Findings Of Fact Respondent Gene Lawrence (Lawrence) is president of Respondent Home Owner's Equity Fund, Inc. (Homeowners) and has been for six years. He is not licensed as a real estate broker or salesperson in Florida and has not been so since 1987 or 1988. He has never worked actively in the real estate business. At no time has Homeowners ever employed a licensed real estate broker, nor was it itself licensed to engage in real estate brokerage activities. Homeowners was formed in 1986 or 1988. Lawrence is the sole owner of Homeowners. From December 1986 through December 1993, Homeowners engaged in business involving the purchase and sale of single-family homes, employing from 1-3 employees in its principal place of business in Ft. Myers. In general, Homeowners purchased homes and sold them to buyers, receiving installment payments for the purchase price. In most cases, Homeowners used contracts for deed or sometimes a lease-purchase arrangement. Homeowners located buyers through newspaper advertising. The advertisements stated that a person could own his own home instead of paying rent for about the same monthly payment. Advertisements, mostly in a shopper- type newspaper, ran almost continuously. One of Homeowner's ads, under the "For Sale by Owner" category, states: HAVE YOU HAD TROUBLE GETTING A MORTGAGE? CAN YOU AFFORD $500 OR MORE PER MONTH? WE CAN PUT YOU IN A HOME OF YOUR CHOICE! INVESTORS WILL BUY THE HOME & HOLD THE MORTGAGE. NO QUALIFYING. 332-0043 Another Homeowner ad, under rental properties, states: WOULD YOU RATHER OWN THAN RENT? FOR THE SAME MONTHLY PAYMENTS AND DEPOSIT YOU CAN PURCHASE YOUR OWN HOME! VARIOUS PRICES - SIZES - AREAS. NO BANKS, NO CREDIT CHECKS, NO HASSLES. CALL 332-0053 TODAY!! After meeting a customer in the office, Lawrence or another employee of Homeowners would determine if the customer's desires were reasonable. If so, the customer's profile, including needs and ability to pay, would be filed. If the customer was interested in obtaining the services of Homeowners, the customer had to pay a fee at the initial meeting. The fee was usually $125. The service provided by Homeowners was to offer to sell to the customer homes that it already owned or, more often, homes that it was willing to purchase. If the customer became interested in a house that Homeowners was unwilling to purchase, Homeowners would not assist the customer in any way. Following the initial visit, Homeowners would give the customer a list of homes that Homeowners was considering buying. At the same time, Homeowners did a credit check on the customer. The fee paid by the customer entitled him to these services from Homeowners for 120 days. Homeowners typically purchased homes with seller- provided financing, usually with a low down payment. The homes were of a price that Respondents' customers could afford, given their modest means. The price range was typically $50,000 to $60,000. In Lee County, where Respondents focused their efforts, a house in that range might have two or three bedrooms. If the customer purchased a home from Homeowners, it would credit his fee against his first month's payment. Otherwise, the fee was nonrefundable. When Homeowners purchased a home, Lawrence typically handled the negotiations with the listing agent. Lawrence or one of Homeowners' employees then negotiated the sale to the customer. On November 15, 1991, Curtis McRee gave Lawrence a $750 down payment on a mobile home and lot in N. Ft. Myers. At the same time, he and his wife, Lynda L. McRee entered into a contract for deed with Homeowners under which Homeowners would convey "by a good and sufficient deed" fee simple title, clear of all encumbrances, if the McRees paid an additional $24,250 with interest at an annual rate of 10.5 percent through monthly payments of $386. At this rate, 92 monthly payments would be required to satisfy the obligation. The contract for deed involves a mobile home lot, but omits any mention of a mobile home. On the same date, Respondents acquired the same property from a third party. The purchase money mortgage note was for $19,750, bearing interest at the annual rate of 10 percent, and payable by 84 monthly payments of $327.87. When the McRees missed some payments, Respondents failed to make payments to their mortgagee, which foreclosed on the mortgage and retook title to the property. On May 18, 1992, Homeowners acquired three lots from a third party for $30,319.80. On the same date, Homeowners entered into a contract for deed with Delfino and Candelaria Lopez under which Homeowners would convey fee simple title to the three lots, free of all encumbrances, by a "good and sufficient deed," if they paid $39,950 at 10.5 percent annually by monthly payments of between $375 and $396. On May 25, 1992, Laura A. Ortiz paid Homeowners a fee of $120. The receipt form states that Ms. Ortiz acknowledges that the fee "is collected in advance from clients interested in purchasing residential property, owned, or to be owned by [Homeowners]." The form adds that, during the next 120 days, Homeowners will offer Ms. Ortiz homes with monthly payments of less than $500 and Homeowners will offer owner financing at 10.5 percent annually. The form concludes by noting that the fee is nonrefundable, but will be credited toward the first monthly payment. On June 25, 1990, Homeowners acknowledged receipt from Ms. Ortiz of $500 as an "escrow deposit" for property located at 15779 Treasure Island. It is unclear whether Homeowners had a contract with the owner of 15779 Treasure Island when Homeowners accepted Ms. Ortiz's $500 escrow deposit. However, a dispute developed between Homeowners and the owner over liability to repair a roof, and Homeowners could not offer the property to Ms. Ortiz, who instead rented another property owned by Homeowners at a monthly rental of $500. Based on Lawrence's affidavit, Ms. Ortiz paid Homeowners a deposit of $4000, of which only $3500 was refunded when the deal fell through. The $500 withheld was to pay rent that Ms. Ortiz owed. On April 19, 1993, Rosa Saez paid Homeowners the $125 fee and entered into a receipt form of the type described above. Ms. Saez found a house that she liked and paid Homeowners a deposit of $1000. When some problem arose preventing Homeowners from purchasing the property that she wanted, Lawrence returned the $1000 deposit by giving Ms. Saez a personal check dated July 8, 1993. There is no evidence connecting Humberto Zabala or Sandra Aparicio to Homeowners or Lawrence. In December 1993, Homeowners stopped operating due to the pending disciplinary investigation and poor health of Lawrence. In March 1994, Lawrence began operating a similar type of business in his own name. He claims that he is not a broker and does not need to be licensed because he does not put buyers and sellers together nor does he charge a commission. Lawrence claims to sell only the homes that he owns and does so as a "social service for people," which he has continued to offer, despite doing no better than breaking even, due to a "dogged determination, a perseverance, perseverance and tenacity."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Counts IX and X of the Administrative Complaint, finding each Respondent guilty of four counts of engaging in real estate brokerage activities without a license, and imposing an administrative fine of $5000 against Gene Lawrence and $5000 against Home Owners Equity Fund, Inc. ENTERED on August 24, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on August 24, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence. Typically, Homeowners did not acquire the real property until a customer had expressed interest in the property. 5: adopted or adopted in substance. 6-8: rejected as unsupported by the appropriate weight of the evidence. 9-11: adopted or adopted in substance. 12: rejected as unsupported by the appropriate weight of the evidence. 13-14: adopted or adopted in substance. 15: rejected as irrelevant. 16-18: adopted or adopted in substance. 19: rejected as unsupported by the appropriate weight of the evidence. 20-21: rejected as irrelevant. COPIES FURNISHED: Attorney Theodore R. Gay Department of Business and Professional Regulation 401 NW 2nd Ave. Suite N-607 Miami, FL 33128 Harry Blair Blair & Blair 2138-40 Hoople St. Ft. Myers, FL 33901 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
Findings Of Fact In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure. Question number 62 reads as follows: The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF: NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE. Possible answers to question number 62 were as follows: I only. II only. I and III only. I, II and III. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the Petitioner as previously determined. DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows: Rejected as unnecessary. Included in findings 5, and 7. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced. 7. Rejected as argument. Respondent's Proposed Findings The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows: 1.-5. Rejected as conclusions of law. 6. Included in findings 8, 9, and 10. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Phillip I. Salerno 11812 Timbers Way Boca Raton, Florida 33428 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges in the Administrative Complaint be DISMISSED. DONE and ENTERED this 1st day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1982.
The Issue Whether the real estate license of respondent should be revoked or suspended for operating as a broker while registered with the petitioner as a salesman, in violation of subsections 475.01(3) - 475.25(1)(d), 475.42(1)(b), and 475.42(1)(e), Florida Statutes. Neither respondent nor any representative in her behalf appeared at the hearing. Notice of the hearing was provided the respondent by the petitioner through U.S. registered mail on April 12, 1977. Respondent acknowledged receipt of the notice on April 18, 1977. (Petitioner's Exhibit 1) By correspondence to petitioner, dated April 23, 1977, which was received on April 27, 1977, respondent requested a postponement until two of her former employers were subpoenaed for the hearing. She also mentioned in her letter that she had been unable to locate the address of a third former employer. In fact, two of the individuals had already been subpoenaed by petitioner to testify at the hearing, and on May 2, 1977, petitioner's investigator attempted to deliver a subpoena for the third person to the respondent at her home after calls to her listed telephone number had not been answered. Further attempts to locate the respondent on that day were without avail. (Petitioner's Exhibit 2, Testimony of Greene) The request for continuance was not brought to the hearing officer's attention by either party until May 2, 1977, at which time petitioner's counsel advised him of the request and that respondent could not be located on that date. At the commencement of the hearing, after being advised in the premises, the hearing officer determined that respondent had received adequate notice of the hearing and that, not having been informed that her request for a postponement had been granted, it was incumbent upon her to be present at the hearing either to pursue her request or defend her interests, if she so desired. There being no apparent justifiable cause for her absence, the matter was conducted as an uncontested proceeding, pursuant to Rule 28-5.25(5), F.A.C.
Findings Of Fact Respondent is now and was at all times alleged in the administrative complaint a registered real estate salesman employed by Happy Home Hunters, Inc., a broker corporation. (Petitioner's Exhibit 4) In the spring of 1974, Doris Espinosa a registered real estate broker, was working with respondent at a firm named Home Locators, in Miami, Florida. Respondent requested that Espinosa join her in a new firm that was to be financed by one Chester Kaye. A corporation, Happy Home Hunters, Inc., was thereafter formed with Espinosa as president and active firm member. George Girard was an officer of the corporation, also. Espinosa was with the firm only approximately fifteen days. Neither Kaye nor respondent was an officer of the corporation. The firm engaged in the listing and rental of apartments as its primary business at 6730 Biscayne Boulevard, Miami, Florida. Both Espinosa and respondent endeavored to secure listings of rental apartments and then locate tenants from whom a fee was obtained. Both could countersign checks of the firm and together they handled the financial matters. Kaye was seldom present at the office. (Testimony of Espinosa) On April 24, 1974, the firm applied for registration with petitioner, and listed David G. Weiner as president and active firm member, and George Girard as secretary-treasurer. Girard is respondent's husband. Weiner was paid a fee of $100.00 per month to serve as broker for the firm. He served in this capacity for several months and visited the office three or four times for two or three hours each time to "make sure everything was run according to the rules and regulations " of petitioner. However, he did not sign checks, hire or fire sales personnel, handle any of the financial matters, place advertisements or receive any accounting as to the operations of the business. All such matters were handled either by respondent or Kaye. However, Kaye was seldom in the office. Respondent served as sales or office manager, and, in fact, supervised the business operations, although the final decisions were made by Kaye. (Testimony of Weiner, Petitioner's Exhibit 3) On April 25, 1974, respondent submitted a Business Information Form for membership in the Better Business Bureau of South Florida. On the form, she listed herself as treasurer of the corporation, and in the accompanying letter requesting a representative of the bureau to visit the offices, she stated "I try very hard to run a good business." On July 1 and July 8, 1974, in responding to complaints filed against the firm with the bureau, respondent listed her title as "Owner." (Testimony of Smathers, Petitioner's exhibits 5, 6)
Recommendation It is recommended that petitioner issue a written reprimand to respondent Mollie Lee Warrington for violation of subsection 475.42(b), Florida Statutes, as authorized by subsection 475.25(1)(d), Florida Statutes. DONE and ENTERED this 31st day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mollie Lee Warrington 990 Northeast 189th Terrace Miami, Florida 33138 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. PROGRESS DOCKET NO. 3141 DADE COUNTY MOLLIE LEE WARRINGTON, DOAH CASE NO. 77-275 Respondent. / At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Winter Park, Florida, on July 20, 1977, Present: Maggie S. Lassetter, Vice-Chairman Levie D. Smith, Jr., Member Appearances: Richard J. R. Parkinson, Attorney for Plaintiff No Appearance for Defendant. This matter came on for Final Order upon the Plaintiff's Administrative Complaint, the Hearing Officer's Recommended Order and the Plaintiff `s Exceptions thereto, together with the record and oral argument of counsel for the Plaintiff, and the Commission having fully reviewed the entire record, the Findings of Fact and the Conclusions of Law in the Recommended Order, and the Commission being fully advised in the premises, finds: 1. That according to the records of the Commission, Defendant Mollie Lee Warrington is registered with the Commission as a non-active real estate salesman, 990 Northeast 89th Terrace, Miami, Florida 33138. 2. That the Findings of Fact as set forth in the Recommended Order of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted as the Findings of Fact of the Commission. 3. That the Plaintiff's Exceptions to Paragraph 6 of the Conclusions of Law as set forth in the Recommended Order of the Hearing Officer are well taken and should be sustained. 4. That the Conclusions of Law, with the exception of Paragraph 6, as set forth in the Recommended Order of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted as the Conclusions of Law by the Commission. 5. That the Plaintiff's Exceptions to the Recommendation of the Hearing Officer are well taken and should be sustained. IT IS THEREUPON ORDERED that the Findings of Fact and Conclusions of Law, with the exception of Paragraph 6, as set forth in the Recommended Order of the Hearing Off icer be, and they are hereby, adopted as the Findings of Fact and Conclusions of Law of the Commission. IT IS FURTHER ORDERED that Defendant Mollie Lee Warrington be, and she is hereby, adjudged guilty of violating Subsection 475.42(1)(b) and Subsection 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint. IT IS FURTHER ORDERED that for such violations, the registration of Defendant Mollie Lee Warrington be, and the same is hereby, suspended for a period of one (1) year, said suspension to become effective upon the effective date of this Order as provided by law. DONE and ORDERED at Winter Park, Florida, this 25th day of July, 1977. Maggie S. Lassetter Vice-Chairman Levie D. Smith, Jr. Member I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to Mollie Lee Warrington, Defendant, 990 Northeast 89th Terrace, Miami, Florida 33138, by United States registered mail this 25th day of July, 1977. C. B. Stafford Executive Director NOTICE TO DEFENDANT: This Order shall become effective on the 24th day of August 1977. However, you have a right of review by an Appellate Court, if you desire. Please comply with this Order. We are including an envelope for your convenience in surrendering your registration certificate. RJRP/sl
The Issue Whether Respondents' licenses as real estate brokers should be suspended or revoked, or the licensees otherwise disciplined, for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated September 28, 1981. This proceeding is based on an administrative complaint filed by Petitioner, Board of Real Estate, alleging that Respondents, while engaged in a rental service business which advertised and sold rental property information or lists, for an advance fee to prospective lessees, utilized a contract or receipt agreement which included language defining when a "rental has been obtained" that was contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and that therefore Respondents had violated Subsection 475.453 and 475.25(1)(b), Florida Statutes. It further alleged that Respondents failed to refund 75 percent of an advance fee to specific prospective tenants as required by Subsection 475.25(1)(e), Florida Statutes and therefore constituted a violation of Subsection 475.25(1)(d), Florida Statutes. At the commencement of the hearing, the parties submitted a Proposed Stipulation of facts which was accepted by the Hearing Officer and constitutes the Findings of Fact hereinafter. No witnesses testified at the proceeding nor were any exhibits entered in evidence other than the four exhibits attached to the Stipulation. (Exhibit 1)
Findings Of Fact Respondent Jack Braunstein is a licensed real estate broker having been issued license number 0146924. The last known address of this Respondent is 916 North Federal Highway, Fort Lauderdale, Florida 33304. Respondent Rent Aid, Inc., is a licensed corporate real estate broker having been issued license number 0133234. The last known main office address of Rent Aid, Inc., is 916 North Federal Highway, Fort Lauderdale, Florida 33304. At all times material herein Respondent Braunstein was the sole active broker of and for Respondent Rent Aid, Inc., doing business at the corporate main office located in Fort Lauderdale, Florida. As said active broker, Braunstein was responsible and liable for the acts and/or omissions of the associates of Rent Aid, Inc. performed in the scope of their employment; and was responsible and liable for the acts and/or omissions of Rent Aid, Inc. At all times material herein, Respondent Rent Aid, Inc., was engaged in a full service real estate brokerage business which included representing potential buyers and sellers of real property and potential landlords and tenants with regard to rental properties. As part of the business Rent Aid, Inc. entered into contracts with prospective tenants for an advanced fee, as shown by Exhibit "A" to the Complaint and incorporated herein by reference. That the contract or receipt agreement forms provided by the Respondents, have inserted therein additional language as to specifically stating that "a rental has been obtained when company provides a guaranteed available rental unit upon the terms specified and requested by member. On or about September 16, 1980 Jan Spear and Deborah Nigro entered into the contract, an accurate copy of which is appended to the Complaint as Exhibit "A", with Rent Aid, Inc. That under the terms of the contract, Respondent had the discretion to refuse any and all refunds if they had shown to the prospective tenant an available rental unit which met the terms specified and requested by the prospective tenant, even if the prospective tenant declined to rent said unit and demanded a refund of the paid fee within the required time frame. That Respondent's practice was to refuse demands for refund made where, in Respondent's opinion, a bona fide effort had been made to obtain a rental, which efforts had been unsuccessful through no fault of Respondent's. Jan Spear and Deborah Negro made written demand upon Respondent's for a partial refund of the fifty ($50) fee which they had paid Respondent's pursuant to the contract. This demand was made within thirty days of the contract date as shown by therefund refusal dated October 12, 1980, attached to the Complaint as Exhibit "B" and incorporated herein by reference as true and accurate. The contract utilized by Respondent's does not strictly conform to the refund required by Rule 21V-10,30 in that the conditions under which a refund would be payable are restricted beyond the scope of said Rule, and SS 475.453(1), Florida Statutes. Respondent utilized the Contract form in question in reliance upon advice received from his prior counsel, Gregory Jones, as shown by a letter dated April 1, 1980. A true and accurate copy of which is attached hereto as Exhibit "C". Sal Carpino, attorney for the Department of Professional Regulation, had been provided with a copy of the form utilized by Respondent and had approved the format of said form without approving a discrepancy of the language in question in this proceeding, to wit: "a rental has been obtained with company (Rent Aid, Inc.) provides a guaranteed available rental unit upon the terms specified and requested by members." In response to this proceeding, Respondent has made full and complete refund to Jan Spears and Deborah Nigro and has agreed to voluntarily stop all use of the Contract form in question, and use only such a form as strictly complies with 475.453(1) and Rule 210-10.30 and to furnish a copy of said form to the Department conformance with said Rule."
Recommendation That the Board of Real Estate issue a private reprimand and impose a $100 fine against Respondents Jack Braunstein and Rent Aid, Inc. for violation of Subsections 475.25(1)(d) and (e), Florida Statutes. DONE AND ENTERED this day of March, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 John P. Gaudiosi, Esquire 3801 North Federal Highway Pompano Beach, Florida 33064 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C.B. Stafford, Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801
The Issue The issues are whether Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes, or obstructed or hindered any person in the performance of his or her duties under Chapter 475, Florida Statutes, in violation of Section 475.25(1)(i), Florida Statutes; or failed to preserve and make available to Petitioner all books, records and supporting documents, in violation of Rule 61J2-14.012(1), Florida Administrative Code, and thus Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be assessed.
Findings Of Fact Respondent was known as Phyllis Mae Wilson, but is now known as Phyllis Mae Perry due to a change in marital status. Since 1987 or 1988, Respondent has been licensed as a Florida real estate broker, holding license number 0462610. From October 1, 1998, through June 4, 2001, Respondent registered with Petitioner her "location address" as 2200 East Oakland Park Boulevard, Fort Lauderdale. From October 1, 1994, through January 9, 2001, Respondent registered with Petitioner her "mailing address" as 1940 Northeast 55th Court, Fort Lauderdale. As part of Petitioner's rotating schedule of office inspections, Monroe Berger, Petitioner's Investigation Specialist II, sent a letter to Respondent dated May 24, 1999, at 1940 Northeast 55th Court, Fort Lauderdale. The letter, which was sent by regular mail, states that Petitioner wishes to conduct an office inspection and escrow review, pursuant to cited statutes and rules. The letter warns: "Please be advised, you must respond to my request within 15 days of your receipt of this letter. Failure to do so may result in you being charged with hindrance in the enforcement of chapter 475, Florida Statutes, and administrative action may be taken against your real estate license." When Mr. Berger did not receive a response to the May 24 letter, he requested, by letter dated June 10, 1999, from the United States Postal Service a confirmation of the Northeast 55th Court address or, if applicable, a new address for Respondent. After the United States Postal Service verified that the Northeast 55th Court address was a good address for Respondent, Mr. Berger sent a second letter to Respondent at the incorrect address of Northeast 55th "Street," not "Court." Dated September 24, 1999, this letter advises that "a complaint has been filed against you"--evidently, by Mr. Berger. This letter gives Respondent 20 days to respond to the complaint. At some point, Respondent received this letter or a copy of it, but the record does not permit a finding, by clear and convincing evidence, as to when Respondent received this letter. Respondent did not respond to the September 24 letter. The only information that Petitioner received from Respondent following the letters of May 24 and September 24, 1999, was a form that Respondent submitted, on January 18, 2000, to advise Petitioner of a change in licensing status of a salesperson working for Respondent. Although not intended to advise Petitioner of any changes in Respondent's location or mailing address, the form contains a new address for Respondent: 3466 Northeast 12th Terrace, Oakland Park. However, in no way does the form respond to the letters of May 24 and September 24, 1999. Although Mr. Berger did not testify at the hearing, as he is now retired, his supervisor at the time testified that Mr. Berger did not pursue the investigation more vigorously on the advice of the supervisor, who counseled patience. Respondent claims that a series of personal and business matters effectively prevented her from attending to such regulatory matters as updated her licensing information and seizing the initiative in response to her early contact with Mr. Berger. During this period of time, Respondent was not active in real estate, but was busy with another business that she and her husband were operating. Respondent was also deterred from producing her real estate records because she knew that a leaky roof had caused them considerable water damage. At the time of her first contact with Mr. Berger, during the period relevant to this case, Respondent had no listings or pending sales, and she so informed Mr. Berger. Respondent had known Mr. Berger and his previous supervisor, whom she had sometimes called when she had had a regulatory question. During the period relevant to this case, Respondent spoke with Mr. Berger four times. For the most part, they agreed that Respondent would try to reassemble whatever undamaged real estate records that she could find. By the summer of 2000, they had agreed that Mr. Berger would send her a questionnaire, which, when completed by Respondent, would confirm the absence of any active escrow account and would obviate the necessity of an office inspection and audit, except possibly to confirm that Respondent had properly posted a sign and license. However, Mr. Berger never sent Respondent the questionnaire, and, after health issues arose, Respondent was again prevented from pressing the matter to a conclusion. Undoubtedly, Respondent did not respond as completely as she should have to the May 24, 1999, letter and to the September 24, 1999, letter, whenever she received it. Obviously, though, the Administrative Law Judge has credited her version of conversations with Mr. Berger in the absence of Mr. Berger's testimony. Although Respondent's testimony concerning Mr. Berger's casual approach to this matter is possibly inconsistent with the September 24 letter, the misaddressing of the letter precludes a determination as to when Respondent received the letter and, thus, a finding of inconsistency between Respondent's version of events and the apparently toughened approach adopted by Mr. Berger in the September 24 letter. At times, Respondent's credibility seemed strained, but these occasions were limited to the seemingly endless accumulation of excuses as to why she may not have received a letter or notice or could not have dealt more directly with this matter at the time. More importantly, Respondent's description of the extent to which Mr. Berger casually pursued the investigation is consistent with the considerable period of time that passed during the investigation without formal action, the prior relationship that Respondent had developed with Mr. Berger and his previous supervisor, and the low risk that Respondent posed to the public, given that her real estate practice was nearly inactive in 1999. For all of these reasons, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to meet any unconditional demands from Petitioner. Thus, Petitioner has failed to prove that Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes; obstructed or hindered a person in discharging his duties under Chapter 475, Florida Statutes; or failed to keep and make available to Petitioner the books, records, and documents required by law to be kept and produced upon demand.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 8th day of February, 2002, in Tallahassee, Leon County, Florida. ___ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2002. COPIES FURNISHED: Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robyn M. Severs, Senior Attorney Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Room N308 Orlando, Florida 32802 Phyllis Mae Perry 1940 Northeast 55th Court Fort Lauderdale, Florida 33308
The Issue Whether Respondent, Jason Dwight Walker, prepared a preconstruction appraisal report that was in violation of the Uniform Standards of Professional Appraisal Practice (USPAP), and thus section 475.624(4), Florida Statutes, and Florida Administrative Code Rule 61J1-9.001, as alleged in the First Amended Administrative Complaint and, if so, the sanctions to be imposed.
Findings Of Fact The Department is the agency of the State of Florida having authority, among its other duties and responsibilities, to regulate the practice of real estate. The Division of Real Estate is a legislatively-created division of the Department. The Board is established within the Division of Real Estate and is vested with the authority to administer chapter 475, Part II, Florida Statutes, and to enforce the provisions thereof. Respondent holds a license as a state-certified residential real estate appraiser, No. RD 3588. On or about June 20, 2012, Respondent contracted to perform a preconstruction appraisal report for a residential home (the Proposed Home) to be constructed at 14682 Northwest Pea Ridge Road, Bristol, Florida. The prospective owners were Thomas Ryan Cherry and Jessica Rogers Cherry (the Owners). The Proposed Home’s internal area was to be 3,458 square feet in size. The issue that forms the basis for the Administrative Complaint is the amount of that area that was to be built-out as the Gross Living Area (GLA) of the home. Petitioner has alleged that Respondent failed to consider the entire eight-page construction contract that governed the construction of the Proposed Home. As will be discussed in greater detail herein, the contract between the building contractor, Stephen Newman, and the Owners consisted of four numbered pages, the fourth page of which contained only a statutorily-required notice regarding construction defect claim procedures and the signature blocks. The contract also included a separately styled, numbered, and signed five-page Description of Materials. Page five of the Description of Materials included a provision that “[s]econd story will be framed and left unfinished. Owner to complete at future date. One 36” exterior door to be installed at head of stairs.” Respondent was retained to perform a preconstruction appraisal by the appraisal management company, StreetLinks Lender Solutions (StreetLinks), which was acting as the agent for First Federal Bank of Florida (Lender). The Lender was the client for the appraisal, but Respondent’s selection was performed at the sole discretion of StreetLinks. The appraisal agreement prohibited Respondent from contacting the Lender prior to delivery of the final appraisal report, or from attempting to obtain value or loan information from the Owners. Thus, of the parties to financing, StreetLinks was the sole allowable point of contact. The only plausible inference is that the information provided to Respondent in aid of the appraisal was provided by StreetLinks, or at StreetLinks’ direction. Respondent was provided with the first three pages of the contract. The Contract provided that the Proposed Home was to be constructed “from Owner provided plans,” that “[t]he owner provided plans and Builder’s Description of Materials are part of this contract,” and that “[o]wner agrees to not inhabit the dwelling until all construction is complete, certificate of occupancy is obtained, and all funds to builder have been paid.” Respondent included the construction contract provided to him in his work file. Respondent was provided with two floor plan sheets that depicted the two-story home at issue in its fully built-out and completed form. The floor plans included the layout of the Proposed Home, and general depictions of fixtures, counters and cabinets, lighting, fans and wiring. Respondent included the floor plan sheets in his work file. In order to confirm the nature of the building to be constructed, Respondent called the contractor, Mr. Newman, and had a conversation with him that lasted approximately 30 minutes. Mr. Newman testified that he provided Respondent with the dimensions of the second floor and the location of the various rooms, information that Respondent sought in order to confirm information contained in the floor plans. Respondent made an accurate sketch of the configuration of the second floor based on his conversation with Mr. Newman. Furthermore, access to the attic was described on Respondent’s specification sheet notes as “scuttle,” and not “stairs,” information that could only have been gathered from either Mr. Newman or the floor plans. Mr. Newman did not have a firm recollection of whether he provided Respondent with information regarding the materials, appliances, and finishes to be used in the Proposed Home. Nonetheless, a preponderance of the evidence, including Respondent’s testimony and contemporaneous notes of the conversation, indicates that Mr. Newman provided Respondent with that information, though the evidence also suggests that Mr. Newman understated the high quality of some of the finishes. At no time during the conversation did Mr. Newman indicate that the second floor was not going to be finished as depicted in the plans, and would instead be considered “attic space.” Mr. Newman denied that he had any responsibility to advise Respondent that it was not his intent to build-out the second floor in accordance with his described configuration, despite the fact that floor plans depicting a completed second floor were sent to the Owners under his signature, and were thereafter provided to Respondent. It is simply not credible that such would not have been disclosed over the course of a lengthy and in-depth conversation under the excuse that “it’s not my job to,” unless there was an intent to convince Respondent that the Proposed Home would be built in accordance with the plans. Respondent included specification sheet notes and his second floor sketch from his conversation with Mr. Newman in his work file. Using the plans, contract, and other information as to the property independently obtained by Respondent, and taking into account the information received from Mr. Newman, Respondent developed and communicated an appraisal report, No. 7393A, with an effective date of June 29, 2012. The appraised value of the Proposed Home was $250,000. That amount was consistent with and supported by properties of a size comparable to a 3,458 square foot home in the area. The house was constructed in accordance with the contract and Description of Materials. The second floor was framed and floored, and plumbing was stubbed out, but it was not finished so as to be considered GLA. The house as constructed contained a GLA of 2,014 square feet.1/ However, due to the very high quality (and expense) of cabinets, flooring, and fixtures, the cost of construction of the 2,014 square foot GLA home was $232,645, an amount very close to the $250,000 appraised (and financed) value. It is surprisingly (or not so surprisingly) serendipitous that the cost of the smaller home was so close to the appraised value of the larger home. It seems more than a happy coincidence that the Owners and the contractor had sufficient financing to account for the luxurious finishes. Respondent was not retained to do the draw inspections or the final inspection. Thus, he could not have known that the home as constructed was not consistent with the plans provided to him by StreetLinks, or with the description of the Proposed Home as discussed with Mr. Newman. On or about June 14, 2013, the Lender filed a complaint with the Division of Real Estate alleging misfeasance in the preparation of the appraisal.2/ The documents submitted to the Division with the complaint did not include the two floor plan sheets that had been provided to Respondent, but did include the contract signature page and the Description of Materials that had not been provided to Respondent. By letter dated August 14, 2013, the Lender, through its counsel, advised Respondent that it believed Respondent to have negligently prepared the appraisal, with the negligent act being Respondent’s failure to recognize that the second floor of the home was to remain unfinished. The letter provided, in part, that: Via the appraisal, you represented that you reviewed the construction contract between the builder and the Property owner. I have attached a copy of that contract for your ease of reference as Exhibit “B” hereto. However, the construction contract clearly indicates that the second story of the home would be left unfinished. Your appraisal failed to recognize this fact and now the home, as built, is nowhere near your appraised value. The letter did not include Exhibit “B.” Respondent kept the letter and other communication with the Lender in his work file. On September 4, 2013, Respondent sent an email to the Lender’s counsel, asking that “Exhibit B” of the Lender’s letter be provided to him. In response, the letter with all of the exhibits was sent to Respondent by email that same day. Exhibit “A” of the Lender’s letter consisted of a Certificate of Compliance from the Lender’s agent, StreetLinks, and a complete copy of Respondent’s appraisal report. Exhibit “B” of the Lender’s letter included the same three-page construction contract that was contained in Respondent’s work file. It contained the same letter from Mr. Newman to the property owners. Finally, it contained floor plans for the home but, surprisingly (or not so surprisingly), it included only the floor plan sheet for the first floor of the Proposed Home. The Lender’s Exhibit “B” did not include the floor plan for the second floor of the Proposed Home that had been originally provided to Respondent by or on behalf of its agent, StreetLinks. Exhibit “B” of the Lender’s letter to Respondent did not include the Description of Materials with the provision that the second story of the home would be left unfinished. At the hearing, Petitioner offered what was represented to be the complete contract as an exhibit. The contract offered was four pages and, but for the statutorily required notice regarding construction defect claim procedures and the signature blocks, was identical to the contract in Respondent’s workfile. The exhibit also included the separately styled and signed Description of Materials. As set forth herein, the Description of Materials was not provided to Respondent by or at the direction of StreetLinks, or otherwise. In analyzing the issues in this case, the undersigned paid close attention to the opinion of Petitioner’s expert witness, Mr. Rogers. Mr. Rogers opined that Respondent should have engaged in greater inquiry that would have revealed that the second floor was to remain unfinished, and as a result the GLA was stated, melodramatically, to be “tragically overstated.” In his testimony, and his report which was received in evidence, Mr. Rogers noted that Mr. Newman’s cover letter to the Owners referenced a description of materials, estimate, and legal description. He noted that “it is actually atypical for the owner or lender to supply all of the information about the subject property the appraiser will need to produce credible assignment results.” In instances of insufficient documentation, Mr. Rogers testified that among the options for dealing with that occurrence is for the appraiser “to go find that documentation and complete the assignment.” Mr. Rogers believed that Respondent should have made “a request to the lender” for the referenced materials, apparently being unaware that the terms of Respondent’s engagement with StreetLinks prohibited such contact. He further opined that Respondent’s communication with Mr. Newman “was insufficient . . . to an accurate description of the proposed home,” and that “[e]xpansion of the conversation with the builder . . . was necessary.” How he was able to determine the sufficiency of a conversation to which he was not privy was not explained, and his opinion in that regard is given no weight. Based on the totality of the evidence in this case, Respondent obtained information that was reasonably calculated to identify the relevant characteristics of the subject property. The contract, the complete floor plans for the first and second floors of the home, and the lengthy conversation with the builder were sources that were objectively reasonable and reliable, and consistent with USPAP and the Department’s statutory and regulatory authority. Mr. Rogers acknowledged that complete floor plans are an appropriate source for information regarding the characteristics of an appraised property. However, he discounted Respondent’s reliance on such floor plans in this case. His explanation for doing so was not compelling or persuasive, and is not accepted. Rather, the information used by Respondent, as described herein, was sufficient to identify the extent and character of the proposed improvements.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Business and Professional Regulation, Real Estate Appraisal Board, enter a final order dismissing the First Amended Administrative Complaint. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2016.
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issue herein the Petitioner, Division of Real Estate, and the Florida Real Estate Commission were the state agencies responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate broker with license number 0414476. Respondent was operating as a real estate broker and operated a real estate brokerage under the name Roney Realty located at 424 Beach Drive Northeast, Number 205, in St. Petersburg. In early 1995, Kathleen M. Mitchell, a single mother and licensed practical nurse, while attending a garage sale, noticed a two bedroom house for sale at 805 59th Street South in Gulfport and called the broker's telephone number shown on the sign. Respondent was the broker listed. On the basis of that telephone call, Respondent and Ms. Mitchell met at the house, owned by Respondent's sister. At the time, Ms. Mitchell advised Respondent that she had credit problems and was burdened with a previous FHA mortgage which was in default. In response, Respondent urged her not to worry and assured her he could get her financing even though she had undergone a prior bankruptcy. He also indicated that the selling price for the house was variable, depending on financing and the amount of the down payment. Ms. Mitchell contends that Respondent indicated to her that he would represent both buyer and seller in a dual agency arrangement, which he got her to acknowledge in writing, and claimed he would not take a commission on the sale. The initial contract signed in this case, however, lists a commission of $1,925.00 to be paid by the seller. This inconsistency was not explained. As a result of the initial negotiations which began in January, 1995, Ms. Mitchell signed a contract for the purchase of the property on February 13, 1995, which, she claims, was to be effective in March, 1995. This agreement, reflecting a sales price of $55,000 also indicates that Ms. Mitchell had made a $200.00 cash down payment, and called for an additional payment of $800.00 within 5 days of signing and an additional $650.00 at closing, to include buyer's closing costs and prepaid items or prorations. This left a balance to be financed of $53,350. There were no other handwritten clauses placed on the contract form. Ms. Mitchell paid the initial $200.00 and agreed to pay the additional $800.00 when she moved in. On the basis of that contract and the deposit made, Ms. Mitchell was allowed to move into the house. Approximately two weeks later, when it became obvious that her financing was going to be a problem, Mr. Roney brought a second contract to the house for her to sign. At this time, Mr. Roney suggested that while the parties were waiting for her financing to be approved, Ms. Mitchell could rent the house for $500.00 per month. Ms. Mitchell agreed to do this if all the defects in the house, which she had identified and reported to Respondent, were fixed. She claims that he verbally agreed to fix everything and she thereafter signed the second contract, which is undated as to signature, but which bears an effective date of April 20, 1995. The second contract reflects a purchase price of $56,650, a deposit of $2,832.50, and a balance to finance of $53,817.50. Ms. Mitchell admits to having made the $200.00 down payment, and it is not clear whether she also paid the $800.00, but at one point in her testimony indicated that is all she paid by way of down payment. She has no idea where the figure of $2,832.50 comes from. Yet, at another point in her testimony, she claims to have given Mr. Roney $1,650.00 on March 1, 1996, which money he put into Stewart Fidelity Title Company's escrow account. The contract also reflects that the deposit is being held in escrow by Stewart Fidelity Title Co. No information was presented as to the current state of the deposit. This contract shows substantial hand-written modification to the standard contract clauses which clearly reflect that changes were made on July 7, 1995, and were "added after signing." However, there are substantial, modifications to paragraph 21 of the contract form, "additional terms", which are confusing as to when they were added and what they mean. For example, one added clause calls for the buyer to make monthly payments of $600.00 until closing ($100.00 per month credited back to buyer at closing). Another provides that the buyer accepts the property as is from day of possession and agrees to maintain the property until closing. A third indicated that the seller agrees to credit $650.00 toward buyer's costs upon closing, and a fourth states that if the buyer cannot obtain a mortgage within one year of possession, the seller may convert the agreement to a lease. The difficulty in interpretation of the above rests in the fact that arrows pointing to various of the comments are not defining in their application. For example, one arrow comes from the word "closing" down the side of the paper into the Acceptance/Rejection section where is stated, "as is meant landscaping [sic]." Another arrow points to the word "may" in the last addition and reflects, "7-7-95 added." Ms. Mitchell adamantly contends that when she signed the second contract, none of the hand-written additions were on it. Mr. Roney admitted as much at hearing, but no informationwas presented to indicate if the additions were agreed to by Ms. Mitchell at any time. She contends that when she saw those post-signing additions, she took the document to her mortgage person who directed her to contact Respondent and stop further proceedings. When Ms. Mitchell did that, she claims, she wastold by Mr. Roney not to talk to her mortgage man again, and that his, Mr. Roney's, mortgage broker would handle the obtaining of her mortgage from then on out. When Ms. Mitchell recounted those instructions to her original mortgage broker, he advised her to contact Respondent's escrow agent, get her deposit back and cancel the contract. Respondent admits to having requested Ms. Mitchell use a different mortgage broker but asserts this was because her broker was not having any apparent success in getting her qualified. Ms. Mitchell lived in the house in question for two months before she moved out. Upon the advice of an attorney, she claims, she paid no rent while she occupied the premises. While she occupied the property, she paid $250.00 to have it appraised by a state certified residential real estate appraiser who opined that as of May 9, 1995 the property was valued at $49,500. In the addendum to the appraisal report, the appraiser stated: The roof has active leaks and improperly installed areas; The front soffit has loose conditions; The electrical system has unsafe wiring and improper size fuses; The heating and AC units are not operating properly ("No source of heat"); The plumbing system has some deficiencies and possible leaks; The pool is in need of "Major Repair", including repair of leaking conditions at the main drain and tiles; termite damage was noted; the water heater needs repair (or replacement), and it is exposed to weather conditions; Window and door screens are missing; The lawn sprinkler is damaged and partially disassembled The storage shed has rust conditions. Though at hearing Respondent attempted to dismiss this appraisal as being based on the home inspection reports done at Ms. Mitchell's request previously and given the appraiser, and not his personal inspection, a review of the document clearly indicates the conditions noted above were determined from review of that report "and/or observation by the appraiser." Ms. Mitchell experienced first hand many of the problem areas noted in the appraisal report. When she mentioned to Respondent that the screen door was missing, he reportedly told her it wasn't necessary. When she complained to Respondent that she had no hot water for several days, he sent over a repairman who ultimately corrected the problem. The repairman's statement, dated "May, 1995", reflecting a charge of $445.00 for his service, indicates he repaired a water leak on the hot water heater; unblocked a restriction in the hot water supply pipe; and replaced defective control knobs on the shower. He also cut the side of the kitchen counter to fit in a new stove and delivered a replacement refrigerator with an ice maker and reconnected the water line to it. This latter installation was the result of Ms. Mitchell's continuing complaint that the refrigerator did not work for quite a while which resulted in her losing a substantial amount of perishable food. The first time that happened, she though it might be her fault and she replaced the lost food. However, when it happened again, she complained to Respondent and he told her to get it fixed. She did, at a cost to her of $100.00, which Respondent did not pay back. Finally, a refrigerator repair man was sent to the property on both April 4 and April 19, 1995. He finally recommended the unit not be repaired but replaced. This was done. When Ms. Mitchell complained to Respondent that the heating and air conditioning unit in the living room did not work, and that the bedroom unit did not heat, she admits that Respondent had a repairman come out and look at the unit. Though she claims the repairman told her it would take $483.00 to repair it, she appears to have confused the appliances, as the repairman's statement, dated April 19, 1995, refers to an estimated cost of $483.00 to replace the compressor on the refrigerator, not the heater/air conditioner. There is no evidence to indicate how the problem with those units was resolved. Ms. Mitchell contends that when she first saw the swimming pool, before she contracted to buy the house, it was clear and the pump was running. When she thereafter heard a noise in the pump, in February, 1995, before she moved in, she reported this to the Respondent. Nothing was done about it. After she moved in, the pool rapidly became unusable. The pump motor was inoperative and the water turned green. Ms. Mitchel claims she called Respondent almost daily about the pool. He told her his sister had the motor removed for repairs and he would get it back. The motor was subsequently returned, along with the pool equipment which had been removed, but the pool leaked, requiring her to add water every day, and she could not keep the water clear. In late April, 1995, a pool man was sent to the property who, according to Ms. Mitchell, indicated that there was a need to replace loose tiles and mastic because of the age of the pool, and a leak at the main drain. It is not clear from the evidence presented if these repairs were made. When the appraisal report was rendered, showing a fair market price considerably less than what she had contracted to pay, Ms. Mitchell advised Respondent on several occasions that she to cancel the contract. On May 2, 1995, after she had seen an attorney and another real estate broker, she wrote to Respondent requesting either that he refund the deposit money she had placed with him and reimburse her in the amount of $500.00 for her personal expenses, in which case she would vacate the property within one week of receipt of the money, or return her deposit within one week, in which case she would vacate the property by June 1, 1995. In either case, she indicated she would pay no more rent. In that regard, it appears she had paid no rent up to that time, though she had agreed to pay rent in the event they could agree upon the terms of a contract and the property was repaired. She claims she did not expect to live in the property rent free, but believed that what she had paid out in repairs was fair rent for her occupancy. No clear total figure for what she paid out was provided. In response, Ms. Mitchell received a letter from the Respondent in which he demanded payment of the rent due. Thereafter, on June l, 1995, Ms. Mitchell received a second letter from the Respondent in which he stated he assumed she had agreed to deduct the amount due for rent from the deposit money she had placed with him and which he held in escrow. According to Respondent's calculations, Ms. Mitchell owed $1,271.56 in back rent after crediting her with $100.00 of the $600.00 per month rent payment she was to make. When this $1,271.56 was deducted from the $1,603.45 escrow balance held by him, $331.89 would be left in the escrow account. Respondent gave her the choice of doing that or of paying what was owed in case, leaving the entire escrow account untouched. He advised her she must make her choice and advise him and the escrow agent within forty-eight hours. Respondent did not satisfactorily explain his calculations at hearing. From the state of the evidence presented, it was impossible for the undersigned to determine exactly how much money Ms. Mitchell paid by way of deposit, rent, or repairs. Between the receipt of Respondent's first and second letters, Ms. Mitchell spoke with him about the condition of the house and what she wanted to do with regard to it. At no time did she authorize Respondent to make any deduction from the amount in escrow. In the interim, she began to look for another house and to seek alternative funding. She also tried to contact Respondent but she was unable to do so, reaching only his pager. Finally, she received a three-day notice dated June 20, 1995 to pay the rent due or vacate. In response, she wrote an undated letter to Respondent in which she said she was sending $1,000.00 to pay $500.00 rent for both May and June, 1995, but neither mailed the letter nor sent the money. Thereafter, she received a second three day notice dated June 30, 1995, directing her to pay the rent due or move out. This notice was left in her mail box by the Respondent. She neither paid the rent nor moved out at that time. Ms. Mitchell finally moved out of the property in issue on July 18, 1995 and thereafter, on a weekly basis, either verbally or in writing, demanded return of her deposit. She did not get it back. Mr. Roney's account of the beginning of the parties' relationship is consistent with that of Ms. Mitchell, except that Ms. Mitchell initially indicated the property could not be worth more than in the mid-forty thousand dollar range. In response, Respondent claimed to have done a market analysis on the property which supported the asking price, and because his sister had put a lot of money into the property, it could not be sold for a price as low as even in the high forty thousand dollar range. It would appear from the independent appraisal done of the property, the true value was closer to Ms. Mitchell's estimation rather than Respondent's. Nonetheless, Ms. Mitchell liked the property and agreed to buy it at the asking price, after she had looked it over with a contractor friend of hers. Respondent admits that Ms. Mitchell was forthright with him in disclosing her financial problems. She told him of her bankruptcy of several years previous, and in response to his questioning, noted several other problems, none of which, by her account, were her fault. When Ms. Mitchell called Respondent on February 13, 1995, indicating she was ready to sign, he referred her to a mortgage company which he felt could help her. Based on what information Ms. Mitchell had provided, Respondent had been told that her financial problems were "fixable". As a result, the first contract was signed and the financing process initiated. On March 18, 1995, Ms. Mitchell called Respondent and indicated she wanted to move into the house prior to closing because her current landlord would neither acknowledge nor fix defects in her property, and she had to get out. Therefore, on or about March 20, 1995, Respondent re-wrote the contract and requested she use another mortgage broker as a condition of taking possession prior to closing. Respondent claims that the seller's disclosure as to the condition of the property was accurate but Ms. Mitchell wanted an independent inspection done to which Respondent agreed. He insisted, however, that if she wanted to move in before closing, she would have to take the property "as is." He advised Ms. Mitchell that his sister had not lived in the property for a year. It was not clear from the evidence presented whether the property was vacant for that entire year or whether it had been rented out. Ms. Mitchell moved in after signing the second contract. Respondent claims Ms. Mitchell called almost daily with some complaint or other and he would have each one fixed. Finally, he met with her and the handyman and they went around to check everything out. She seemed satisfied. Nonetheless, after that Ms. Mitchell called to complain about the swimming pool. Respondent's sister and the handyman both went to the house to explain how to work the filtration system. To insure that there was no leak in the pool, Respondent gave Ms. Mitchell the name of the pool company which had serviced the pool for ten years so that if anything went wrong, she could contact them directly to have it checked and get instruction. While Respondent contends the pool company report indicated no leak and no major problems, Ms. Mitchell wrote on the invoice submitted by the repairman dated April 25, 1993, "... notified me and Mr. Rony [sic] of need to replace loose tiles and main drain leak and re- mastic due to extreme age of pool." Unfortunately, no direct evidence was presented which resolves the apparent inconsistency in the evidence. Mr. Roney claims he tried to remedy any problem Ms. Mitchell had with the house. For example, on April 3, 1995, she called to complain about the refrigerator. On April 4, 1995 he told her to call whomever she wanted, and if the estimate were reasonable, she could deduct the repair charge from the rent. If the charge were estimated to be major, she was instructed to call back. When she called and said the charge would be $100.00, he authorized it. However, a week later, Ms. Mitchell again called and complained about the refrigerator and Mr. Roney replaced it the next day. The problems with the refrigerator are documented by independent evidence of record. The replacement there was admitted by Ms. Mitchell. Respondent asserts that the delinquency notices and track toward the closing. When he found out that Ms. Mitchell was trying to get an appraisal done on the property, he tried to tell her that an appraisal would be done as a part of the mortgage process, but she wanted her own. The results of that independent appraisal were discussed previously. Sometime thereafter, Ms. Mitchell told Respondent she wanted out of the contract. The seller agreed to let her out if Ms. Mitchell would pay some rent for the period she occupied the property. As a result, Respondent tried to get her to pay. When she would not, he sent the eviction notices. Respondent admits he did not receive $2,853.00 in deposit money from Ms. Mitchell. That figure cited was the result of her representations to him that she could come up with it. When the contract was signed, she gave him a check for a part of it and said she'd come up with the balance, but she never came up with the full amount. Any deposit payments made by Ms. Mitchell were deposited with Stewart Title Company where it remains. It is impossible to determine how much was paid as deposit by Ms. Mitchell and how much, if any as rent. Respondent asserts Ms. Mitchell never made any claim to him for return of her deposit. Any claims for return were all made to Stewart Title. Ms. Roney, the owner, did not want to lease the property or sell it on a lease option. She wanted to sell it outright because she needed the money for other investments. She agreed to a lease-purchase arrangement only because the mortgage broker assured her Ms. Mitchell could clear her credit and the sale could go through. She also agreed because Ms. Mitchell had had the property inspected and appeared to be satisfied with its condition. Ms. Roney claims she had no problems with the pool when she lived there and also claims that since the property has been sold, the new owners have not contacted her regarding any problems with the pool. She would not approve a refund of deposit under the conditions of this dispute. Respondent contends there have been no complaints filed against him for the practice of his real estate profession in the 15 years he has been licensed. No evidence of prior misconduct was shown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent not guilty of misrepresentation and breach of trust in a business transaction and dismissing the Administrative Complaint. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 this 13th day of December, 1996. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Paul H. Roney, Jr. 424 Beach Drive Northeast, Suite 205 St. Petersburg, Florida 33701 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether the Petitioner lawfully revoked John Brotherton’s exemption for the repair or replacement of a dock in submerged lands and whether Respondent timely requested a hearing.
Findings Of Fact Intervenor is the successor by merger with Bankers Real Estate Investment Company. References to Intervenor shall include Bankers Real Estate Investment Company. Intervenor submitted to condominium ownership the property that, following condominium construction, has become known as Sportsman’s Riverside Townhomes Association (Sportsman’s). This property borders the Homosassa River. Subject to the legal effect of the transactions described below, Sportsman’s owns the riparian rights to the area upon which a dock owned by Respondent is located. By warranty deed dated February 1, 1984, David J. Steward acquired Sportsman’s condominium unit five. The deed contains no reference to a dock, but conveys only unit number five and an undivided share in the common element. However, by letter to Mr. Steward dated June 19, 1984, the Chairman of Bankers Real Estate Investment Corp. agreed that, in consideration of Mr. Steward’s execution of amended condominium documents, the developer “will” assign Mr. Steward more parking spaces and “[y]our boat dock will remain permanently assigned to your unit as a limited common element reserved for use by your unit.” On October 12, 1990, David J. Steward conveyed Sportsman’s condominium unit number five to Respondent. The deed conveyed “items of personal property including the private dock thereon.” On April 20, 1993, Respondent applied to Petitioner for an exemption to repair the dock that Mr. Steward had sold him. The dock had been damaged in a storm the prior month. The application includes a copy of the warranty deed to Respondent. The deed reveals that Respondent owns only a single unit of a condominium project, but the application does not name the condominium association as an adjacent property owner. Respondent checked the form on the application stating that he was the record legal owner of the “property on which the proposed project is to be undertaken.” The application states that the dock is a floating dock for the private docking of Respondent’s boat. The application reports that the dock is 128 square feet in area. By letter dated June 1, 1993, Petitioner granted Respondent the requested exemption from permitting, “[b]ased solely upon the documents submitted to the Department ” The letter adds that the exemption constitutes “authorization from the Board of Trustees Pursuant to a Memorandum of Agreement entered into on November 23, 1992.” The letter warns that Petitioner may revoke the exemption determination “if the basis for the exemption is determined to be materially incorrect . . ..” The Memorandum of Agreement dated November 23, 1992, (MOA) is between the predecessor agency to Petitioner and the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). In the MOA, the Board of Trustees authorizes the use of state-owned submerged lands for all activities (subject to irrelevant exceptions) for which Petitioner grants exemptions from environmental resource permitting. By letter dated April 24, 1996, Petitioner informed Respondent that it had learned that Respondent had supplied “materially incorrect” information in the application submitted with the April 20, 1993, letter. The April 24 letter explains that Respondent asserted in the application that it was the record owner of the property, but the warranty deed revealed that he was not. The April 24 letter gives Respondent 21 days from receipt within which to file a petition requesting a formal administrative hearing. Respondent timely filed his request for a hearing. The facts do not establish a waiver of Respondent's right to demand a hearing. Petitioner did not rely on Respondent’s representation that he was the owner of the property on which the dock was located. The warranty deed attached to the application clearly revealed that Respondent owned only a condominium unit and undivided interest in the common element. Petitioner also knew that the state owned the submerged land at the dock.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the proceeding seeking the revocation of the exemption from the Department and consent from the Board of Trustees. ENTERED in Tallahassee, Florida, on June 10, 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 10, 1997. COPIES FURNISHED: Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford, II, Esquire Mail Station 35 3000 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John Brotherton 6304 North Otis Avenue Tampa, Florida 33604 Robert G. Southey, Esquire Delano & Southey Post Office Box 15707 St. Petersburg, Florida 33701-5707 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
