The Issue The issue is whether Respondent should grant Petitioner a real estate broker license.
Findings Of Fact Mr. Mouflouze has held real estate licenses in New Hampshire and Maine for about 28 years. He lives in Portsmouth, New Hampshire, which abuts the Maine border. It was because he lives in close proximity to Maine, that he maintained a license there, also. The Commission, pursuant to Chapter 475, regulates real estate brokers and sales associates. The Commission accomplishes this regulation through the Division of Real Estate of the Department of Business and Professional Regulation. Mr. Mouflouze currently holds a broker's and salesperson's license in New Hampshire. He has not experienced any disciplinary action in that state. These licenses have an expiration date of April 1, 2008. From 1982 until 2004, Mr. Mouflouze held a designated broker's license in Maine. Prior to February 19, 2004, Mr. Mouflouze failed to complete the required hours of continuing education in Maine, according to the Maine Real Estate Commission (Maine Commission). He disagreed with this conclusion. He attended a hearing before the Maine Commission and after the hearing the Maine Commission ordered him to pay a fine of $900 and to complete six hours of continuing education. Mr. Mouflouze refused to pay the fine or otherwise obey the order. As a result, the Maine Commission had another hearing in his case on August 19, 2004, based on his failure to comply with its order. As a result of that hearing, his designated broker license was revoked effective the date of the hearing. As of the date of the hearing in this case, his license in Maine had not been reinstated. Mr. Mouflouze is a person who is regarded as a highly qualified and ethical real estate broker. He is reputed to be honest and hard-working.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission deny William Peter Mouflouze's application for licensure as a real estate broker. DONE AND ENTERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of October, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William Peter Mouflouze Bill Mouflouze Real Estate Post Office Box 6541 Portsmouth, New Hampshire 03802-6541 Nancy B. Hogan, Chairman Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, George May, was a licensed real estate broker (License No. 00056693) whose principal business address is 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida 33311. On April 24, 1980, George Aro, a licensed real estate salesman, was employed by Respondent and entered into an employment agreement whereby salesman Aro, while acting in his capacity as a real estate salesman, would receive a sixty percent (60 percent) share of commission fees paid when salesman Aro was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit 1). On August 29, 1980, salesman Aro discussed, negotiated, and obtained a contract for purchase whereby Peter Licato agreed to purchase a vacant lot in Palm Beach County, Florida. The transaction closed during September, 1980, with Respondent receiving a commission of approximately $300.00 on the Licato transaction. (See Petitioner's Exhibit 2). Pursuant to the employment agreement entered between Respondent and salesman Aro, Messr. Aro demanded his pro-rata share of the commission paid, which was received by Respondent. Respondent refuses to account for, or otherwise deliver to salesman Aro any portion of the commission received from the Licato transaction. On August 9, 1980, salesman Aro, while acting in his capacity as salesman with Respondent, negotiated and obtained a contract of the sale of a vacant lot in Palm Beach County, Florida from seller, Mrs. Nicholas Deickmann to purchaser, Hooshang Abid. The transaction closed sometime during September of 1980, and Respondent received a commission of approximately $330.00. Pursuant to the party's employment agreement, salesman Aro demanded his pro-rata share of the commission received, and Respondent refuses to remit or otherwise deliver to salesman Aro his portion of the commission received. In this regard the Respondent does not dispute and stipulated that salesman Aro was the procuring cause of the above-referred-to transactions, and admits that the commissions were received. Respondent's Defense Respondent defended his failure to account for or otherwise deliver to salesman Aro commissions received from the above transactions on the theory that salesman Aro failed to attend the closings of the above transactions, or that salesman Aro obligated his firm to pay certain expenses which were connected with the closing, which were not authorized. Respondent's defense was considered by the undersigned and rejected for lack of proof. Moreover, the undersigned advised Respondent during the hearing herein that the proper procedure to seek redress from salesman Aro for those claims asserted herein, which were not a part of the subject administrative complaint, is through the filing of a written complaint properly executed, with the Board of Real Estate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's real estate broker's license be suspended for a period of two (2) years. RECOMMENDED this 25th day of August, 1981, in Tallahassee, Florida. JAMES E. BRADWELL 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 August, 1981. COPIES FURNISHED: John R. Huskins, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. George May 2300 West Oakland Park Blvd. Suite 202 Fort Lauderdale, Florida 33311
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Division of Real Estate, (Division), was the state agency responsible for the regulation of the real estate profession in Florida. At the same time, Respondent, Thomas Twitty, Jr. was a licensed real estate broker in Florida, operating under license number 0090569, and was broker for the Respondent, Twitty and Company, Ltd., which operates under license number 0211681 at 13090 B. Starkey Road, Largo, Florida. Respondent, Lonnie A. Fitton, was a licensed real estate salesman under license number 0442127. On March 12, 1985, while employed as a salesman with Twitty & Company, Ltd., Fitton solicited and obtained from James L. Schneider a sales listing for Schneider's house located at 1316 Kennywood, Largo, Florida. The listed sales price was $129,500.00. Mr. Schneider had purchased the property, along with another individual no longer involved, Mr. Daly, from Pioneer Federal Savings and Loan Association in December, 1984 for $50,000.00 in a distress sale. The property had been occupied but was abandoned, and Pioneer, which had held the mortgage on it, gained title in a foreclosure action. When Schneider purchased the house, it was in poor condition. The walls and cement slabs on which it rested were severely cracked in numerous places. The foundation, pool decking, and decorative block walls were severely cracked, and it was determined that this condition was due to an abnormal settling and subsidence of the ground on which the house had been constructed. This settling caused and continues to cause door and window frames to fall out of square resulting in a poor fit and, in many cases, large gaps and along the window and door parameters. After Mr. Schneider purchased the property, Fitton, along with Fitton's father, both of whom resided next door to the property in question, assisted Mr. Schneider in making repairs to the property. Cracks were filled in with cement, plaster and caulking, and the property was painted which covered up the filled in cracks and gaps which had existed. When the repairs were completed, the property was put on the market with Fitton securing the listing. There is little evidence as to how the repairs were made to the property other than that the cracks were filled and painted. No effort was made to correct the soil conditions which underlay the problem. No evidence was produced to indicate whether the corrective actions taken by Mr. Schneider, along with the Fittons, was appropriate to correct problem causing the cracks or if filling was the appropriate method of correction. Also, it was not clearly established how much and of what nature the work was accomplished by Respondent, Fitton. Whereas he indicates his participation was limited to only carrying away trash and debris, Ms. Renshaw indicates he was actively engaged in actual repair work. Whatever the actual work involvement, it is clear that he knew of the condition of the house and was familiar with the steps taken to correct the deficiencies. In May, 1985, Yvonne L. and Lorraine Renshaw, sisters, were shown the property by Diane Y. Palcelli (Booth), a salesperson employed by a different realty company. The Renshaws made an initial offer of $96,000.00, and Ms. Palcelli transmitted the offer, through Fitton, (and Twitty & Co.), to Mr. Schneider who resided out of state. A series of proposals by both sides followed and ultimately, on June 1, 1985, the parties agreed upon a sales price of $106,000.00. After the sales price had been agreed upon and the contract for sale signed, during the interim period leading up to closing, which was held in late July, 1985, the Renshaws, along with their agent and friends, visited the property on numerous occasions even going so far as to commence decorative work to fix it up to their tastes. Also during this period, Fitton, who had done some work on the repairs to the property, advised his broker, Twitty, that there had been defects in the property and asked if it was necessary to disclose this. Mr. Twitty, who himself had, at this point, not seen the property, asked if the defects had been corrected, and when told that they had been, advised Fitton it was not necessary to make any further disclosure. During the course of their repeated visits to the property, the Renshaws noted some minor cracking which they brought to Fitton's and Daly's attention. Fitton mentioned this to Twitty who suggested they have someone out to look at them. Someone was called, reportedly an engineer, who looked at the cracks and agreed to fix them. Daly indicated insurance would cover the repairs and agreed to have the cracks repaired. They were. Ms. Palcelli, (Booth), also advised the Renshaws to have the property examined by their own expert to insure it was structurally sound. The Renshaws did not do this. The sale was closed on July 23, 1985 for the $106,000.00 purchase price and both Fitton and Twitty & Co. received their respective shares of the commission. Several months after the closing, the Renshaws noticed cracks beginning to open in the walls of the house and between the pool deck and the house wall. They contacted Ms. Palcelli, (Booth) who examined the property and then tried to contact Fitton. Both Fitton and Twitty disclaimed any responsibility for the damage. Thereafter, the Renshaws filed suit against Schneider, Daly, Fitton, Twitty and Twitty & Company in Circuit Court in Pinellas County alleging one Count of fraud and one Count of grand theft. On February 22, 1991, the Court entered its Order granting Defendants', (Respondents') Motion to Dismiss the Count alleging grand theft, but denied a similar motion relating to the fraud Count. That same date, the Court entered a Final Judgement concluding that the knowing representation the property was in "excellent" condition when they knew it was not, in an anticipation of making a profit on the sale, constituted fraud. Twitty was faulted for not having inquired of Fitton, his "novice employee", more thoroughly before advising him no disclosure to the buyers was necessary. Fitton is faulted by the Court for having: ... intentionally, knowingly and fraudulently misrepresented to the [Renshaws] the high quality, excellent condition and good value of the property, intending that the [Renshaws] would rely on those representations; [they] hid the true condition of the property from the [Renshaws] and induced them to make the purchase, believing that they were purchasing a quality property worth the price being asked. The Court also concluded that the [Respondents] were obligated to disclose to the [Renshaws] the information and knowledge which they had regarding the cracking and repairs. Fitton has moved for a rehearing on the basis that the property was described as excellent on the listing sheet by Mr. Schneider, not by him. However, he was obviously aware of the condition of the property from his frequent visits to the site while it was being readied for sale. In addition, the Judgement has now been appealed to the Second District Court of Appeals by Twitty and Twitty & Company, Ltd..
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered herein providing that: The salesman's license of Respondent, Lonnie A. Fitton, be reprimanded, and he be placed on probation, under such terms and conditions as may be stipulated by the Division, for a period of two years, and The licenses of Respondents, Thomas J. Twitty, Jr. and Twitty & Co., Ltd., be reprimanded and they be placed on probation, under such terms and conditions as may be stipulated by the Division, for a period of six months. RECOMMENDED this 21st day of March, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1608 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8. Accepted and incorporated herein. 9. Accepted and incorporated herein. 10. Accepted and incorporated herein. 11. First, second and fourth sentences accepted and incorporated herein. Third sentence modified to reflect that Fitton concealed but Twitty was culpably negligent in failing to disclose. FOR RESPONDENT, TWITTY AND TWITTY & CO. LTD.: 1. & 2. Accepted and incorporated herein. 3. Accepted. 4. Accepted. 5. Accepted and incorporated herein. 6. Accepted. 7. Accepted and incorporated herein. 8. 9. Accepted, but Twitty's agent, Respondent, Fitton, worked on and was familiar with the condition of the property prior to sale. Accepted. FOR RESPONDENT, FITTON: 1. Accepted and incorporated herein. 2. Accepted and incorporated herein. 3. Accepted. 4. Accepted except for the assertion that the individual who viewed the cracks was an engineer. There was no proof of this. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Dominic E. Amadio, Esquire 100 34th Street North, Suite 305 St. Petersburg, Florida 33713 Daniel J. Grieco, Esquire 19139 Gulf Blvd. Indian Shores, Florida 34635 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32801
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the real estate license of Keith Allen. DONE and ORDERED this 2nd day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Allan M. Parvey, Esquire Goldberg, Rubinstein & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902
Findings Of Fact Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11). Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year. DONE AND ENTERED this 18th day of February, 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 18th day of February, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William Grossbard, Esquire Suite 6175M 6191 Southwest 45 Street 6177 North Davie, Florida 33314 Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C 1125 Northeast 125 Street North Miami, Florida 33161 Lawrence J. Spiegel, Esquire Spiegel and Abramowitz Suite 380 First National Bank Building 900 West 49th Street Hialeah, Florida 33012 Mr. Gary Lee Sexsmith 321 Southwest 70t Avenue Pembroke Pines, Florida 33023 Mr. Guiseppe D. Bellitto 2635 McKinley Street Hollywood, Florida 33020 Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and Trustee of Select Realty, Inc. 321 Southwest 70th Avenue Pembroke Pines, Florida 33023 Mr. Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Dan Lee Isaacs is a real estate broker/salesman with the Petitioner, Key Realty, Inc. He seeks in this proceeding to have approved his dual licensure as a broker for Key Realty Management, Inc., as well as to retain his broker/salesman licensure with the Petitioner, Key Realty Inc. In his capacity as a broker/salesman for Key Realty Inc., he works under the supervision of Mr. Les Epperson, who is the licensed broker for that entity. Mr. Isaacs owns no stock in the corporation, Key Realty Inc. He does own stock and would be sole manager of the separate corporation known as Key Realty Management, Inc. Key Realty Management, Inc., is not affiliated in a subsidiary or other relationship with Key Realty, Inc., although there is some commonalty of ownership in that Les Epperson is a minority shareholder. The President and majority stockholder of Key Realty, Inc., Les Epperson, would have no part in the management of the operations of Key Realty Management, Inc. Mr. Isaacs desires, for personal and financial reasons, to remain active in the real estate sales field as a broker/salesman under the supervision of broker Epperson. He would, as sole manager and broker with Key Realty Management, Inc., engage in no sales activities, but rather solely in the management and supervision of various rental properties for clients of that firm. The two corporations maintain and would maintain separate accounting books and records; and, as pertinent, separate escrow and trust funds and accounts. It is to the advantage of both firms, both financially and in terms of legal liability, to maintain these escrow funds and accounts separately because of the financial and operational differences characteristic of a real estate management firm, as compared to a purely real estate sales operation as conducted by Key Realty, Inc. The Petitioner has complied with all requirements for qualification as a real estate broker pursuant to Chapter 475, Florida Statutes, and the rules promulgated thereunder. In October, 1980, the Petitioner applied for the above described dual licensure. The Respondent denied the application on the basis that an individual cannot be a broker and a broker/ salesman simultaneously. The principals of both corporations, Mr. Epperson and Mr. Isaacs, have submitted the affidavits and agreements pursuant to Rule 2IV-6.06, Florida Administrative Code, attesting to the absence of any conflict of interest stemming from Mr. Isaacs' licensure as a broker of the separate corporation and that both of them agree and consent to the dual registration. There is no dispute between the parties that in essence a "salesman" and a "broker/salesman" perform some of the same real estate transaction functions under the supervision of a licensed broker, for instance, the depositing with the broker of any escrow or other funds involved in a given real estate transaction for appropriate disposition and disbursement by the broker and acting in all other pertinent operative capacities under the supervision of a broker, rather than independently. The parties also did not dispute that the real basis for the "broker/salesman" designation in the licensing scheme in Florida is to allow a licensee to demonstrate to the public that a broker/salesman is clothed with additional internship, educational and experience credentials and is thus possessed of a greater degree of expertise in real estate transactions and operations than one licensed as a salesman. The Respondent however, in its argument during and subsequent to the hearing, apparently takes the position that a "broker/salesman" and a salesman perform identical functions; and, therefore, are legally to be considered as the same type of license and licensee, for purposes of establishing its legal position that since a salesman's license may not be issued to a person registered as an active broker unless the active broker's license is surrendered that neither may a person be dually licensed as both a "broker/salesman" and a broker.
Recommendation In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the pleadings and arguments of counsel, it is; therefore, RECOMMENDED that a Final Order be entered granting Dan Lee Isaacs a license as an active real estate broker for, and on behalf of, Key Realty Management, Inc., and allowing his retention of licensure as a broker/salesman with Key Realty, Inc. RECOMMENDED this 15th day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 15th day of September, 1981. COPIES FURNISHED: W. Kirk Brown, Esquire Post Office Box 4075 Tallahassee, Florida 32303 Randy Schwartz, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Phyllis I. Reaves is now and was at all times material to these proceedings, a licensed real estate salesman in the State of Florida having been issued license number 0351816. Annette J. Ruffin is now and was at all times material to these proceedings, a licensed real estate broker having been issued license number 0076385. From May 2, 1983 to October 18, 1984, Respondent Phyllis I. Reaves was licensed and operating as a real estate salesman in the employ of Respondent Annette J. Ruffin, as broker, c/o International Investment Development Center, Belleair, Florida or Century 21 A Little Bit Country, Brandon, Florida. At all time material hereto, Respondent Phyllis I. Reaves was a licensed mortgage broker in the State of Florida. DOAH CASE NO. 85-1008/1138. COUNT I No evidence was presented concerning the allegations in Count I.. COUNT II No evidence was presented concerning the factual allegations of Count II. COUNT III No evidence was presented concerning the allegations of Count III. COUNT IV On June 10, 1983, Respondent Reaves entered into a real estate sales contract with Emmett K. Singleton, as seller to purchase certain real estate through the use of a land trust. The sales contract listed a total purchase price of $67,000. C-21 A Little Bit Country was listed on the contract as escrow agent of the binder deposit. The property had an existing first mortgage of approximately $33,854. Respondent Reaves agreed to assume the new mortgage and requested that Mr. Singleton obtain a second mortgage in the principal amount of $26,400. Reaves agreed to assume this second mortgage amount while allowing Mr. Singleton to keep the proceeds. Mr. Singleton agreed that the balance of the sales price would be paid via a purchase money mortgage to Respondent Reaves in the principal amount of $9,643.99. Respondent Phyllis I. Reaves executed a Hold Harmless and Indemnity Agreement which read as follows: "Phyllis Reaves does agree to hold Emmett K. Singleton harmless and does idemnify him against any future liability or losses related to the mortgage on subject property at 1912 Hastings Drive, Clearwater, Florida." The sales transaction closed on July 7, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $1,955. The contract provided that the "listing agent agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." The purchase money mortgage note was actually signed by Michael R. Fisher, as trustee, and not by Respondent Reaves. Respondent Reaves requested that Mr. Singleton give her the mortgage payment booklets and she would assume and pay off the existing and second mortgages. Singleton trusted Reaves and relied upon her statements that she would do as she promised. Respondent Reaves failed to assume and pay the notes and mortgages and thereby caused the seller to become delinquent with the lenders. After closing, Respondent Reaves, acting as the owner, obtained tenants for the property and collected rental payments. Respondent Reaves solicited and obtained $3,000 in connection with a lease/option agreement. The lease/option agreement provided that the sales price of the home would be $78,000 in three years. The rent would remain at $495 per month for three (3) years. The agreement further provided that $3,000 per year would be paid for three (3) years which would reflect a total down payment of $9,000. This down payment was considered the "option consideration." The agreement provided that one third of the option money would be returned if the option were not exercised. The tenants paid Respondent Reaves a total of $3,000 of the option consideration. The renters became concerned when they began to receive notices from Freedom Mortgage Company stating that certain mortgages on the home were overdue. The renters did not exercise the option to buy the home. The renter requested, but did not receive, $1,000 of the $3,000 option consideration back from Respondent Reaves. COUNT V On July 6, 1983, Respondent Reaves entered into a real estate sales contract with Stephen B. Barnes, as seller, to purchase certain real estate through the use of a land trust. The property was not listed", but a broker from Tam-Bay Realty approached Barnes and stated that he had a buyer. The purchase and sale agreement provided for a total purchase price of $91,000. The agreement listed "C-21 A Little Bit Country" as escrow-agent for the binder deposit. In addition, the purchase and sales agreement provided that: "Listing agent Tam-Bay agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." The seller agreed that he would allow Respondent Reaves to assume the existing mortgage of approximately $52,990. Mr. Barnes then agreed to obtain a second mortgage in the amount of $18,925. The seller agreed that the balance of the sales price would be paid via a purchase money mortgage in the principal amount of $16,670.91 to be paid by Respondent Reaves. In addition, Mr. Barnes obtained a home improvement loan in the amount of $4,900. According to the agreements between Respondent Reaves and Mr. Barnes, Mr. Barnes was to keep the money obtained by the second mortgage and the home improvement loan. Respondent Reaves agreed to assume the existing mortgage, the second mortgage and the home improvement loan. Respondent Reaves advised Mr. Barnes to state to the lender that the purpose of the loans were for home improvements. Respondent Reaves executed a hold harmless and indemnity agreement which stated as follows: "Phyllis Reaves does agree to hold Stephen. B. Barnes harmless and does indemnify him against any future liability or losses related to the mortgages on property at 13222 - 88 Place North, Seminole, Florida." The sales transaction closed on August 10, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $2,513.45 and a mortgage brokerage fee of $946.25. Respondent Reaves failed to assume and pay the notes and mortgages and thereby caused the seller to become delinquent with the lenders. COUNT VI On September 3, 1983 Respondent Reaves entered into a real estate sales contract with Floyd and Christine Erwin, as sellers, to purchase certain real estate through the use of a land trust. The contract concerned Floyd and Christine Erwins' home located at 2805 Candlewood Drive in Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $53,000. The agreement listed C-21 A Little Bit Country as escrow agent for the binder deposit. The agreement further provided that the "listing agent agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves agreed to assume the existing mortgages of $16,766.29 and $17,457.94. In addition, the sellers agreed to obtain a new mortgage in the principal amount of $4,900 and a $1,500 personal loan. Upon the advice of Respondent Reaves, the sellers stated to the lender that the purpose of the loans were for home improvements. Respondent Reaves and the sellers agreed that the sellers would keep the money obtained by the loans and that Respondent Reaves would assume the mortgages and make all of the required loan payments. The sellers agreed that the balance of the sales price was to be paid via a purchase money mortgage, payable by Respondent Reaves, in the principal amount of $12,375.77. Respondent Reaves executed a hold harmless and indemnity agreement which stated as follows: "Phyllis Reaves does agree to hold Floyd S. Erwin and Christine E. Erwin harmless and does indemnify them against any future liability or losses related to mortgages or liens on the subject property at 2805 Candlewood Drive, Clearwater, Florida." Floyd and Christine Erwin's home was listed with a broker, and the Erwins understood that Reaves was not their agent. Respondent Reaves told the Erwins that she was representing "some investors." The purchase money mortgage note was actually signed by "Michael R. Fisher, as trustee and not personally." Respondent Reaves made some payments on the purchase money mortgage note which was signed by Michael Fisher. The sales transaction closed on September 23, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $1,555.50. Respondent Reaves failed to assume and pay the mortgages and notes. Respondent Reaves has not made the payments due on the mortgages and notes and has caused the Erwins to become delinquent with their lenders. COUNT VII The evidence presented concerning Count VII consisted solely of documentary evidence. For reasons enumerated in the Conclusions of Law section, infra, the documents alone are insufficient to establish the basis of any offense. Therefore, a discussion of those documents would serve no useful purpose. COUNT VIII On October 16, 1983, Respondent Reaves entered into a real estate sales contract with Patricia and William Willis as sellers, to purchase certain real estate through the use of land trust. The contract concerned the Willis' home located at 417 North Missouri Avenue, Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $54,000. The agreement listed C-21 A Little Bit Country as escrow agent for the binder deposit. The agreement further provided that the listing agent ". . . agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves and the Willis' agreed that Respondent would assume the existing mortgage of $15,396.52. The sellers agreed to obtain the new mortgage in the principal amount of $34,100. The sellers agreed that the balance of the sales price would be paid via a purchase money mortgage in the principal amount of $8,898.45 to be paid by Respondent Reaves. Respondent Reaves agreed to assume the existing mortgage and the new mortgage in the amount of $34,100 and make all of the required loan payments. Respondent Reaves advised the Willis' to state to the lender that the purpose of the $34,100 mortgage loan was for home improvements. The Willis' applied for the loan but refused to state that the purpose of the loan was for home improvements. Respondent Reaves executed a hold harmless agreement which stated as follows: "Phyllis Reaves does agree to hold Patricia L. Carrah, a/k/a Patricia L. Willis and William Willis harmless and does idemnify them against any future liability for losses related to any mortgages or liens on the subject property " The sales transaction closed on November 23, 1983 and Respondent Phyllis Reaves received a real estate brokerage commission in the amount of $3,213 and a mortgage brokerage fee of $2,216. Respondent Reaves failed to assume the notes and mortgages and thereby caused the sellers to become delinquent with their lenders. COUNT IX No evidence was presented concerning the allegations of Count IX. COUNT X No evidence was presented concerning the allegations of Count X. COUNT XI No evidence was presented concerning the factual allegations of Count XI. COUNT XII No evidence was presented concerning the factual allegations of Count XII. COUNT XIII No evidence was presented concerning the factual allegations of Count XIII. No evidence was presented concerning the factual allegations of Count XIV. COUNT XV on January 13, 1984, Respondent Reaves entered into a real estate sales contract with Clifford and Virginia Miner, as sellers, to purchase certain real estate through the use of a land trust. The contract concerned the Miner's home located at 1247 Burma Avenue, Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $62,000. The agreement listed "C-21 A Little Bit Country" as escrow agent for the binder deposit. In addition, the agreement provided that the listing agent ". . . agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves and the sellers agreed that Respondent Reaves would assume the existing mortgage of $34,424.82. Respondent Reaves advised the sellers to obtain a $20,000 second mortgage that she would also assume. The sellers were to obtain the mortgage and keep the money as their equity, and Respondent Reaves was to assume the mortgage and make the payments. The sellers agreed that the balance of the sales price was to be paid via a purchase money mortgage in the principal amount of $6,865.33, payable by Respondent Reaves. Respondent Reaves promised the sellers that she would make all the required loan payments and assume the mortgages. Respondent Reaves executed a hold harmless agreement which stated as follows: "Phyllis Reaves does agree to hold Clifford S. Miner and Virginia N. Miner, his wife, harmless and does idemnify them against any future liability or losses related to any mortgages or liens on the subject property . . . ." The purchase money mortgage note was actually signed by Michael R. Fisher, "as trustee and not personally." Respondent Reaves told Mr. Miner that the hold harmless agreement provided additional assurance that she would personally assume all of the mortgage and loans. The sales transaction closed on January 31, 1984, and Respondent Phyllis Reaves received a real estate brokerage commission in the amount of $1,823.25 and a mortgage brokerage fee of $949.48. Respondent Reaves failed to assume and pay the notes and caused the Miners to become delinquent with their lenders, requiring them to "catch up" on the delinquent loan. COUNTS XVI, XVII AND XVIII. The evidence presented concerning Count XVI, XVII and XVIII consisted solely of documentary evidence. For reasons enumerated in the Conclusions of Law section of this Recommended Order, the documents alone are insufficient to establish the basis of any offense. Therefore, a discussion of those documents would serve no useful purpose. COUNT XIX During the later part of 1984, an investigator, representing the Department of Professional Regulation, went to speak to Mrs. Ruffin at her "Little Bit of Country" office concerning this case. The investigator requested that he be provided with the records from all of Respondent Reaves' transactions. Respondent Ruffin stated that she was unaware of the particular real estate transactions in question, but that she would check and provide the records at a later date because she was in the process of moving the location of her office. After subpoena was served, Respondent's counsel provided one of the documents in question. COUNT XX Respondent Ruffin employed Respondent Reaves as a salesman. Respondent Ruffin thought of Respondent Reaves as "an independent contractor." Respondent Reaves decided on her own hours and took care of her own transportation. Respondent Ruffin and Respondent Reaves were on an 85%-15% split fee arrangement. Respondent Ruffin knew that Reaves was interested in "buying a lot of property." Respondent Ruffin was basically aware of the method that Respondent Reaves was using to obtain property. Respondent Ruffin did not feel that the method was wrong, however, she did ask Respondent Reaves to leave employment after she received many calls complaining about Respondent Reaves and information that Respondent was in a "tight financial situation." Respondent Ruffin admitted that she had very little time to provide assistance or guidance to Respondent Reaves. DOAH CASE NO. 85-2454 COUNT I There was no evidence presented concerning the factual allegations of Count I. COUNT II There was no evidence concerning the factual allegations of Count II. COUNT III On October 2, 1984, an investigator, representing the Department of Professional Regulation, went to speak with Respondent Ruffin at her office. The investigator requested certain records relating to Respondent Reaves' transactions concerning the charges herein. Respondent Ruffin stated that she was unaware of the particular real estate transactions in question, but that she would check and provide the records at a later date because she was then in the process of moving her office. After a subpoena was served, Respondent Ruffin's attorney provided one of the documents in question. COUNT IV There was no evidence presented concerning the factual allegations of Count IV of DOAH Case No. 85-2454.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent Phyllis I. Reaves' license as a real estate salesman be revoked; and, RECOMMENDED that Respondent Annette J. Ruffin be issued a written reprimand and assessed an administrative fine of $500.00. DONE and ORDERED this 27th day of March, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1986. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 8 and 11. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 15 and 16. Partially adopted in Finding of Fact 17. Matters not included therein are rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 20. Adopted in Findings of Fact 20 and 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. Adopted in Findings of Fact 26 and 27. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Findings of Fact 36 and 38. Adopted in Finding of Fact 40. Adopted in Finding of Fact 47. Adopted in Finding of Fact 49. Adopted in Findings of Fact 49 and 50. Adopted in Finding of Fact 55. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Adopted in Finding of Fact 57. Adopted in Finding of Fact 58. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Gerald Nelson, Esquire 4950 West Kennedy Boulevard Tampa, Florida 33809 E. A. Goodale, Esquire 14320 Indian Rocks Road Largo, Florida 33540 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
