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
Findings Of Fact Petitioner is the state licensing regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto. During times material, Respondent was a licensed real estate salesman in Florida, having been issued license number 0319604. The last license issued Respondent was as a salesman, c/o Referral Realty Center, Inc. (herein Referral) at 8974 Seminole Boulevard, Seminole, Florida. On December 1, 1988, Respondent entered into a management agreement with Madeira Beach Yacht Club Condominium Association, Inc. (herein Madeira) to serve as property manager. Respondent assumed the property manager position with Madeira in June of 1987, which was formalized by a written agreement in December 1988. While acting as property manager for Madeira, Respondent handled the rental transactions of individual units for owners. In return for her services, Respondent was compensated based on a commission of 10% to 20% of the monthly rental. On at least one occasion, Respondent rented an individual unit for owners for a term greater than one year. Respondent was aware that she was renting the one unit for a term in excess of one year. Respondent signed leases for units belonging to individual owners as the rental agent or representative. Respondent used the commissions that she received to defray operating expenses for her rental business such as cleaning fees for the units and for personal compensation. Respondent maintained a bank account at the First Federal of Largo Savings and Loan Association entitled "Dorothy K. Livingston Rental Account" for her rental business. Deposits to that account were rental monies received from tenants from which disbursements were made to unit owners and the remaining commissions went to Respondent as compensation. The rental account maintained by Respondent was neither an account with her employing real estate broker, nor was it an escrow account. Respondent placed security deposits that she received from tenants in the referenced rental account that she maintained. Respondent did not inform her employing broker of the receipt of security deposits nor did she discuss with her employing broker any of her activities involving rental of units for owners at Madeira. However, there is credible testimony evidencing that her broker was knowledgeable of Respondent's activities relative to her rental of units for owners. During May 1989, Respondent placed her real estate license with Referral Realty Center (Referral) as her employing broker. She did so in order to receive payment for referring prospects to Referral. On or about May 22, 1989, Respondent entered into an independent contractor agreement with Referral. That agreement provided in pertinent part that: Independent contractor agrees that Independent contractor will not list any real estate for sale, exchange, lease or rental... . Independent contractor agrees to refer all prospective clients, customers, buyers and sellers of which Independent contractor becomes aware to the Center... . Independent contractor agrees that so long as this Agreement is in force and effect the Independent contractor will not refer any prospective seller or buyer to another real estate broker... . 9. Independent contractor agrees to act, and to represent that he or she is acting solely as a referral associate of the Center... . While employed by Referral, Respondent also received commissions from individual unit owners at Madeira. During the time when Respondent had her license listed with Referral, she also received commissions from Referral for prospects she generated while renting units for owners and acting as property manager at Madeira. Respondent received a copy of a letter from attorney R. Michael Kennedy, addressed to J.L. Cleghorn of Building Managers International, Inc., dated September 5, 1989. In that letter, attorney Kennedy expressed his opinion that condominium or cooperative managers are exempted from the licensing provisions of Chapter 475, Florida Statutes, and that receipt of a percentage of rental proceeds would not be precluded even if the manager was salaried. The Kennedy letter erroneously states support for attorney Kennedy's opinion by Alexander M. Knight, Chief of the Bureau of Condominiums, and Knight so advised attorney Kennedy of that erroneous support by a subsequent letter to him. It is unclear to what extent Respondent apprised attorney Kennedy as to the specifics of her activities and to what extent she relied on his opinion prior to engaging in her property manager's rental and referral activities. (Petitioner's Exhibit 7.) Respondent did not seek advice from Petitioner as to whether her activities fell within the guidelines of Chapter 475, Florida Statutes. Respondent is familiar with the statutory definitions of a broker and salesman and what activities constitute brokerage and sales activities. During times material, Respondent's employing broker, David Hurd, was a licensed real estate broker in Florida, and the broker of record for Referral for procuring prospects and making referrals of real estate activities. Employment under an independent contractor agreement is considered employment under Chapter 475, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,500.00, issue a written reprimand to her, place her license on probation for a period of one (1) year with the further condition that she complete 60 hours of continuing education. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jerry Gottlieb, Esquire GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto Respondent James M. O'Nan was a licensed real estate broker in the state of Florida having been issued License No. 0222587. At all times material hereto Respondent International Real Estate Consultants, Inc., was a corporation registered as a real estate broker in the state of Florida having been issued License No. 0222586. At all times material hereto Respondent O'Nan was the qualifying broker for and president of Respondent International Real Estate Consultants, Inc. On or about May 29, 1984, Respondents solicited Dr. Murray Heiken to invest in a limited partnership for the purpose of acquiring real property located in Miami at South Dixie Highway and Southwest 67th Avenue to be used as the site for a bank. Respondents represented in that solicitation that all monies would be placed into an interest-bearing escrow account. The minimum investment solicited by Respondents was $28,000. On or about June 6, 1984, Murray and Rosalyn Heiken gave Respondents $28,000 to be placed in Respondents' escrow account. On or about September 25, 1984, Respondents again solicited Dr. Murray Heiken and Rosalyn Heiken regarding the sale of the Nautilus Hotel in Miami Beach. On or about October 1, 1984, Dr. Murray Heiken, Rosalyn Heiken, and Dr. Bruce Heiken paid $14,000 to Respondents toward the Nautilus Hotel purchase. On or about February 25, 1985, Respondents informed Dr. Murray Heiken and Rosalyn Heiken that the Nautilus Hotel transaction had been terminated. Respondents offered a new project and requested an investment of $24,000 from the Heikens. Dr. Murray Heiken paid $24,000 to the Respondents. On or about February 24, 1986, Respondents notified the Heikens that the other transaction did not close. The Respondents stated that all deposits would be refunded. On or about June 23, 1986, Respondents notified Dr. Murray Heiken that they were still liquidating the partnership and that the investors should be patient. Despite repeated demands made, Respondents have failed to return any monies to the Heikens although those monies were required to have been maintained in escrow and even though none of the properties were purchased by the partnership.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding Respondents James M. O'Nan and International Real Estate Consultants, Inc., guilty of the allegations in the Administrative Complaint and revoking their licenses as real estate brokers. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 James M. O'Nan International Real Estate Consultants, Inc. c/o Fort Loudoun Investments, Inc. 11020 Kingston Pike Knoxville, TN 37922 James M. O'Nan International Real Estate Consultants, Inc. c/o Patricia O'Nan Crews 6850 Cassia Place Miami Lakes, Florida 33014 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact In 1974 and up through the present time, Respondent has been a licensed real estate broker. During 1974, she operated under the name "World Wide Real Estate Center." Realty, Inc., is a corporate real estate broker licensed by the State of Florida, and Respondent is presently employed by Realty, Inc. On or about May 1, 1974, Respondent, while registered and operating as a real estate broker in the name of World Wide Real Estate Center presented a seminar in St. Petersburg, at which time she lectured and discussed real estate matters, specifically the purchase of real property located in Costa Rica. At that seminar, Respondent introduced Otho "Skip" Thomas as her associate and, together with him, made the presentation concerning Costa Rica and the availability of real property for purchase in Costa Rica. William E. Hoyer, Janice Hoyer, and Norma L. Johnson attended the seminar, since they had travel arrangements made for a vacation in Costa Rica in June. The Hoyers and the Johnsons knew Thomas as a former travel agent who had arranged several vacation trips for a travel group of which the Hoyers and the Johnsons were members. They knew that Thomas had sold his travel agency prior to the time they attended the seminar conducted by Respondent and Thomas. Since Thomas was describing real property and the prices of available property in Costa Rica and answering questions from the audience at the seminar, the Hoyers and the Johnsons assumed he had become a licensed real estate salesman after giving up the travel agency business. At all times, Respondent knew that Thomas was not a licensed real estate broker or a licensed real estate salesman. Since the Hoyers and the Johnsons were interested in purchasing real property in Costa Rica, between the time of the seminar and their departure for Costa Rica, they went to the office of World Wide Real Estate Center. Thomas met with them and discussed in more detail both property descriptions and sale prices of property available in Costa Rica. He gave them a business card from World Wide Real Estate Center containing both Respondent's name and Thomas's name. He arranged to meet them in Costa Rica. Respondent was not present at this meeting at World Wide Real Estate Center. After the Hoyers and the Johnsons arrived in Costa Rica for their vacation, they met with Respondent and Thomas in a hotel room to further discuss available real estate. Thomas ran the meeting and went through a file box he had, reciting specific pieces of property available and their purchase prices. Thomas then returned to St. Petersburg, Florida, and Respondent, together with a Costa Rican, Carlos Salizar, began showing property to the Hoyers and to the Johnsons. As a result, the Hoyers selected a piece of property to purchase, but the Johnsons found two pieces of property they were interested in purchasing, although they could only purchase one of those two properties. Respondent took the Hoyers and the Johnsons to an attorney's office in Costa Rica. Both the Hoyers and the Johnsons signed documents, probably powers of attorney whereby the lawyer would negotiate and purchase the property the Hoyers wanted and also whichever parcel the Johnsons decided they wanted. Since the Hoyers had made their decision, they gave to the lawyer a check for $4,000 to be used by him as a down payment. After they left the lawyer's office, Respondent told them to stop payment on that check and to instead wait until they had returned to St. Petersburg and then give a check for $4,000 made payable to World Wide Real Estate Center to Thomas. She also told the Johnsons to give Thomas a check for $4,000 made payable to World Wide Real Estate Center after they had returned to St. Petersburg and decided which parcel they wished to purchase. Respondent told the Hoyers and the Johnsons to deal with Thomas because he was handling the business affairs in St. Petersburg for her while she was in Costa Rica. She did not tell them to make the check payable only to the escrow account of World Wide Real Estate Center, nor did she tell them that Thomas was an authorized signature on the general account of World Wide Real Estate Center, but not on the escrow account of World Wide Real Estate Center. The Hoyers returned to St. Petersburg and stopped payment on the check for $4,000 which they had left with the attorney selected by Respondent. On July 22, 1974, the Hoyers gave Thomas a cashier's check in the amount of $4,000 payable to World Wide Real Estate. Thomas deposited that check into the general operating account of World Wide Real Estate Center. The Hoyers delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Hoyers while they were still in Costa Rica. After the Johnsons returned to St. Petersburg, Thomas began contacting them to obtain their decision as to which piece of property they wished to purchase. When they decided, Thomas met with Norma Johnson on July 24, 1974. Mrs. Johnson gave him two checks in the total amount of $4,000 payable to World Wide Realty and obtained from Thomas a receipt for the funds. Thomas deposited the checks into the general operating account of World Wide Real Estate Center. The Johnsons delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Johnsons while they were still in Costa Rica. Since the Johnsons and the Hoyers heard nothing regarding the status of the purchase of the property on their behalf, they began contacting Thomas in St. Petersburg and Respondent in Costa Rica. They were advised that the property was being surveyed or that real estate transactions in Costa Rica were normally slow. In September, Respondent returned from Costa Rica. She discovered that Thomas had left town after withdrawing the funds in the general operating account of World Wide Real Estate Center. The funds withdrawn by Thomas included the Johnsons' $4,000 and the Hoyers' $4,000. Respondent did not notify either the Hoyers or the Johnsons that their funds had been stolen by Thomas until December, 1974, when she met with them at the Johnsons' home. She then advised them that the police were unable to locate Thomas and that, if necessary, she would use her own funds to purchase the property for them. Both the Johnsons and the Hoyers told her they wanted the property or their money back. Hearing nothing further from Respondent, the Hoyers and the Johnsons retained an attorney, who wrote to Respondent on March 20, 1975, demanding immediate return of his clients' moneys. Hearing nothing further from Respondent, in May, 1975, the Johnsons and the Hoyers each filed a civil action against Respondent demanding return of their money. Both lawsuits were consolidated for trial. On December 18, 1975, a final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Johnsons in the amount of $4,000 plus interest. On December 23, 1975, final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Hoyers in the amount of $4,000 plus interest. Respondent failed to pay either final judgment. She was deposed in aid of execution in order to locate assets to collect on the final judgments. On February 1, 1978, Respondent filed for bankruptcy in order to discharge the judgments of the Hoyers and the Johnsons. Respondent admitted that was the only reason she went through bankruptcy. The Discharge of Bankrupt was entered on May 4, 1978. Respondent has never returned to the Hoyers or the Johnsons their moneys, despite the demand therefor made on her by them at the December, 1974, meeting at the Johnsons' home; despite the demand made on her by their attorney on March 20, 1975; despite the demand made on her by the filing of the civil actions in May, 1975; despite the demand made on her by the entry of the final judgments in December, 1975; and despite the demand made on her by the taking of her deposition in aid of execution. In spite of her knowledge that Thomas was not a licensed real estate salesman or broker, Respondent represented Thomas to be her agent and a licensed real estate salesperson. By the time of the formal hearing in this cause, Respondent's husband, Karl Landes, had become a licensed real estate broker. He and Respondent are employed by corporate broker Landes Realty, Inc. The sole stockholders of Realty, Inc., are Respondent and her husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent Mary E. Landes guilty of the allegations contained within the Amended Administrative Complaint, revoking her license as a real estate broker, and revoking the license of Landes Realty, Inc., during such period of revocation. RECOMMENDED this 21st day of October, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982. COPIES FURNISHED: Mark P. Kelly, Esquire Freeman & Lopez, P.A. Suite 410, Metropolitan Bank Bldg. 4600 West Cypress Avenue Tampa, Florida 33607 Barry J. McCaughey, Esquire McCaughey, Knaust & Evans, P.A. 3151 Third Avenue, North Suite 400W St. Petersburg, Florida 33713 William M. Furlow, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Donald L. Stuart is a real estate broker registered with the Florida Real Estate Commission. He holds license number 215732 with expiration date of 3/3/77. In the renewal application received April 3, 1975 by FREC, Stuart reported his business address to be 407 S. Old Dixie Highway, Vero Beach, Florida. In early August, 1976 an investigator for FREC visited the address on South Old Dixie Highway and found a vacant house with no real estate broker's sign displayed. Inquiry in the neighborhood revealed the house had been unoccupied for a considerable period of time. By Election of Rights form submitted November 26, 1976, Stuart acknowledged receipt of the Administrative Complaint by checking Block 1 in which he acknowledged having read the explanation of rights, did not dispute the allegations made in the Administrative Complaint, and requested a hearing. Notice of Hearing was forwarded by Certified Mail, to the same address, viz. 407 S. Old Dixie Highway, Vero Beach, Florida to which the Administrative Complaint had been forwarded.
