Findings Of Fact Respondent, Carl A. Perry, is licensed by Petitioner as a real estate salesman. At all times material hereto, he was employed by F.E.C. Real Estate Corporation. On September 23, 1979, Respondent negotiated and procured a contract whereby Ronald Joeckel and his wife were to buy and Lynn C. Burdeshaw and his wife were to sell certain real property owned by the Burdeshaws and located in Pompano Beach, Florida. In order to secure that Deposit Receipt Contract, the Joeckels gave Respondent on that date a $100 deposit. The Deposit Receipt Contract required an additional deposit of $1,900, and on October 11, 1979, Respondent received a $1,900 check from the Joeckels. The check was dated October 20, 1979. Respondent did not give this check to his employer until November 23, 1979. When F.E.C. Real Estate Corporation deposited the check for $1,900 in its trust account, the check was dishonored by the bank upon which it was drawn for the reason that the Joeckels did not have sufficient funds to cover the check. Instead of advising the Burdeshaws that the Joeckels' $1,900 check was dishonored, Respondent contacted Ronald Joeckel on several occasions. Joeckel each time advised Respondent that he would cover the check, and Respondent relied upon that information and believed that the Joeckels would fulfill their contract for the purchase of the Burdeshaws' property. Respondent was in error; the Joeckels breached the Deposit Receipt Contract, and the Burdeshaws sold their property to another purchaser soon thereafter. Respondent's employer, F.E.C. Real Estate Corporation, was not the listing broker for the Burdeshaws' property. Shell Coast Realty held that listing. Other than this Administrative Complaint, Respondent has had no other complaint made against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered reprimanding Respondent, Carl A. Perry, for his conduct, admonishing Respondent, Carl A. Perry, to abstain from similar conduct, and placing him on probation for a period of one year. RECOMMENDED this 21st day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 21st day of December, 1981. COPIES FURNISHED: William R. Scherer, Esquire Grimmett, Conrad, Scherer & James, P.A. 707 Southwest. Third Avenue Post Office Box 14723 Fort Lauderdale, Florida 33302 Mr. Carl A. Perry c/o F.E.C. Real Estate Corporation 4634 North Federal Highway Lighthouse Point, Florida 33064 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue The issue for determination is whether Respondents committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Helen B. Horton (Respondent Horton) was licensed in the State of Florida as a real estate broker, having been issued license number 0260577. At all times material hereto, Helen B. Horton Realty, Inc. (Respondent Horton Realty), was a corporation licensed in the State of Florida as a real estate broker, having been issued license number 0267231. At all times material hereto, Eric Carlton Brent was licensed in the State of Florida as a real estate broker. Mr. Brent is the son of Respondent Horton. On December 20, 1993, Respondent Horton ceased being the President of Respondent Horton Realty. At that time, Mr. Brent became the President, in addition to being the Secretary and Treasurer, of Respondent Horton Realty. On April 12, 1994, Mr. Brent and Respondent Horton, operating as brokers/salespersons for Respondent Horton Realty, negotiated a contract for the sale of residential property between John M. and Suzanne B. Patten (sellers) and Joseph M. Eldridge (buyer). The property was listed by Reserve Realty and Sales, Inc. (Reserve Realty). Respondents and Mr. Brent were representing the buyer. A provision of the contract provided for the buyer to pay a deposit of $1,000 to be held in escrow by Respondent Horton Realty. Also, the contract provided, among other things, that the closing was to take place on or before April 15, 1994. The buyer refused to pay the deposit without a home inspection. A satisfactory home inspection became a contingency to the contract and agreement. The home inspection was ordered and completed. The inspection contained several recommendations. Respondents notified the sellers and Reserve Realty of the recommendations. The buyer continued to refuse to pay the $1,000 deposit. Respondent Horton informed all parties, including the sellers and Reserve Realty, that the buyer had not paid and would not pay the deposit. All parties were aware that the buyer had not paid the $1,000 deposit. On the closing date of April 15, 1994, the deposit remained unpaid. As a result, Respondent Horton considered the transaction terminated. Mr. Brent made several unsuccessful requests to the buyer to pay the $1,000 deposit. At the end of April 1994, Mr. Brent was convinced that the buyer had no intentions of paying the deposit. Mr. Brent notified the buyer that neither he nor the Respondents would continue to represent him in the transaction. The buyer began to represent himself in the transaction. He dealt directly with Reserve Realty. In May 1994, Mr. Brent notified all parties, including the sellers and Reserve Realty, in writing that the transaction would not be completed due to the buyer's failure to pay the $1,000 deposit. At that time, all parties were aware that the buyer still had not paid the deposit and that the Respondents and Mr. Brent no longer represented the buyer in the transaction. In June 1994, as a result of a personal tragedy, Mr. Brent was no longer able to continue to operate Respondent Horton Realty. Finally, on or about July 15, 1994, Mr. Brent ceased operating and closed Respondent Horton Realty. At no time did Respondents or Mr. Brent receive the $1,000 deposit from the buyer. At no time did Respondent Horton Realty's escrow account contain a deposit from the buyer. At no time did Respondents or Mr. Brent receive a demand from the sellers or Reserve Realty, or any of their agents, for the deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order DISMISSING the Administrative Complaint against Helen B. Horton and Helen B. Horton Realty, Inc. DONE AND ENTERED this 2nd day of July, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 2nd day of July, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Department of Banking and Finance, Division of Finance (Division), is the state agency charged with administering the mortgage brokerage guaranty fund (fund) codified in Sections 494.042 through 494.045, Florida Statutes (1987). Among other things, the Division processes claims for payment from the fund by persons who were parties to a mortgage financing transaction and who have suffered monetary damages as a result of a violation of the law by a licensed mortgage broker. In this case, the perpetrator was Stackhouse Mortgage Corporation (Stackhouse), which held mortgage brokerage license number HB-0006527 from September 19, 1976 through August 31, 1986 and operated at least part of that time in the Brevard County area. In order to perfect a successful claim and be assured of participating in the distribution of moneys from the fund, a person must satisfy a number of statutory criteria within a specified time period after the first notice is filed. This proceeding involves a number of claims by various parties who suffered monetary damages as a result of the illicit acts of Stackhouse. The principal factual issues are whether petitioners, Robert Motes, Machiko Motes, Madge Chesser and Christiane E. Driscoll, all claimants, satisfied the required statutory criteria within the specified time period, and whether the first valid and complete notice of a claim was filed on January 20, 1987 as maintained by the Division, or occurred on a later date as urged by petitioners. These issues are crucial to petitioners' interests since the amount of money to be distributed from the fund for all claimants (on a pro rata basis) is $100,000, and all of that money has been proposed to be distributed to intervenors and other claimants because of the alleged untimeliness of petitioners' claims. The Stackhouse matter first came to the Division's attention on January 20, 1987 when it received by certified mail a letter containing a copy of a complaint filed against Stackhouse by intervenors, Richard S. and Althea M. Rucki, in the circuit court of the eighteenth judicial circuit in and for Brevard County. This filing constituted the first valid and complete notice of the matter. As such, it triggered a two year time period in which other claimants had to file such notice with the Division and then satisfy all statutory criteria in order to share in the first, and in this case the only, distribution of moneys from the fund. Intervenors eventually obtained a summary final judgment against Stackhouse on January 10, 1989 in the amount of $27,200 plus $1,972 in interest, $76 in court costs, and $2,000 in attorney's fees. Copies of the judgment, unsatisfied writ of execution and affidavit of diligent search were filed with the Division on January 19, 1989, or within two years from the date the first notice was filed. After the Rucki notice was filed, a number of claimants, including the other intervenors, filed their notices with the Division within the two year time period and thereafter satisfied all pertinent statutory criteria. Their names, dates of filing their final claims with the Division, and amounts of final judgment, including costs and fees, are listed below in the order in which the claimants filed their first notice with the Division: Claimant Date of Filing Claim Amount of judgment Roberts January 19, 1989 $84,562.30 Rucki January 19, 1989 31,248.00 Gantz January 19, 1989 15,634.28 Carman January 19, 1989 48,767.87 Thomas July 21, 1988 40,103.22 Hahn January 19, 1989 14,165.14 Ulriksson January 18, 1989 14,497.00 Choate January 18, 1989 28,994.00 Anderson December 22, 1988 84,443.20 Resnick December 22, 1988 32,912.22 It is noted that each of the foregoing claimants satisfied all statutory requirements prior to the date of the filing of their respective final claims with the Division. This included the obtaining of a judgment against the debtor, having a writ of execution issued upon the judgment which was later returned unsatisfied, and thereafter having made a reasonable search and inquiry to ascertain whether the judgment debtor possessed any property or other assets to be used in satisfying the judgment. Based upon the judgments obtained by the above claimants, those persons are entitled to distribution from the fund in the following pro rata amounts: Anderson claim - $10,950.00 Resnick claim - 10,950.00 Carman claim - 10,950.00 Thomas claim - 10,950.00 Ulriksson claim - 7,937.83 Choate claim - 10,950.00 Roberts claim - 10,950.00 Gantz claim - 7,697.63 Hahn claim - 7,714.54 Rucki claim - 10,950.00 $100.000.00 On July 27, 1988 petitioners, Robert and Machiko Motes and Madge Chesser, filed their notices with the Division. On August 2, 1988, they were advised by the Division that "the first time period for payment of the Guaranty Fund claims is `two years after the first claim.'" Even so, petitioners did not complete all required statutory steps and file their final claims with the Division until March 1, 1989, or after the two year period had expired. Petitioner, Christiane E. Driscoll, filed her notice, copy of complaint and final judgment on January 23, 1989. Thereafter, she completed all required statutory steps and filed her final claim with the Division on June 6, 1989. As a consequence, none of petitioners are entitled to share in the first distribution of moneys from the fund. An attorney who once represented Driscoll, Rafael A. Burguet, made inquiry by telephone with a Division employee in either late December 1988 or early January 1989 concerning the steps required to process a claim on behalf of his client. It was his recollection that the Division employee did not advise him that the two year period for perfecting claims was triggered in January 1987. On January 20, 1989, Burguet sent a letter to the Division with a copy of the complaint and final judgment against Stackhouse. In the letter, he requested the Division to "please advise as to what further requirements you may have to file this claim." On January 23, 1989 a Division employee acknowledged by letter that the Division had received the complaint and judgment. The letter contained copies of the relevant portions of the Florida Statutes and advice that "claims for recovery against Stackhouse Mortgage Corporation are currently being forwarded to our Legal Department for the drafting of a Notice of Intent to either grant or deny payment from the Fund." There is no evidence that the Division made any positive representations to Burguet that either mislead him or caused him to delay in filing his claim. Similarly, the Division responded on August 2, 1988 to the initial filing of the Motes and Chesser notices with advice that the time period for complying with the statutory criteria was "two years after the first claim." Although there were subsequent telephone conversations (but no written communications) between their attorney and the Division, there was no evidence that the Division made any positive representations that would mislead petitioners or otherwise cause them to delay processing their claims. Petitioners Motes and Chesser contend that the first valid and complete notice was not received by the Division until May 20, 1987 when intervenor Carman filed a complaint against Stackhouse in circuit court and also filed her claim and copy of the complaint with the Division the same date. Under this theory, the two year period would not expire until May 19, 1989. This contention is based on the fact that the Rucki complaint was filed in circuit court on January 9, 1987 but the claim and copy of the complaint were not filed with the Division until January 20, 1987. Petitioners contend that subsection 494.043(1)(e) requires both acts to be accomplished the same date. However, this construction of the statute is contrary to the manner in which it has been construed by the Division. According to the stipulated testimony of an employee of the Brevard County sheriff's office, if the property to be levied on is not listed on the instructions to levy, the sheriff's office requires a court order prior to filing a return nulla bona. In this case seven claimants obtained such a court order directing the sheriff to furnish a return nulla bona as to the writ of execution. However, petitioners Motes and Chesser did not do so until after the two year time period had expired. The records received in evidence reflect that the initial inquiry made by Robert and Virginia R. Enteen was never pursued and therefore their claim should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order distributing the moneys from the mortgage brokerage guaranty fund in a manner consistent with its proposed agency action entered on June 21, 1989. The requests of petitioners to share in the first distribution of moneys from the fund should be DENIED. DONE and ORDERED this 11th day of December, 1989 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 11th day of December, 1989.
The Issue The issue is whether Petitioners' applications for reimbursement from the Securities Guaranty Fund should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: These cases involve claims by Petitioners, Clyde and Patti Gallo (Case No. 98-3765) and Richard and Belinda Morin (Case No. 98-3766), for payment from the Securities Guaranty Fund (Fund) for monetary damages suffered as a result of violations of the Florida Securities and Investor Protection Act by William Anthony McClure (McClure). When the violations occurred, McClure was a registered associated person employed by Schneider Securities, Inc. (Schneider), a Colorado corporation registered as a securities dealer in the State of Florida. The Fund is administered by Respondent, Department of Banking and Finance (Department), which must approve all applications for payment from the fund. Undisputed Facts Regarding the Gallo's Claim McClure served as manager for Schneider's branch office in Gainesville, Florida. On February 26, 1993, the Gallos deposited the sum of $213,978.10 with Schneider to open an account for investment purposes. McClure executed a Letter of Authorization dated March 18, 1993, for the transfer of $30,000.00 from the Gallo's brokerage account without the Gallo's authority. This money was then transferred to Buddy Miller, who paid McClure $5,000.00 for the delivery of the money. McClure subsequently obtained ratification of the transfer of monies from the Gallo's account by representing to Mr. Gallo that the transaction was a "factoring arrangement" and that the investment of monies would be "secure." McClure made the foregoing representations at a time when he knew that Miller was insolvent, that he was paying him a kickback, and that the money had already been transferred from the Gallo's account. McClure did not disclose this information to the Gallos. The Gallos lost the entire $30,000.00 appropriated by McClure from their account with Schneider. In February 1995, the Gallos filed a five-count complaint with the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make restitution within 30 days from receipt of notice in order to avoid liability for treble damages. In April 1996, the Gallos received the sum of $40,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On August 19, 1996, an Amended Final Judgment awarded the Gallos the sum of $30,000.00 in compensatory damages. This amount was then trebled to $90,000.00 pursuant to Section 772.11, Florida Statutes. The Amended Final Judgment subtracted the sum of $40,000.00 received from Schneider from the $90,000.00 in trebled damages for a total of $50,000.00 plus statutory interest of $9,999.00, or a total of $59,999.00 against McClure. On December 4, 1996, a Final Judgment awarded the Gallos the sum of $20,878.50 in attorney's fees and the sum of $1,312.06 in court costs against McClure. The parties agree that these amounts are not recoverable from the Fund. On July 11, 1998, the Gallos submitted a claim to the Department seeking to recover $10,000.00 of the treble damages they were awarded pursuant to Section 772.11, Florida Statutes. This claim was denied by the Department on July 28, 1998, on the ground that a claimant cannot recover treble damages from the Fund. Undisputed Facts Regarding the Morin Claim In January 1993, Richard and Belinda Morin deposited the sum of $231,862.59 with Schneider to open an account for investment purposes. McClure was the account executive for Schneider who handled the Morin's brokerage account. In mid-March 1993, McClure contacted Mr. Morin to suggest an investment that he represented as being "secure" and "short-term." McClure described the investment to Morin as a "factoring security" of an account receivable of a major manufacturing concern that was secured by the guaranteed payment of the invoice. The investment suggested by McClure to Morin was really an unsecured loan to a small outdoor furniture manufacturer in Central Florida known as Cypress Originals (Cypress). Cypress was then in severe financial distress which fact was not disclosed to Morin by McClure. On March 5, 1993, or prior to the above discussion, McClure had forged Morin's signature on a Letter of Authorization for the transfer of $25,000.00 from the Morin's brokerage account with Schneider and forwarded the money to Cypress. In June 1993, McClure appropriated an additional $20,000.00 from the Morin's brokerage account into his own personal account or to an account owned and controlled by him. The Morins lost the entire $45,000.00 appropriated from their account. In February 1995, the Morins filed a five-count complaint in the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make any restitution within thirty days after receipt of the notice in order to avoid liability for treble damages. In February 1997, the Morins received $45,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On July 2, 1997, the Morins were awarded the sum of $45,000.00 in compensatory damages. This amount was trebled to $135,000.00 pursuant to Section 772.11, Florida Statutes. The Final Judgment awarded the Morins the sum of $90,000 ($135,000.00 in trebled damages less $45,000.00 received from Schneider), prejudgment interest of $48,397.20, court costs of $9,001.67, and attorney's fees of $32,410.00 against McClure. The parties agree that the court costs and attorney's fees are not recoverable from the Fund. On June 11, 1998, the Morins submitted a claim with the Department seeking to recover $10,000.00 of the prejudgment interest award. On July 28, 1998, the Department issued its proposed agency action denying the claim on the ground that prejudgment interest cannot be recovered from the Fund. The Department's Interpretation and Practice The Department interprets the term "actual or compensatory damages," as used in Section 517.141(1), Florida Statutes, to mean only the principal amount of the loss by the investor. The Department has never approved a claim against the Fund for any damages other than the actual loss of principal. Under the Department's interpretation of "actual or compensatory damages," prejudgment interest and trebled damages would be excluded from being recovered from the Fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order denying the applications of Clyde and Patti Gallo and Richard and Belinda Morin for reimbursement from the Securities Guaranty Fund. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of February, 1999. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Steven D. Spivy, Esquire 230 Northeast 25th Avenue Suite 200 Ocala, Florida 34470-7075 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 526, Fletcher Building Tallahassee, Florida 32399-0350 Harry L. Hooper, III, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of March, 1982.
Findings Of Fact Carmine Amato is a real estate broker holding license number 0110690, and is the broker for Wise Realty in Broward County, Florida, which he wholly owns. Amerigo DiPietro is a real estate salesman holding license number 0326813. At all times in question, DiPietro was employed by Wise Realty, and Amato was his supervising broker. In August, 1980, DiPietro took a sales contract from Charles and Jennie Conroy for the sale of their home in Broward County, Florida, described as Lot 3, Block 5 of Margate Estates, Section 3. DiPietro suggested to the Conroys that they could afford a larger home by selling their present house and using the equity to put a down payment on a new house. The Conroys subsequently contracted to buy a larger and more expensive house in Broward County from the Hocenics, said house described as Lot 13, Block 8 of Kimberly Forrest. DiPietro found buyers, the Meads, for the Conroys' house; however, the Meads were unable to qualify, and the contract did not close. The Conroys were anxious to close on the Hocenics' house and, as a result, sought a loan from Security Pacific Finance Company, said loan being referred to as a "swing" loan. The Conroys used this swing loan to close on the Hocenics' house, and this loan was secured by a security interest in their old home and the Hocenics' home. The Conroys were not induced in any manner by the Respondents to seek this swing loan. Having obtained the loan, the Conroys closed on the Hocenics' house, moved out of their old house and into the Hocenics' house, and assumed financial responsibility for both homes. Because the Conroys were short $2400, DiPietro took a note from the Conroys payable from the proceeds of the sale of their house. This represented money due DiPietro, which the Conroys could not pay at closing. DiPietro continued to attempt to sell the Conroys' old home and found another buyer, the La Serras. The La Serras qualified, but the Conroys could not raise $3400 needed to pay off their obligation at the closing of the sale of their old home. Because of this, the La Serra transaction did not close. In an effort to save the deal and close the La Serra contract, DiPietro made every effort, even agreeing to take a note for the commissions due to Wise's sales people, who represented both buyer and seller. The Conroys refused to close. With the swing loan almost due, Mrs. Conroy asked DiPietro if he and Amato would buy their old house outright. Eventually, DiPietro and Amato agreed to buy the house and accept financial responsibility for the first mortgage if the Conroys would agree to certain conditions. DiPietro indicated from the outset that neither he nor Amato had sufficient cash to purchase the house outright, and that financing would have to be arranged. DiPietro also advised the Conroys that, if this financing could not be arranged, the swing loan would have to be extended, and that it would be necessary for the Conroys to work with Amato and him to arrange for the extension of this loan. The specific conditions which the Conroys would have to meet were as follow: (a) the Conroys would give Amato and DiPietro a quit claim deed to their old house; (b) the Conroys would do those things necessary to extend the swing loan another six months; and (c) DiPietro and Amato would assume immediate financial responsibility for the house and, during the six months' period, sell it or arrange for long-term financing. The Conroys concurred in this agreement and executed a quit claim deed to their old house to the Respondents. DiPietro tried three different companies, seeking substitute financing for the house. When he failed in this, DiPietro contacted Mr. Conroy about renewing the swing loan. Mr. Conroy accompanied DiPietro to Security Pacific to renew the swing loan. DiPietro attempted to get Security Pacific to substitute any of a number of pieces of property owned by Amato and him for the Conroys' new house and to release its security interest in said house. Because of Security Pacific's excellent equity position in this new house, Security Pacific was unwilling to release its encumbrance on the Conroys' house. Security Pacific said it would release its interest in the Conroys' house only if the amount of the loan was paid down to an amount that the old house could secure. Neither Amato, DiPietro nor Conroy could afford to do this. Security Pacific said it would renew the loan only upon the Conroys' reapplication. Lastly, Security Pacific made clear that it still looked to the Conroys and to their new house as primary security on the swing loan. During all this time, the Conroys' old home was vacant. It had been vandalized and had suffered significant damage which decreased its value. In addition, no yard maintenance had been performed during the period since the Conroys had moved out. To be salable, substantial repairs and maintenance had to be performed by DiPietro and Amato. The revelation that Security Pacific looked to him and his wife for payment of the loan secured by their new house frightened Mr. Conroy. The Conroys were already financially strapped, having been responsible for the payments on both houses during this time. With the swing loan nearly due, and envisioning the loss of both houses and being left with an unsatisfied $28,000 debt, Conroy went to an attorney. The attorney advised Conroy not to join with DiPietro and Amato in extending the swing loan. When the swing loan was not extended, Security Pacific commenced foreclosure proceedings. Amato and DiPietro kept up the payments on the first mortgage, although Mrs. Conroy had to complain at first when these payments were late. The first three payments (July, August and September) were delayed following transfer from the Conroys to Amato and DiPietro. DiPietro and Amato did not promise to assume sole responsibility for the swing loan. DiPietro's representation was that they would try to refinance the property, and that if they could not refinance it they would assume primary responsibility for payment of the swing loan if the Conroys would join with them in extending the swing loan. Respondent Amato never saw or spoke to the Conroys and never made any promises which he did not fulfill. When the foreclosure action commenced, DiPietro stepped up his effort to sell the Conroys' old house and, approximately six to eight weeks later, sold it after substantial repairs were completed. The sales price was $57,000. At the time of the sale, approximately $32,000 was owed on the house to Security Pacific, and approximately $21,000 was owed to Heritage Mortgage Company on the first mortgage. Respondent Amato had put approximately $2,000 into repairs on the house, and Wise Realty was owed a note of approximately $2400 representing commission on the Hocenic/Conroy sale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the following is recommended: That the charges against the Respondent, Carmine Amato, be dismissed, it having been found that he had no contact with the Conroys, could not have made any representations to them, and is not guilty of Violating Section 475.25(1)(b), Florida Statutes; and That the charges against the Respondent, Amerigo DiPietro, be dismissed, it having been found that he made no misrepresentations to the Conroys and therefore did not violate Section 475.25(1)(b), Florida Statutes. DONE and RECOMMENDED this 14th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 14th day of April, 1983. COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Lawrence F. Kranert, Jr., Esquire 1000 South Federal Highway, Suite 103 Fort Lauderdale, Florida 33316 David F. Hannan, Esquire 3300 Inverrary Boulevard, Suite 200 Lauderhill, Florida 33319 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At times pertinent hereto, Respondents were the holders of Florida real estate licenses. During all times material hereto, Respondent, Robert F. Nagel was licensed and operating as a real estate broker. Additionally, Respondent Nagel was the qualifying broker for Bluff's Realty, Inc. During times material, Respondents had an open listing agreement with Angelo Traina to sell his property at 401 Ocean Bluffs Boulevard, 305, in Jupiter, Florida. On or about December 7, 1986, Respondents prepared a purchase-sales contract signed by Carl and Lila Holback, as purchasers and Angelo Traina, as seller, for the purchase of the above referred property for the price of $98,450.00. The sales contract called for a $1,000.00 deposit to be held in escrow by Respondents. An additional $8,000.00 was to be deposited in escrow with the Respondents upon acceptance by the Seller. The contract signed by the Holbacks and Traina's contained a failure of performance provision. The failure of performance provision was contained in paragraph S of the contract and provided essentially that if the buyer failed to perform as required per the terms of the contract, the deposit could be retained by the seller as liquidated damages, or seller, at seller's option, could proceed at law or in equity to enforce the seller's legal rights under the contract. On the following day, December 8, 1986, the Holbacks informed the Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks requested that the $1,000.00 deposit instead be transferred from the Traina/Holback transaction to a new contract to purchase a different condominium unit. This was done on December 8, 1986, as directed by the Holbacks without the knowledge and consent of Angelo Traina. The Holbacks considered that they had been pressured by Mr. Traina into executing the purchase agreement and that after reflection on the "duress" exerted by Mr. Traina, the Holbacks considered that they had a 72 hour period in which they could withdraw from the transaction. They therefore advised Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks closed on a different property on January 12, 1987. Subsequent to December 8, 1986, but prior to January 13, 1987, Respondents offered to pay Mr. Traina $500.00 in return for a release from any potential liability under the contract. This offer was rejected by Mr. Traina. Thereafter, on or about January 13, 1987, Mr. Traina retained counsel who demanded a payment of $10,000.00 from Respondents for alleged damages for breach of a fiduciary duty. The Respondents refused to pay $10,000.00 to or on behalf of Angelo Traina based on the listing agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondents for Two Thousand Dollars (2,000.00) payable within thirty (30) days of entry of Petitioner's Final Order. RECOMMENDED this 25th day of August, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of August, 1988. COPIES FURNISHED: John L. Bryan, Jr., Esquire Scott, Royce, Harris, Bryan & Hyland, P.A. 450 Royal Palm Way Post Office Box 2664 Palm Beach, Florida 33480 Steven W. Johnson, Esquire Department of Professional Regulation- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Laurence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issues in this matter are whether Respondent poses an immediate, serious danger to the public health, safety, or welfare, and, if so, whether Petitioner has cause to immediately suspend Respondent's loan originator license.
Findings Of Fact At all times relevant to this case, Respondent was licensed with the Office to conduct business as a loan originator in the State of Florida. Respondent holds certificate of licensure NMLS No. LO19773. As a loan originator in Florida, Respondent is governed by chapter 494. The Office is the state agency charged with licensing, regulating, and supervising loan originators in Florida pursuant to chapter 494. On March 24, 2015, Respondent was arrested for the following crimes by the Sarasota County Sheriff's Office: Occupied Burglary--pursuant to section 810.02(2)(a), Florida Statutes,3/ a first-degree felony; Battery on a person 65 years or older-- pursuant to section 784.08(2)(c), Florida Statutes,4/ a third-degree felony; and Simple Battery (two counts)--pursuant to section 784.03(1)(a)1.,5/ first-degree misdemeanors. On May 12, 2015, Respondent was charged with these crimes in Sarasota County, Florida, in Case No. 2015-CF-004817-NC. Respondent's criminal case is currently pending disposition in Sarasota County. At the final hearing, Respondent described her actions which led to her arrest on March 24, 2015.6/ The incident began with a dispute over money. According to Respondent, an individual allegedly stole $258.00 from Respondent's friend who was staying at her house. Respondent, together with the friend and three other individuals, drove to the suspected thief's house to demand the money's return. Upon arrival at the house, Respondent walked up to and knocked on the front door. Two individuals, the suspected thief and the suspected thief's mother, answered. The confrontation quickly became physical. Respondent claims that the suspected thief's mother started the fight by jumping on her from out of the front door. Rapidly, upwards of five individuals were involved in hitting, pushing, tackling, and wrestling. The scrum ranged from the front door to the house's garage. Respondent recounted that she was battered, punched, slammed to the ground, and beaten with a cane. (The cane-wielder was the suspected thief's grandfather, who is over 65 years old, which apparently led to Respondent's felony charge of battery on a person 65 years or older.) Respondent claimed she suffered injuries to her chin, neck, heart, and scalp. At the final hearing, Respondent testified that she did not enter the suspected thief's home. However, Respondent did admit that at some point during the encounter, she entered the open garage with the intent to access the house through the side door. (This action evidently led to Respondent's felony charge of burglary.) Eventually, the Sarasota County Sheriff's Office was called and responded. The fight broke up. No serious injuries were reported. No information was presented regarding the fate of the $258.00. Respondent testified that she did not start the fight. She claimed that because of her small frame, she was never a serious danger to anyone. Nevertheless, the Sarasota County Sheriff indisputably arrested Respondent for her alleged role in the altercation. As of the date of the final hearing, Respondent understood that she will have a court date in August 2015 for the pending criminal case. Based on Respondent's arrest, on April 8, 2015, the Office issued the Emergency Order. The Office issued the Emergency Order pursuant to sections 120.60(6) and 494.00255(8). The Emergency Order states that the Office found Respondent's activities posed an immediate and serious danger to the public welfare. The Emergency Order ordered Respondent to immediately cease and desist from engaging in the business of loans and any activities in violation of chapter 494 and Office rules. Through the Emergency Order, the Office suspended Respondent's loan originator's license, effective April 13, 2015. Respondent's loan originator license is suspended "until such time as [Respondent] complies with the terms of this order." As described in the Emergency Order, the Office determined that Respondent's actions that led to her arrest posed an immediate, serious danger to the public based on several factors. The Emergency Order declares that the Office found that an emergency suspension and a cease and desist order was necessary to protect Florida consumers from Respondent's "apparent unpredictable and irrational behavior." Furthermore, Respondent's "apparent volatility, unpredictability, and lack of impulse control" calls into question her "trustworthiness and character." The Emergency Order also states that "[c]ommitting felony battery over a financial matter demonstrates that Respondent lacks the character or general fitness necessary to command the confidence of the community." To emphasize the seriousness of the alleged crimes, the Office points to the fact that the felony burglary charge carries a possible maximum penalty of life in prison. The Office included provisions and terms in the Emergency Order to meet the fairness requirement of section 120.60(6). The Emergency Order contained detailed factual findings in order to adequately notify Respondent of the basis for the Office's intended action. The Emergency Order included a Notice of Rights which provided Respondent the point of entry to request an expedited administrative hearing pursuant to chapter 120 to contest the Emergency Order (which Respondent pursued in the present matter). The Emergency Order also informed Respondent of her opportunity to seek to stay the Office's action through an appellate proceeding under section 120.68. Further, the Emergency Order stated that Respondent's loan originator's license is subject to reinstatement, if the criminal charges are ultimately dismissed or not prosecuted. At the final hearing, Respondent conceded that she made the wrong decision to confront the suspected thief. She expressed that she was not thinking clearly at the time. Nevertheless, Respondent asserts that she is falsely accused and has done nothing wrong. She pleads to keep her license during the time it takes Sarasota County to process her criminal case. Respondent proclaims that she should be considered and treated as innocent of all charges up to and until such time as the allegations against her are proven. Respondent asserts that her loan origination business is her sole source of financial support. Based on the facts produced at the final hearing and further discussed below, the undersigned finds that the Office has not met its burden of demonstrating by clear and convincing evidence that immediately suspending Respondent's license to conduct business as a loan originator is an action "necessary to protect the public interest," as required by section 120.60(6)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Office of Financial Regulation, enter a final order rescinding the Emergency Order to Cease and Desist and Suspending License issued to Respondent, Frankie Damiano, on April 8, 2015. DONE AND ENTERED this 21st day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 21st day of July, 2015.
Findings Of Fact Exhibit 2 evidences some 13 arrests of Petitioner, most of which are for the offense of larceny. Although this document is hearsay, Petitioner readily acknowledged that in 1980 and 1984 he was a drug addict and supported his habit by stealing. Exhibit 3 consists of 6 convictions of grand theft and burglary on August 1, 1980, another count in 1984 and one count of attempted grand theft on October 26, 1990. The period between 1980 and 1984 was a period in Petitioner's life immediately following his discharge from the armed forces. On October 26, 1990, Petitioner was adjudicated guilty of grand theft following a plea of nolo contendere to the charge of obtaining or using or attempting to obtain or use the property of another with intent to deprive the owner of the use thereof of personal property of the value of $300 or more. Petitioner testified that in 1990 his 19 year old stepson, who was preparing to enter college, while driving Petitioner's pickup truck, stopped near a parked vehicle and attempted to steal personal property therefrom, but fled when someone observed him. The license number of the pickup was traced to Petitioner. The stepson confessed his actions to Petitioner and when the police arrived, Petitioner, who already had a criminal record that could hardly be blemished further, told the police that he was the driver of the pickup. He was charged with the offense of attempted grand larceny, pled nolo contendere, was adjudicated guilty and was sentenced to 5 years in prison of which he served some 7 months. The stepson graduated from college and is now married, gainfully employed, and raising a family. When submitting his application for licensure, Petitioner further testified that he researched the definition of moral turpitude, spoke to his lawyer and other people regarding his conviction of grand larceny, and was told that the offense did not necessarily constitute an offense involving moral turpitude. Accordingly, Petitioner assumed that he had not been convicted of an offense involving moral turpitude and marked item 5 on his application "No" which asked if he had ever been found guilty of a crime involving fraud, dishonest dealing, or any other act of moral turpitude. Petitioner contends that he told Respondent's employees, with whom he discussed his application for licensure, of his criminal record and was told this was not disqualifying. Accordingly, he spent the money to obtain the required mortgage broker education certificate and to take and pass the examination for mortgage broker license, only to be told after these efforts that he could not qualify for licensure.
Recommendation It is RECOMMENDED that a Final Order be issued denying the application of Stephen J. Matala for a licensure as a mortgage broker. DONE AND ENTERED this 27th day of January 1994 in Tallahassee, Leon County, Florida. K. N. AYERS 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 27th day of January 1994. COPIES FURNISHED: Stephen J. Matala 32414 Marchmont Circle Dade City, Florida 33525 Lisa L. Elwell, Esquire Office of the Comptroller Department of Banking and Finance 1313 Tampa Street, Suite 615 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
