Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
Findings Of Fact Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued. DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, 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 2nd day of May, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 Michael E. Crane, Esquire 521 Landmark Building Naples, Florida 33940 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At the hearing, counsel for the petitioner attempted to introduce into evidence as an exhibit a computer printout showing respondent's license status. This document could not be identified by any witness called to testify in the proceeding and was not otherwise properly authenticated. The following colloquy between counsel for the petitioner, the Hearing Officer and the respondent occurred prior to the time respondent was placed under oath during the hearing: MR. JORDAN: Finally, Your Honor, we'd like to introduce as our next exhibit a computer printout showing Mrs. Steed's license status which reflects that her broker's license was effective 4/1/81. That would be Exhibit 23. MRS. STEED: Where are they located at? MR. JORDAN: That came out of Tallahassee, I believe. That's just a printout on your license. MRS. STEED: Do they show I'm inactive? MR. JORDAN: Let me see. This simply shows that as of 8/28/81 and you were licensed and your broker's license became effective 4/1/81 and your home address is 10164 Southwest 64th Street. MRS. STEED: None of that is true. THE HEARING OFFICER: She obviously cannot identify that document if it's something that came out of Tallahassee and she's never seen it before. MRS. STEED: It's inactive. THE HEARING OFFICER: Okay. Since Mrs. Steed is not represented by an attorney, I feel obliged to tell her it's the Board's responsibility to prove that she either was licensed at the time of the allegations in the complaint or something -- MRS. STEED: I am not a licensed real estate broker at the present time and I haven't been, but I just don't know the date that it changed. MR. JORDAN: The material time I think is back in `80 and `81 when this was going on. I can call your associate. MRS. STEED: I possibly was licensed then. I'm not saying I wasn't. I don't really know. I would say I was. THE HEARING OFFICER: As I said, it's the Board's responsibility to prove that up. MR. JORDAN: I think she's saying you still have it. It's just that it's inactive. MRS. STEED: I'm inactive. MR. JORDAN: You haven't given up your license; correct? MRS. STEED: No THE HEARING OFFICER: You're not offering that? MR. JORDAN: I'm not offering that. I think she agrees that she was licensed back in '80 and '81 when these transactions were going on. (TR. pp 59 and 60) No other evidence was offered during the hearing as to respondent's status as a licensed real estate broker in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent filed on September 2, 1981, as amended on December 1, 1981, be DISMISSED. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 28 day of July, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Mr. C. B. Stafford Conrad, Scherer & James Executive Director Post Office Box 14723 Florida Real Estate Commission Ft. Lauderdale, Florida 33302 Post Office Box 1900 Orlando, Florida 32801 Carolyn Steed 5951 S. W. 67th Ave. Fred Wilsen, Esquire Davie, Florida 33314 Florida Real Estate Commission 400 W. Robinson Orlando, Florida 32801
The Issue Whether the Respondent's real estate broker license should be disciplined based upon the alleged violations of Sections 475.25(1)(b),(c),(d)1. and (e), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Bernard L. Covington is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0178235 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker at 4383 U.S. Hwy. 1, Edgewater, Florida 34141. On September 6, 1990, Terra Mar Village's prospectus to sell proprietary leases in mobile home lots was approved by the Florida Department of Business Regulation. Included in said prospectus is a form Contract for Purchase and Installation of a Cooperative Unit and Manufactured Home at Terra Mar Village for use when lot was to be sold in said Village. On July 25, 1992, Respondent, through the actions of his agent, Alvin D. Booten, solicited and obtained a purchase agreement between sellers, Terra Mar Village Association, and buyers, Jack W. Miller and Jacqueline Miller for Lot 132 in Terra Mar Village. Respondent's agent represent that the buyers were purchasing a mobile home lot in fee simple at the Village. In actuality, they were only purchasing a proprietary lease in the lot. Al Booten, an unlicensed agent, was employed by Terra Mar Village, LTD. as a sales representative. In the course of his employment, he promised the Millers a deed to the property. They relied on his representations, and they put down their deposit on the lot. Booten never advised the Millers they were buying into a cooperative association. Respondent failed to use the approved Contract for Purchase agreement form contained in the prospectus approved in September 1990 by the Department in its dealings with the Millers. The Respondent failed to disclose prior to the closing that the buyers were purchasing only a proprietary lease in the lot. On January 14, 1993, the transaction closed with Respondent acting on behalf of Terra Mar Village, LTD. and Terra Mar Village Association, Inc. After closing, the buyers received the Prospectus and title policy. Upon examining their title insurance policy, they learned that they had purchased a proprietary lease, not a fee simple interest in the lot as has been represented to them by Booten. The mobile home park has gone into foreclosure and the ownership interest of the Millers, among others, in their lots have been put in jeopardy. The Millers had relied on the representations of the Respondent as a licensed broker in their decision to purchase a lot in Terra Mar Village. Respondent committed a breach of trust by failing to disclose that the lot being sold was by proprietary lease. On April 1 and May 10, 1993, buyer Reginald B. Randolph gave Respondent's unlicensed agent, Al Booten, two checks totalling $45,000 for the purchase of a mobile home and lot at Terra Mar Village. On May 10, 1993, Respondent closed the transaction without the knowledge or consent of the buyer. However, Respondent failed to have the title to the property recorded. Randolph was misled by the Respondent's agent Booten, who told Randolph and his wife that they could buy a lot on a canal in the Village. When the Randolphs discovered they had been deceived and demanded their money back, the Respondent refused to refund it. They also discovered the money was not being held in escrow. The Randolphs believed Al Booten was a licensed real estate salesperson because he claimed he was selling the lot. There were many problems associated with the park. The source of potable water at the park was not approved and a moratorium was placed on it by Volusia County. Later, Terra Mar Village, LTD. filed for bankruptcy, but it was denied. The Respondent seeks to blame the "recession" and the water problems for the difficulties he encountered with the Millers and Randolphs. However, Respondent collected their downpayments and misappropriated the funds after allowing them to be misled by his agent.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1 and (e), Florida Statutes, as charged in the Administrative Complaint. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of two (2) years and that he pay an administrative fine of $1,000. DONE and ENTERED this 10th day of August, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 10th day of August, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-14 Respondent's proposals. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bernard L. Covington, pro se 1034 Old South Lane Apopka, Florida 32702 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Florida Department of Business and Professional Regulation Division of Real Estate Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At one time respondent Raymond M. Ewing, Margaret A. Helms, and Charles J. Hess, Jr., all worked together as real estate salespersons for Jean Bryant Realty in Pensacola. At least since May of 1977, Mr. Ewing has been licensed as a real estate broker. He holds license number 0025647. Petitioner's Exhibit No. 1. Messrs. Hess and Harrison, who lives in Chicago, Illinois, had organized H & H Homes of Pensacola, Inc., and engaged in land development, and in building and selling houses north of Pensacola. Respondent Ewing knew that Hess and Harrison were in business together, although he did not know the particulars of their arrangements. (T. 65) Through Mr. Hess, Mr. Ewing met Arthur J. Harrison, who rented a townhouse he owned at Pensacola Beach for two weeks in 1978 or 1979. Mr. Hess had moved to Ocala, Florida when Mr. Ewing got a telephone call from him. Hess said he was back in Pensacola for a visit, and told Ewing that he needed money and would like to sell or mortgage "a house that he and Art [Harrison] owned on Ninth Avenue." (T. 67) Respondent Ewing inquired of Bob Barr, a loan officer at Pensacola Loan and Savings, about "putting a second on this house on behalf of Mr. Hess to generate some capital for him." (T. 68) Mr. Barr said he would need a "title letter." After Ewing reported to Hess that a title letter would be necessary, Hess asked him to obtain one, and Ewing requested Wesley Mayhall's opinion as to the title. Eventually Mr. Mayhall informed Mr. Ewing that title to the property was in Arthur J. Harrison. The property at 3937 North Ninth Avenue in Pensacola (the property) did indeed belong to Arthur J. Harrison, grantee on a warranty deed executed by George J. Wylie on March 18, 1977, and duly recorded in the public records of Escambia County on April 14, 1977. Exhibit to Deposition of Arthur J. Harrison. Undaunted, respondent Ewing arranged for a longtime friend, Robert William Harris, to look at the house, offering to sell it to Harris for $10,000.00 cash and assumption of an outstanding mortgage. The day Ewing showed Harris the house, Hess was also present, and Ewing told Hess the title was in Harrison. In reply, Hess said to Ewing, "'I have a deed from Arthur Harrison conveying it to H & H Homes.'" (T. 69) Mr. Harris agreed to buy the house for $8,000.00 down, assuming the outstanding mortgage. Two or three weeks later Hess appeared at Ewing's office and, according to Ewing, Hess said, "'Here is the deed to Harris,' or 'I have the deed for Harris, or some play of words around that. ['[Witness it.[']" (T. 70) Respondent Ewing obliged, signing a deed dated November 1, 1980, drawn in favor of H & H Homes of Pensacola, Inc., and purportedly executed by Arthur J. Harrison, whose signatur,e Ewing purported to witness. Ewing testified that he was in the middle of a telephone conversation and was holding the receiver in one hand when he signed with the other. Harrison did not in fact sign the deed or authorize its execution. At the time of the hearing, Mr. Ewing still "d[id]n't believe that" (T. 87) Hess had admitted to him forging Harrison's signature. Charles H. Hess, Jr., as president of H & H-Homes of Pensacola, Inc., executed a warranty deed to the property in favor of R. W. Harris on November 10, 1980. Mr. Ewing delivered the deed to Mr. Harris that day in Mr. Harris' office in exchange for two cashier's checks, one in the amount of $6,000.00 and one in the amount of $2,000.00. Hess got the proceeds of the larger cheek. Mr. Ewing told Mr. Harris he would deposit the smaller cheek in escrow, for disbursal to Hess, once the house was painted. In fact, Mr. Ewing pocketed the $2,000.00. (T. 82, 83) At hearing, he offered this explanation: [Hess] owed me something like $2,000.00. And it was one of those deals he was up here one day, he needed some money. I had some and I just said, okay, I can let you have some fora few days and you'll have to give it back to me, but this preceded the incident by, you know, some length of time. (T. 34) Mr. Ewing did not ask Hess for a promissory note when he made the loan supposedly repaid with Harris' check. (T. 80) After the LH house had gone unpainted for some time, Ewing paid Harris $500.00, telling Harris that he had already paid Hess the other $1500.00. Respondent Ewing "did not prepare a sales agreement . . . [in connection with the conveyance to Harris because he] wasn't thinking anything was going to come back to haunt [him]." (T. 84) At some point in "early November" of 1980, Mr. Harrison spoke to Mr. Ewing by telephone. Harrison had learned earlier, from the holder of the mortgage on the property, that Ewing had inquired about a purchaser's assuming the mortgage. When Harrison told Ewing he was not interested in selling the property, Ewing told Harrison that Hess had already accepted earnest money (although this was not accurate.) On Mr. Harrison's behalf, Margaret A. Helms rented the property in February or March of 1981. Mr. Harris noticed the tenant moving in and stopped to talk to the lady, who told him that she was renting from Ms. Helms. Mr. Harris did not confide in the tenant, but went to see his lawyer. On May 18, 1980, Mr. Ewing secured an owner's title insurance policy covering the property for Mr. Harris. Eventually Mr. Harris filed suit to quiet title and won. On appeal, however, Mr. Harrison prevailed and the judgment was reversed. Litigation is ongoing. To date, Mr. Harrison has expended some $6,000.00 in attorney's fees and costs.
Recommendation It is, upon consideration of the foregoing, RECOMMENDED: That petitioner reprimand respondent, impose an administrative fine of one thousand dollars ($1,000.00), and suspend his license for one year. DONE and ENTERED this 8th day of January, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of January, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Post Office Box 1900 Orlando, Florida 32802 Barry Z. Rhodes, Esquire 8198 Squire Road Pensacola, Florida 32514 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate 400 W. Robinson Street Orlando, Florida 32802 APPENDIX Petitioner's proposed findings of fact I through 4, 6, 7, and 10 have been adopted,, in substance, as being clearly and convincingly established by the evidence. Petitioner's proposed finding of fact 5 was not clearly and convincingly established, although the evidence suggested that the transaction had not closed when Harrison told Ewing the property was not for sale. The evidence as to Ewing's financial interest in the transaction is dealt with in paragraph 7 of the recommended order. Respondent's proposed order of disposition contains no proposed findings of fact so labelled. In general, Mr. Ewing's testimony has not been credited. The evidence did not show that he "did not know the instrument was allegedly forged" and did not prove that he "did not witness an act of forgery."
Findings Of Fact Respondent is now and was at all relevant times to this proceeding a registered real estate salesman. On October 10, 1973, pursuant to his plea of guilty, respondent was convicted by the United States District Court for the Southern District of Florida, Judge Peter T. Fay, of the offense of knowingly and intentionally possessing with intent to distribute marijuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1). On January 29, 1974, another judgment and commitment was entered for the sane count changing the terms of the sentence imposed. (Exhibits 3 and 4). By an information filed by the Florida Real Estate Commission, respondent was charged with violating F.S. Section 475.25(1)(e) in that he had been guilty of a crime against the laws of the United States involving moral turpitude. On February 7, 1975, respondent, through his attorney Howard Friedin, filed his answer to the information. On October 6, 1975, the Division of Administrative Hearing sent to the attorneys for petitioner and for respondent its notice of hearing to be held on November 4, 1975. The Executive Director of the Florida Real Estate Commission also forwarded the notice of hearing by registered/certified mail to the respondent's attorney on October 15, 1975. (Exhibit 1) Sometime prior to the hearing, the attorney for the respondent notified the Real Estate commission that respondent had left the State of Florida with the intention not to return and that he no longer represented respondent. It was not clear whether respondent himself had received actual notice of the hearing. Respondent did rot appear at the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that respondent's registration as a real estate salesman be suspended for a period of two years. Respectfully submitted and entered this 10th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones, Esquire Staff counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Paul E. Mathas c/o Property Resale Service, Inc. 230 N.E. 79th Street Miami, Florida 33138 Mr. Paul E. Hathas c/o Howard Friedin, Esquire 3050 Biscayne Boulevard, Suite 904 Miami, Florida 33137
The Issue Whether or not the Petitioner, Barbara A. Story, is eligible to sit for the Florida Real Estate Commission's licensure examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and exhibits, and the entire record compiled herein, the following relevant facts are found. On or about July 26, 1981, Petitioner, Barbara A. Story, filed an application for licensure as a real estate salesperson with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated September 28, 1981, Randy Schwartz, Respondent's counsel, advised Petitioner that the Respondent, at its duly noticed meeting of September 23, 1981, denied Petitioner's application for licensure. That letter recited that the specific reason for the Respondent's actions was baked on Petitioner's answer to question six (6) on the licensing application and her criminal record. In this regard, evidence reveals and Petitioner's application reflects that Petitioner was convicted in the Southern District of Florida (West Palm Beach), on September 8, 1978, of embezzlement of monies from a bank, in violation of Title XVIII, United States Code, 656. Petitioner was sentenced by the Honorable C. Clyde Atkins on that date, pursuant to the split-sentence provision of Title XVIII, United States Code, 3651, in that she was to be confined in a jail-type institution for a period of one (1) month, and thereafter, the remainder of the sentence of confinement [one (1) year] was suspended. Upon discharge from incarceration, Petitioner was to be placed on probation for a period of five (5) years under the special condition that she make restitution for the monies embezzled. Jurisdiction of that case was transferred to the Middle District of Florida, and on March 29, 1982, Petitioner was terminated from probation supervision. Robert E. Lee, a chief U.S. probation officer, who supervised petitioner while she was under the supervision of the subject office as a probationer, indicates that Petitioner reflected a favorable attitude toward her probation officer, remained gainfully employed and abided by all the rules of probation. Petitioner has never been arrested since her conviction in 1978, and has received only one (1) traffic citation during December of 1981. Petitioner has been continuously employed since her conviction and is presently a secretary/receptionist where she is in charge of and controls office business for Mobile Craft Wood Products in Ocala, Florida. Petitioner has been in charge of processing cash sales for the past four (4) years. Petitioner is presently making restitution to the savings and loan association that she embezzled. Charles Demenzes, a realtor/broker who owns Demenzes Realty Inc., has known Petitioner approximately one (1) year. Mr. Demenzes spoke highly of Petitioner and was favorably impressed with her desire to become licensed as a real estate salesperson. Mr. Demenzes is hopeful that Petitioner will be afforded an opportunity to sit for the licensure examination such that she can join his sales force, if she successfully passes the examination. Respondent takes the position that Petitioner, having been convicted of the crime of embezzlement, which involves moral turpitude and therefore is ineligible to sit for the Respondent's licensure examination. In this regard, counsel for Respondent admits that the Board, when acting upon Petitioner's application for licensure, did not consider the fact that Petitioner has been released from probation supervision inasmuch as that factor did not exist at the time Petitioner made application for licensure. Character letters offered by Petitioner were highly complimentary of Petitioner's reputation and abilities as an employee. (Petitioner's Composite Exhibit No. 1.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent enter a final order granting Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 13th day of October, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982.
