any indication of Petitioner's dishonesty and were she able to do so, Ms. Ketchum would hire Petitioner. Frances J. Yanick, mother of Petitioner's estranged husband, has known her for approximately 5 to 6 years and is aware of Petitioner's drug problem. Mrs. Yanick has seen a tremendous change in Petitioner's behavior. She has taken hold of her life and is going to work every day; her children are well taken care of; she is active in the church; and has made a responsible effort to manage her time and set a goal for herself. Mrs. Yanick, does not feel that Petitioner is manipulating the system. She believes that Petitioner should be allowed to sit for the examination since she has proven she is capable, honest, and trustworthy and would be no threat to the public. If Petitioner is allowed to earn her license, Mrs. Yanick intends to hire her. Petitioner admits she is guilty of possessing cocaine. However, she contends, prior to her arrest, she enrolled in the Palm Beach Institute, a drug rehabilitation facility, on her own because she knew she needed help. She has learned a lot about her addiction. Petitioner has wanted to be a real estate agent even prior to her arrest but at that time, did nothing about it. After her arrest, she decided she had to do something positive or she would never get her life in shape. She stopped using drugs, voluntarily entered a drug rehabilitation program, and enrolled in real estate school. Petitioner admits that in April, 1987, she again used cocaine. For the most part, however, she has continued with mental health counseling , has entered Alcoholics Anonymous , and has enlisted the support of her pastor and her mother-in-law. She believes this is a very strong support system and will be instrumental in keeping her drug-free. She now has hope instead of despair and courage instead of depression. She got rid of all her old friends and has new ones; she has developed a routine to live by; and, most important, she has grown up. She has self-discipline and has opened a new relationship with her children , and , hopefully, with her husband. Understanding the legitimate concern of the Real Estate Commission and recognizing that licensing is a privilege with responsibilities attendant thereto and not a right, she feels confident she can handle these responsibilities. She believes her dependency is sufficiently under control that she can handle the responsibilities that would go with licensing as a real estate salesman . Her support system is sufficient to bolster her when things do not go as she would hope. She is willing to work under any conditions imposed by the Commission. Petitioner submitted a package of letters from numerous individuals testifying to her rehabilitation and recovery. These include her addiction counselor at the Indian River Mental Health Center; her sister; her pastor; Mr. Johnson; Mr. Lucien Roy, a former employer in the investment business; her mother-in-law; her husband; the church secretary; neighbors; other real estate professionals; co-workers; and acquaintances; all of whom support her in her effort toward licensure. In their opinion, she is honest, sincere, dependable, enthusiastic, and conscientious and should not be continually penalized because of her one mistake with drugs. Petitioner's sister, Ms. Silva, who was herself an addict, is now a rehabilitation professional in Palm Beach County. She concludes that Petitioner has all the right things going for her. The biggest thing in Petitioner's favor at the moment is her participation in Alcoholics Anonymous. She believes that Petitioner, honestly recognizing that she has and will continue to have a drug addiction, can nonetheless manage it with continuing success.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Kristin Yanick be permitted to sit for the examination for licensure as a real estate salesman in Florida. RECOMMENDED this 2nd day of October, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 2nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3020 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner Accepted and incorporated in Finding of Fact 1. Accepted and incorporated in Finding of Fact 2. Accepted and incorporated in Finding of Facts 1 and 2. 4 and 5. Accepted and incorporated in Finding of Facts 1 and 2. Accepted. Accepted and incorporated in Finding of Facts 4, 6, 7, 8, 9, 10, 11 and 12. Accepted and incorporated in Finding of Facts 3-5. For the Respondent 1 and 2. Accepted and incorporated in Finding of Facts 1 and 2. Accepted and incorporated in Finding of Facts 3 and 15. Rejected as a restatement of the evidence and cumulative. Rejected as a restatement of the evidence or comment thereon. COPIES FURNISHED: Bruce M. Wilkinson, Esquire 55 East Osceola Street Suite 100 Stuart, Florida 34994 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson Street Room 212 Orlando, Florida 32801 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Department of Professional Regulation Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Prestige Realty, Inc. and Anthony C. Cappello were at all times here relevant registered with the FREC as alleged. Mrs. Cappello, wife of Respondent, is a salesperson with Prestige Realty, Inc. Prestige Realty, Inc. is an Electronics Realty Associates (ERA) franchisee and actively promotes the ERA Homeowners warranty Plan which will, for a fee, warrant to pay for repairs to structure and equipment within the first year of purchase all costs over the minimum for which the policy is written. While showing prospective purchasers William and Dora Keys various properties, Mrs. Cappello told them about the ERA Buyers Protection Plan (BPP) and the Keys expressed an interest in having same, particularly if the seller would pay for it. Mrs.. Cappello has worked with the Keys for several months showing them various properties for sale. Thomas Hanrahan listed his home for sale with B & M Real Estate as listing agent at a price of $52,000 on 31 January 1977. On April 28, 1977 Mrs. Cappello obtained an offer from William and Dora Keys to purchase Hanrahan's house for $49,000. Keys had inherited some money, and after seeing the Hanrahan house which they liked, made an offer to purchase the property for $49,000 including the drapes and BPP. Inclusion of the BPP in the offer was suggested by Respondent Cappello and/or Mrs. Cappello. The fact that an offer had been received was communicated to the listing salesperson and the listing agent met the Cappellos to present the offer to Hanrahan. Respondent Cappello, who had accompanied his wife to present the offer, first discussed the contract conditions, including drapes and BPP, before revealing the offering price to Hanrahan and the listing broker's agent. When Respondent revealed the $240 premium for BPP Hanrahan remarked it was a "rip- off"; however, Respondent Cappello emphasized that the seller shouldn't mind paying this premium if the selling price of the home is right. After obtaining Hanrahan's agreement to the BPP "if the price is right', Respondent disclosed the offering price of $49,000. Hanrahan refused this offer and made a counter offer of $51,000, which was communicated to the buyers who re-countered with a $50,000 offer. At no time during these negotiations did Respondents advise Hanrahan that Prestige Realty would receive 25 percent of the premium the contract provided the seller would pay for the ERA BPP. Of the $240 premium paid for the BPP, $C0 was retained by Respondent, Prestige Realty, and the remaining $180 was forwarded to ERA. When the offer of $50,000 was presented to Hanrahan by Respondent Cappello, it was represented to be the buyers' final offer, that the ERA BPP was an essential element of the offer, and if not accepted by the seller they would find the buyers another house. The Keys never insisted to Cappello that the BPP be included in their offer, and both William and Dora Keys testified they would have paid $50,000 for the Hanrahan home without the BPP. Attempts by Hanrahan to share the cost of BPP with the buyers or discourage their insistence upon having this policy provided were rebuffed by Respondents. Following the closing the Keys were offered the option of taking a lower deductible on the BPP than $100, but after being advised the additional cost to them for a lower deductible, it was declined. Respondents and other ERA franchisees consider the BPP to be a good selling tool in the conduct of their business. In addition to the BPP, ERA offers a sellers protection plan which, if the seller lists his house with an ERA franchisee and agrees to pay for a BPP when the house is sold, will insure the seller from failure of certain equipment (less a deductible) during the period the house is listed before sale.
Findings Of Fact The Petitioner, Claudio A. Sevilla, submitted an application for licensure as an associated person with Great Western Financial Securities Corporation. At the time that application was submitted, the Petitioner was employed by, or had a contract for employment with, Great Western Financial Securities Corporation. Shortly after issuance of the original notice of denial, Great Western Financial Securities Corporation terminated its employment relationship with the Petitioner. As a result of that action, the Petitioner is not currently seeking, and cannot currently seek, registration as an associated person with Great Western Financial Securities Corporation because he no longer has an employment relationship with that company. In Florida, an individual must be employed by a dealer or investment adviser in order to become registered as an associated person. The Petitioner cannot become registered as an associated person with a dealer or investment adviser with which he does not have an employment relationship. Prior to filing the subject application, the Petitioner was the subject of disciplinary proceedings regarding certain banking activities. Those disciplinary proceedings were resolved by a consent order, in which the Respondent was ordered to pay an administrative fine in the amount of five hundred dollars and to cease and desist from certain enumerated activities. The Respondent never paid the administrative fine. 2/ Item 22E(4) of the application form asks whether any state regulatory agency has ever "entered an order against you in connection with investment- related activity?" At the beginning of item 22 on the application form, the term "investment related" is defined as "Pertaining to securities, commodities, banking, insurance, or real estate including, but not limited to acting as or being associated with a broker-dealer, investment company, investment adviser, futures sponsor, bank, or savings and loan association." [Emphasis supplied.] The Petitioner checked the "No" box in response to item 22E(4) on his application. 3/
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Banking and Finance issue a Final Order in this case denying the Petitioner's application for licensure as an associated person with Great Western Financial Securities Corporation. DONE AND ENTERED this 5th day of October 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October 1994.
The Issue The issue presented is whether Respondents Great American Financial Network, Inc., and Edward Bates are guilty of the allegations in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact From November 1, 1983, through December 31, 1998, Respondent Great American Financial Network, Inc. (hereinafter "Great American"), was registered with the Department as a licensed securities broker/dealer. Between May 24, 1994, and June 18, 1999, Respondent Edward Bates was registered with the Department as an associated person of Great American. Between May 1994 and December 31, 1998, Bates was a control person, president, treasurer, and secretary of Great American. Between May 1997 and December 31, 1998, Bates was the owner of at least 75 percent of Great American. At all times material hereto, Bates was also president and control person of Great American Resorts of Florida (hereinafter "Resorts"). Resorts and Great American were owned by Great American Resorts and Hotels (hereinafter "Resorts and Hotels"). Bates was also president and chief executive officer of Resorts and Hotels. Great American, Resorts, and Resorts and Hotels were affiliated at the time the promissory notes in question were offered and sold to investors. Resorts issued unsecured promissory notes that were sold to investors by Great American and by Bates personally. The unsecured notes were not registered with the Department and were not exempt from registration. The Department received consumer complaints from investors that there had been a default in payment of interest and principal on the unsecured promissory notes sold by Great American and Bates. The Department initiated an investigation and obtained a search warrant in April 1998. The records gathered revealed that there were at least 58 non-accredited investors who had invested in the unsecured promissory notes sold by Great American and Bates. The Department interviewed 25 of them. The age of the investors ranged from 50 to 80, with the majority of them in their 60s and 70s. The investors were induced to participate in the unsecured note program by representations that the notes were a sound investment. Great American and Bates specifically told the investors that the notes were as safe as annuities or certificates of deposit. Great American and Bates specifically told the investors that the notes were guaranteed. The investors believed they were investing in notes backed by a company that owned properties, specifically hotels. However, the company had no assets and no revenue except from the sale of the unsecured promissory notes. Further, the money invested by new investors was used to make some payments to complaining investors and to pay the company's bills. A private placement memorandum is the equivalent of a prospectus. The investors were not provided with any disclosure documents. Specifically, they were not provided with a private placement memorandum, even though one was available. Bates instructed other employees of Great American not to provide any investor with the private placement memorandum because it contained disclosures which reflected that the investment was "highly speculative" and that investors should not purchase the notes unless they could "afford to lose all the money invested." Bates personally prepared a packet that was given to investors. It only contained the first page of the private placement memorandum and the signature page. The investors were not told of any risks from investing in the notes. Had they been told, they would not have invested because safety of principal was their primary concern. The investors were not suitable for Great American's note program because the risk of loss was too great. The majority of the investors were retirees, and they had used their retirement savings to purchase the notes from Great American and Bates. The unsecured notes sold by Great American and Bates were a very risky investment and were not, therefore, suitable for retirees wanting to preserve their capital. Bates pressured the other brokers at Great American to place their investors into the notes. He told them they would not receive a paycheck unless they did. As a result, investors were switched from other extremely safe, secure investments with guaranteed returns into the risky unsecured notes. Great American and Bates conducted seminars that were advertised in the newspaper to find new investors and induce them to purchase the unsecured notes. The advertisements misrepresented that the investment carried a high interest rate and was guaranteed and insured. Bates personally made the presentation and personally sold the unsecured notes to attendees from the seminars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding Respondents Great American and Bates guilty of the allegations contained in the Administrative Complaint filed against them; Revoking all registrations held by Respondents Great American and Bates; Ordering Respondents Great American and Bates to cease and desist from their violations of Chapter 517, Florida Statutes, and the rules promulgated pursuant to that chapter; Ordering Respondents Great American and Bates jointly and severally to pay to the Department an administrative fine in the amount of $290,000; and Ordering Respondents Great American and Bates jointly and severally to pay to the Department the additional amount of $500 as attorney's fees attendant to the Department's motions for sanction. DONE AND ENTERED this 10th day of December, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 10th day of December, 1999. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Diane E. Leeds, Esquire Office of the Comptroller 111 South Sapodilla Avenue, Suite 211 West Palm Beach, Florida 33401 Great American Financial Network, Inc. c/o Great American Casino, Inc. 5805 State Bridge Road, Suite G-286 Duluth, Georgia 30097 Edward Bates c/o Great American Casino, Inc. 5805 State Bridge Road, Suite G-286 Duluth, Georgia 30097
Findings Of Fact Petitioner was arrested in St. Petersburg, Florida, in February, 1977, for driving under the influence of alcohol, found guilty and sentenced to a $100.00 fine, loss of driver's license for three months and a Driving While Intoxicated course. In June of 1981, Petitioner was arrested for possession of marijuana and subsequently pled guilty to the charge of possession of marijuana. Petitioner is currently employed as a meter reader with the Florida Public Utilities Company. The testimony of a coworker established that he is a reliable, trustworthy employee of the company. The testimony of other witnesses established that Petitioner has a reputation for honesty in the areas where he grew up and where he currently resides. Petitioner is 25 years old. He accepts responsibility for his misconduct and demonstrates a degree of maturity which he apparently lacked at the time of the above violations.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order granting the application for licensure. DONE and ENTERED this 30th day of November, 1982, 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 30th day of November, 1982.
The Issue Should discipline be imposed against Respondent's Florida real estate sales associate license?
Findings Of Fact Stipulated Facts: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate sales associate, issued license number 3015177, in accordance with Chapter 475 of the Florida Statutes. The last license issued was as a sales associate with Diane Lynne Severino, P. O. Box 354491, Palm Coast, Florida 32135-4991. On or about August 6, 2004, Joaquin Torres and Marine Hopson (Torres) entered into a purchase and sale agreement for the real property located at 9 Rockwell Lane, Palm Coast, Florida. Respondent was the sales associate on the above transaction. The closing did not occur on the above transaction. Additional Facts: According to Petitioner's records, the following constitutes the history of Respondent's sales associate license: Francis Anthony Severino, Sr., Sales Associate, License #SL-3015177 From January 1, 2004 to October 4, 2004, he was a sales associate affiliated with Team Real Estate, Inc. doing business as Realty Executives Fun Coast Team license number CQ 1008966, a brokerage corporation located at 185 Cypress Point Parkway, suite 4, Palm Coast, Florida 32164; From October 4, 2004 to March 31, 2005 said licensee was invalid due to no employing broker or no filing of a request to remain a sales associate under another broker. From March 31, 2005 to the Present he is a sales associate affiliated with Diane Lynne Severino license number BK 666867, a brokerage sole proprietorship doing business as Severino Realty located at 170 North Beach Street, Daytona Beach, Florida 32114. Petitioner's Exhibit numbered 1. In his testimony Respondent indicated that his affiliation with Team Real Estate, Inc. ended on September 13, 2004, when he became inactive with that firm. Respondent's Exhibit numbered 2 is a copy of a DBPR RE-2050-1 Request for Change of Status form intended to establish the separation from that business. Mark Vost the real estate broker for Team Real Estate, Inc. filled out, signed, and sent it in. It has a fax stamp of September 13, 2004. The request by Mark Vost to inactivate Respondent as a sales associate with Team Real Estate, Inc., through the form DBPR RE-2050, was dated September 13, 2004, and officially received by the Department of Business and Professional Regulation on October 4, 2004. More significantly, Respondent testified that he filled out a DBPR RE-2050-1 a Request for Change of Status to be affiliated with Severino Realty whose broker was Diane L. Severino. At that time, Ms. Severino was Respondent's wife. A copy of the Request for Change of Status is found as Respondent's Exhibit numbered 3. It is dated September 13, 2004. Unlike Respondent's Exhibit numbered 2, Respondent's Exhibit numbered 3 does not have a fax stamp showing the date of transmission. Respondent indicated that he personally went to the fax machine in the office of Severino Realty and transferred his license to Petitioner by fax machine. On September 13, 2004, the date reflected on the form, Petitioner did not confirm the fax receipt by Petitioner. Respondent's explanation is that the fax machine upon which the transfer to Severino Realty of his sales associate license "did not have a receipt that prints out." Respondent in his testimony stated " . . . When I dialed the phone I got the dial tone, it rang, it answered, it made that beeping noise, and it never came and said anything that it did not go through and that it was an error. So I just assumed that it was accepted, because normally when a fax machine answers you, that beeping sound and it means that it is acknowledged and if it does not answer it’s a busy signal and you try dialing again." According to Respondent, from that point forward he assumed that his sales associate license had been transferred from Team Real Estate, Inc. to Severino Realty. It had not. Petitioner had evidence of the change of status of Respondent's license to inactive with Team Real Estate, Inc. It did not have evidence of the activation of Respondent's sales associates license with Severino Realty, even should one accept Respondent's testimony that he tried to fax the DBPR RE-2050-1 form designating a change in his broker to Diane L. Severino of Severino Realty on September 13, 2004. Ultimately the portrayal of Respondent's license history established in Petitioner's Exhibit numbered 1 is accepted where Respondent is recognized as being affiliated with Severino Realty commencing March 31, 2005. Respondent was involved with the Torres in a number of real estate transactions. One involved a purchase of a residence at 98 Ulysses Trail in Palm Coast, Florida, through a contract between Joaquine Torres and Holiday Builders, Inc. On July 21, 2004, the parties signed the contract. The total purchase price was $180,190.00. Respondent was named in the Sales/Forms FHA-VA- Std. in the portion of the forms described as "Realtor Referral" and Realty Executive is written next to his name. This is understood to refer to Team Real Estate, Inc. where Respondent was employed as a sales associate. The real estate commission involved with the purchase was 6 percent. Petitioner's Exhibit numbered 2. The real estate commission due Realty Executives (Team Real Estate, Inc.) was $8,129.00 in Respondent's name. Petitioner's Exhibit numbered 2. On September 24, 2004, when the purchase was settled at closing, the $8,1029.00 was paid, in relation to the property at 98 Ulysses Trail. Petitioner's Exhibit numbered 3. On September 24, 2004, the Torres as seller, with Severino Realty being reflected as the broker signed an Exclusive Right of Sale Listing Agreement for the 98 Ulysses Trail property. The price reflected was $229,800.00 with a broker's commission of 5.5 percent. The listing agreement bore one signature, that of the seller. The form did not name the authorized listing associate or broker. It referred to the brokerage firm name as Severino Realty. Petitioner's Exhibit numbered 4. Earlier, Mr. Torres entered into a "Showcase Home Purchase Completed Field Model Agreement" with Holiday Builders, Inc. for a residence at 9 Rockwell Lane, Palm Coast, Florida. On August 6, 2004, the parties signed the agreement. Petitioner's Exhibit numbered 5. On September 24, 2004, an Exclusive Rights of Sale Listing Agreement form was prepared between the Torres and Severino Realty on 9 Rockwell Lane, listing the sales price as $164,900.00. At the time, the Torres did not own the home. The brokerage commission was 5.5 percent. A seller's signature was attached. No other signature was provided. No one was listed as associate or broker. Petitioner's Exhibit numbered 6. The Torres' contract on 9 Rockwell Lane never closed due to the inability of the Torres to provide sufficient funds to conclude the purchase. On October 7, 2004, the Torres executed a Promissory Note to pay Respondent $5,000.00 upon the first sale of homes at 98 Ulysses Trail, 9 Rockwell Lane and 14 Ethel Lane. The amount was to be paid in 180 days from the date of the note payable at PO Box 354491, Palm Coast, Florida 32135 or "at such other place as payee or holder may specify in writing or in person." Petitioner's Exhibit numbered 7. On October 7, 2004, Mark Vost, broker/manager for Realty Executives Fun Coast Team Real Estate, Inc., wrote the title company that would be handling the closing on the 9 Rockwell Lane Property to advise that $5,000.00 of commission should be credited to the buyer with the balance of $879.00 being paid to Realty Executives the Fun Coast Team. Respondent's Exhibit numbered 8. This coincides with the settlement charges in the settlement statement for the 9 Rockwell Lane property that did not close on the anticipated date. October 12, 2004, was the scheduled closing date. Petitioner's Exhibit numbered 9. After the Torres purchase of 9 Rockwell Lane did not close, Respondent telephoned Ms. Torres and said that she would have to pay him $6,000 because of the percentage (commission) he was losing. He made more than one call. Respondent told Ms. Torres that the failure to close on the 9 Rockwell Lane property was not his problem. Respondent told Ms. Torres that she had to pay because she did not buy the property at 9 Rockwell Lane, that he lost his time and lost his commission and that it was her fault. Respondent told Ms. Torres to give him a check. Eventually, Respondent came to the Torres home to get money from the Torres that he said was due. Based upon the demand for money, Ms. Torres wrote a check payable to Frank Severino in the amount of $6,000.00. The face of the check stated the purpose for the check as "9 Rockwell Lane." The check was written on October 12, 2004, the date Respondent went to the Torres' home. The payment was not intended as any form of gift or gratuity to Respondent. Respondent deposited and cashed the check. A replica of the check and its execution is found as Petitioner's Exhibit numbered 10.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 455.227(1)(n) and 475.25(1)(b), (d) and (e), Florida Statutes (2004), and revoking Respondent's sales associate license.1/ DONE AND ENTERED this 30th day of March, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 30th day of March, 2007
