The Issue The issue in this case is whether Respondents negotiated the sale of real property and collected a commission on said sale without the requisite real estate license issued by the State of Florida.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty of prosecuting Administrative Complaints filed against real estate practitioners pursuant to the laws of the State of Florida. Respondent Rene Larralde, Jr., is a citizen of the State of Florida. At no time relevant to this proceeding did Larralde hold a Florida-issued license as a real estate sales associate or real estate broker. Respondent Maxous, Inc., is a Florida for-profit corporation formed on August 10, 2004. Larralde is president and registered agent of Maxous. Respondent Glinda G. Hatfield has held licenses as a Florida real estate broker and a Florida real estate associate. As of the date of the incident relevant to this proceeding, Hatfield's real estate broker's license was in an inactive status. Hatfield had failed to meet one of the continuing education requirements for renewal of her license that year. She was not aware of that fact until notification by the state relevant to the issues in this proceeding. Upon receiving notice, Hatfield took the necessary measures to have her license re-instated to active status. Hatfield assisted Larralde in forming Maxous. It was Hatfield's responsibility, as the licensed real estate broker in the new entity, to make sure Maxous was duly registered with the state as a real estate broker. Hatfield went to the Melbourne Association of Realtors to register the business once it had been incorporated. Hatfield did not understand that the business also had to be registered through the Florida Real Estate Commission in Tallahassee. Not being aware of that requirement, Hatfield never registered Maxous with the state. Rather, she paid the fees associated with registration of the company with the local real estate association and made the erroneous presumption that the company could then operate as a licensed real estate broker in the state. On or about February 27, 2008, certain parties entered into a Contract for Sale and Purchase (the "Contract") of property located at 1033 June Drive, Melbourne, Florida (the "Property"). Maxous was designated as the listing broker in the Contract. On April 21, 2008, the sale of the Property closed, as evidenced by a HUD Settlement Statement. The Settlement Statement indicates a real estate commission in the amount of $5,964.18 for the sale. The Settlement Statement indicates $2,982.09 (one half of the commission) is to be paid to Maxous and the other half of the commission to be paid to Exit One Realty. Exit One Realty was the listing agent for the Property, but had not been made aware of the impending sale. As the sole listing agent, Exit One Realty would normally expect to receive the entire broker's commission at the time of closing. However, Exit One Realty was not even aware of the sale of the Property until it received its commission. It appears that Maxous, through the person of Larralde, held itself out as the listing broker and assumed ownership of the commission on the sale of the Property. Larralde did, however, designate Exit One Realty as another broker in the sale who was entitled to half of the commission. At the time of the transaction involving the Property, Maxous was not registered with the State of Florida as a real estate broker. Larralde was not licensed as a real estate sales associate. In order to consummate this sale (and others like it), Larralde had established Maxous. It was apparently Larralde's intent, although he did not appear at the final hearing, to use Hatfield's status as a licensed broker to legitimize Maxous' status as a brokerage firm. Hatfield was amenable to that arrangement. Hatfield was designated as the vice-president of Maxous when the company was formed. As previously noted, Hatfield went to the Melbourne Association of Realtors for the purpose of registering Maxous as a brokerage entity. Hatfield paid the necessary fees to the association for the registration of Maxous with the local real estate association, and, upon inquiry from that office, felt that she had done everything necessary to allow Maxous to operate as a broker. Thus, at the time of the aforementioned transaction, Maxous was not a legitimate broker in the State of Florida. Hatfield assumed she was the registered broker for Maxous; assumed Maxous was duly registered with the state; and assumed that her broker's license was current. In matter of fact, none of those assumptions proved true. Clearly Hatfield did not attempt to circumvent or avoid the requirements for real estate brokers. Rather, she was mistaken about what had to be done regarding registration with the Florida Real Estate Commission. She did not know that her license had been deemed inactive for failure to complete a continuing education class. Neither Larralde, nor anyone else testified at final hearing as to what their knowledge was concerning these matters. It cannot be determined whether Larralde knew Maxous was not a registered brokerage firm and that the transaction relating to the Property was improper. However, Larralde did share the commission with Exit One Realty. It is clear from Hatfield's testimony at final hearing that she did not intend to defraud anyone or to do anything illegal or improper. However, her actions were improper nonetheless. It is not clear from the testimony whether Hatfield received any of the commission provided to Larralde. However, to her credit, Hatfield, upon learning of the violations set forth above, unilaterally ceased doing business as a real estate agent or broker. She acknowledged her mistake and took immediate action to make sure she would not make any further mistakes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate: (1) imposing a fine in the amount of $5,000 against Respondent, Rene Larralde; (2) imposing a fine of $5,000 against Respondent, Maxous, Inc; (3) imposing a fine of $250 against Respondent, Glinda G. Hatfield; (4) requiring Hatfield to pay the costs of the investigation in this matter; and (5) suspending Hatfield's real estate license for a period of one year. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 24th day of November, 2009. COPIES FURNISHED: Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-Suite 801 North Orlando, Florida 32801 Joseph G. Colombo, Esquire 2351 West Eau Gallie Boulevard, Suite 1 Melbourne, Florida 32935
Findings Of Fact The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the real estate licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Petitioner’s application for licensure as a real estate broker should be approved or denied.
Findings Of Fact Based on the testimony and documentary evidence presented in this proceeding, the following Findings of Fact are found: Respondent is the state agency charged with regulating the practice of real estate in the State of Florida, pursuant to section 20.165, chapters 455 and 475, Florida Statutes. Petitioner seeks to obtain a real estate broker license to practice real estate in Florida. Petitioner is a resident of the State of Utah and has held an active real estate broker license in Utah for at least 24 months during the preceding five years from the date of his application. In 2003, Petitioner was first licensed in Utah as a real estate sales agent. On February 12, 2007, Petitioner was issued a real estate broker license, and his limited-liability company, Ultimate Homes of Utah, LLC, was licensed as a real estate company in Utah. On July 28, 2016, Petitioner submitted an on-line application for a Florida real estate broker license. The application included a section which requested background information. Question No. 1, one of the four questions on the application, requested information about Petitioner’s criminal history. Specifically, Question No. 1 requested in pertinent part the following: “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or are you currently under criminal investigation?” The application also directed applicants, who responded “yes” to Question No. 1, to provide details regarding any criminal offense, including description of the offense, offense type, penalty or disposition, and whether sanctions have been satisfied for each offense. In his application, Petitioner answered Question No. 1 affirmatively. He disclosed that he plead guilty to one count of aggravated sexual abuse of a child, a first-degree felony, on July 5, 1995. The criminal offense occurred in Utah. Further details of the criminal offense will be discussed below. Petitioner appeared, pro se, at the December 14, 2016, Commission meeting where his application was considered. On January 12, 2017, Respondent entered a NOID, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s NOID recited key findings of fact 1 and 4, and key conclusions of law D, G, and M, as grounds for its proposed denial of Petitioner’s application. Those key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s NOID, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. * * * 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. * * * D. Having been denied licensure or having a license to practice any regulated business, profession or vocation, for conduct which would constitute a violation of this Chapter. 475.1791)[sic], 475.181 F.S. * * * G. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181 F.S. * * * M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. Regarding the circumstances of Petitioner’s criminal offense, on December 13, 1994, an Information was filed by the County Attorney for Circuit Court of Davis County, State of Utah, which charged Petitioner with three counts as follows: Count One: rape of a child, a first degree felony: On or about July 30, 1993, Petitioner engaged in sexual intercourse with a child under 14 years of age. Count Two: Sodomy Upon a Child, a first degree felony: On or about July 30, 1993, Petitioner engaged in a sexual act involving the genitals of the actor and the child under the age of 14 and the mouth or anus of either person. Count Three: Rape of a Child, a first degree felony: On or about August 13, 1993, Petitioner had sexual intercourse with a child who is under the age of 14. The victim involved in the criminal offense was a 13-year-old female, while Petitioner was 21 years old. Petitioner ultimately pled guilty to one count of aggravated sexual abuse of a child. On July 5, 1995, Petitioner was sentenced to an indeterminate term of three years to life, fined $2,000, and ordered to pay restitution for costs of the victim’s counseling. The court also recommended that Petitioner participate in a specialized sex offender treatment program. Petitioner served four years’ imprisonment, followed by five years of parole. Petitioner was released from prison in 1999. Following Petitioner’s release from prison, he was required to register as a sex offender and remained on the registry until October 10, 2015. At hearing, Petitioner expressed remorse for his actions, and acknowledged that the facts of the offense were accurately described in the filed Information. According to Petitioner, the events giving rise to the criminal offense began with his childhood. Petitioner described his childhood as one where he did not have a close relationship with his parents and did not receive affection from them. That lack of affection affected him to the extent that he was “love-starved.” Petitioner explained that “when he was 21 years old, a 13-year- old girl expressed interest in him and he made the mistake of pursing her as a love interest.” After his release from prison, Petitioner worked in the food service industry until he lost his job in 2002. Thereafter, he pursued a career working in real estate. During the time Petitioner has held a real estate license in Utah, he has earned various certifications related to real estate including, e-Pro Certification (2004), Distressed Property Expert (2011-2012), Short Sales and Foreclosure Resource Certification, and Residential Specialist Certification. Petitioner was given the opportunity to submit letters of recommendation to show evidence of his reputation, honesty, truthfulness, trustworthiness, and good character. Petitioner offered several letters from past customers and business partners to attest to his work ethic, responsibility, and trustworthiness in real estate dealings. Those letters are of limited value as it relates to moral turpitude and rehabilitation because the authors of the letters had no knowledge of Petitioner’s criminal history. Petitioner’s testimony regarding his otherwise blemish-free criminal history since the incident, employment history, and achievements since the criminal offense is found to be credible. Petitioner acknowledged in his testimony at the final hearing that what he did in 1993 was wrong. He has not attempted to hide the incident from Respondent as he disclosed the details of the incident on his application. It is undisputed that he completed a sex offender treatment program, completed his probation, and was released from the requirement to register on the Utah sex offender registry in 2015. Furthermore, there is no evidence that Petitioner has been involved in any criminal activity since the criminal offense in 1993, nearly 25 years ago. In his testimony, Petitioner also highlighted his qualifications as a broker, which were corroborated by the letters of support from Petitioner’s former clients that were offered at the hearing. Petitioner is a father of three children, has been married for more than 20 years, has been a licensed real estate broker in the state of Utah for 14 years, and has not exhibited a pattern or practice of violations before or after the incident in 1993. Rather, the incident in 1993 stands alone as the only blemish on Petitioner’s record. No evidence was presented at hearing of any prior discipline against Respondent’s license in any jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Real Estate issue a final order approving Victor Rothaar’s application for licensure as a real estate broker. DONE AND ENTERED this 26th day of July, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of July, 2017.
The Issue Whether Respondent engaged in acts and/or conduct amounting to fraud, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction for which his real estate license should be disciplined.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to, inter alia, Chapters 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, John Wilson Claffey, is now and was at times material hereto, a licensed real estate salesperson in Florida, having been issued licensed number 0419730. The last license issued was as a salesperson, c/o Venice Properties and Investments, Inc., 628 Cypress Avenue, Venice, Florida. During 1985, Respondent and Mary Lou Retty (Retty), while Respondent was acting as the licensed general contractor in the employ of Venice Construction Management, Inc., entered into a verbal agreement to build five commercial structures (for Retty) in Venice, Florida. The agreement provided that Respondent would charge Retty actual costs plus a supervisory fee for each building. Respondent built the first two buildings as agreed in keeping with the projections he provided Retty. However, a dispute later arose between Respondent and Retty during construction of the third building about some of the billings and other accounting practices with the end result that Retty suspected that Respondent was overcharging by falsifying invoices and purchasing materials which were used for other projects, but were charged to the building he was erecting for Retty. During 1986, Retty filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit for Sarasota County, Florida. Retty's object was to recover monies that she suspected Respondent had misappropriated and wrongfully charged to her project. On April 25, 1990 and June 28, 1990, Retty obtained two final judgments. The first judgment ordered Respondent to pay Retty $40,263.47 and the second final judgment ordered him to pay her the sum of $10,263.47 for civil theft, attorney fees and court costs. The interest rate for both judgments was 12% per annum. (Petitioner's Exhibits 1-4.) During counsel's preparation and discovery for trial, it became evident that Respondent altered several billing invoices which he sought to collect from Retty. Respondent submitted falsified invoices and charged Retty for materials that he used on other projects. Respondent unsuccessfully appealed the final judgments. To date, Respondent has not paid any of the monies he was ordered to pay in the final judgments referenced herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent engaged in proscribed conduct as alleged and that his real estate license be suspended for seven (7) years. It is further RECOMMENDED that Respondent Claffey pay an administrative fine of $1,000.00 to Petitioner within thirty (30) days of the entry of its Final Order. DONE and ORDERED this 29th day of January, 1993, 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 29th day of January, 1993. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John Wilson Claffey 312 Venice Avenue East #126 Venice, Florida 34292 Darlene F. Keller/Executive Director Florida Real Estate Commission Hurston Building-North Tower 400 West Robinson Street Orlando, Florida 32801 1772 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
The Issue The issue in this case is whether the Respondent, German H. Rodriguez, committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and disciplining real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent has been licensed as a real estate broker, license number 0434907. On March 20, 1995, Respondent submitted a license renewal form to the Petitioner which resulted in the automatic issuance of a renewed license for two years, ending March 31, 1997. The license renewal form provided, in pertinent part: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227 Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. When Respondent executed the renewal form he did not have documentation supporting his eligibility for license renewal. Specifically, Respondent did not have a course report documenting completion of the required 14 hour continuing education course. The course report that Respondent later received from an approved real estate school noted that Respondent had started the course June 1, 1995, and had finished it June 26, 1995. Respondent knew that the 14 hour continuing education course was required by the Department for license renewal. Further, Respondent knew that the course was to be completed before the renewal came due. Respondent maintains that he intended to complete the course before the renewal because he had, in fact, requested a correspondence course from an approved real estate school, had completed the course work, and had filled out the answer sheet. Unfortunately, according to Respondent, the envelope was misplaced and he failed to timely mail the answer form to the company for scoring. Therefore, Respondent did not get credit for the work until June, 1995, when he completed the work again. As chance would have it, Respondent was selected for audit in August, 1995. By this time he had completed the continuing education course work as required by the Department for license renewal but, as indicated above, did so after the renewal form had been submitted. In response to the audit, Respondent represented that he had completed the work prior to renewal but, through inadvertence, had not gotten the course credit until after the renewal period. Respondent did not successfully complete 14 hours of continuing education prior to submitting the renewal form. Respondent has been a licensed real estate broker for ten years during which time he has never been disciplined. At the time of the renewal, Respondent was not using his real estate license and was in an inactive status.
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 violated Section 475.25(1)(m), Florida Statutes, and imposing a reprimand with an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH 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 9th day of April, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Frederick H. Wilsen, Esquire Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 German H. Rodriguez 703 Southwest 89th Avenue Plantation, Florida 33324
The Issue Whether the Respondents committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate, pursuant to the laws of the State of Florida. At all times pertinent to this proceeding, Respondent, Lynton Oliver Thomas, was a licensed real estate broker, having been issued license number 0504596 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Thomas was as a broker-salesperson at Pagliari Realty, Inc., 323 Northeast 167 Street, North Miami Beach, Florida 33162. At all times pertinent to this proceeding, Respondent, L T Express Realty Corp., was a corporation registered as a Florida real estate broker, having been issued license number 0273473 in accordance with Chapter 475, Florida Statutes. At all times pertinent to this proceeding, Respondent Thomas was licensed and operating as qualifying broker and officer of Respondent L T Express Realty Corp. The office for this corporate entity was located at 2124 Northeast 123 Street, North Miami Beach, Florida. There was no evidence that Respondent Thomas operated his corporate entity from any other office. On May 7, 1995, Respondent Thomas, a licensed real estate broker, d/b/a L T Express Realty Corp., negotiated a contract for the sale of a house between Bruce and Ann McCormick (as sellers) and Marie S. Saintel and Carita Luc (as buyers). The buyers gave Respondent Thomas an earnest money deposit in the amount of $5,528.00. The transaction failed to close. The sellers, through their agent, attempted to make a demand upon Respondent Thomas for delivery of the earnest money deposit. The sellers' agent was unable to serve the demand on the Respondents because the Respondents had closed their offices and could not be located. Respondents had, or should have had, a good faith doubt as to the proper way to disburse the escrowed funds. Respondent Thomas, without authorization from the sellers, returned $3,000.00 of the original $5,528.00 deposit to the buyers. The balance of the earnest money deposit, in the amount of $2,528.00, has not been recovered from the Respondents. Rule 61J2-10.032(1), Florida Administrative Code, provides the procedure real estate brokers are required to follow when competing demands are made for funds that have been received in escrow or when a broker has a good faith doubt as to how escrowed funds should be disbursed. At no time did Respondents attempt to invoke those procedures. Kenneth G. Rehm, Petitioner's investigator, visited Respondent L T Express Realty Corp. and discovered that Respondent Thomas had abandoned his registered office. Respondent Thomas failed to notify Petitioner that he closed his real estate office at 2124 Northeast 123 Street, North Miami Beach, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that finds Respondents guilty of the violations alleged in Counts I-VIII of the Administrative Complaint. As a penalty for these violations, the Final Order should revoke all licenses issued by Petitioner to Respondents. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Mr. Lynton Oliver Thomas L T Express Realty Corp. 10810 Northeast Tenth Place Miami, Florida 33161 CLAUDE B. ARRINGTON 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 18th day of November, 1997 Henry M. Solares, Division Director Division of Real Estate 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
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint, and that his real estate salesman license be REVOKED. DONE and ORDERED this 27th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. COPIES FURNISHED: Susan J. Hartmann, Esquire P. O. Box 1900 Orlando, Florida 32802 Mr. Dennis R. Bell FCI, ECU-2 P. O. Box 2000 Lexington, Kentucky 40511 Salvatore Carpino, Esquire 130 N. Monroe St. Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson St. Orlando, Florida 32801
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
