The Issue Whether Respondent failed to preserve and maintain broker records in violation of Section 475.5015, Florida Statutes. Whether Respondent committed culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Chapters 120, 455, and 475, and the rule promulgated thereto. Respondent is and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued License No. 600642 in accordance with Chapter 475. The last license was issued to Respondent as a broker of Cascade Referral Service, Inc., 2439 Bee Ridge Road, Sarasota, Florida. At all times material, Respondent was the president and registered agent of Knightsbridge Park International (KPI), a corporation under the laws of Florida. At all times material, Respondent was the registered agent of an entity called Knightsbridge Vacation Homes (KVH). Between August 14, 1999, through May 21, 2001, Respondent was an active broker/officer of Knightsbridge Realty, Inc. (KRI). In the Fall of 1999, Sharon Malecki (Malecki), a resident of Wisconsin, met with Respondent's wife, Janet Wilkes, who was vice-president of KPI, to discuss engaging KPI's services in managing Malecki's property in Kissimmee, Florida. On or about February 14, 2000, as a result of this initial contact, Malecki entered into a contract with KPI to manage her property. Respondent signed the contract as president of KPI. The contract required Respondent and KPI to provide general management services to Malecki and to provide a monthly accounting showing all income and expenses for a period of one year commencing on March 1, 2000. The contract also required Malecki to keep a balance of $500 as a "management reserve balance." Respondent and KPI were required to deposit any amounts held in excess of the reserve amount in Malecki's bank account. Implicit in the monthly accounting requirement was that KPI and Respondent would collect the rental proceeds from Malecki's property and remit the proceeds to Malecki. At the same time the parties executed the contract, Malecki sent KPI a check for $500 to be kept in the escrow account for incidental maintenance and repairs of the property. Between August 10, 2000, and August 24, 2000, KPI placed a tenant by the name of "Plant" in Malecki's property and collected $1,214.29 in rent from the tenant. Between August 29, 2000, and September 12, 2000, KPI placed a tenant by the name of "Lusted" in Malecki's property and collected $1,309 in rental income funds from the tenant. The monthly accounting for August of 2000, purports to represent that KPI paid Malecki $616.42 toward the balance owed. Malecki never received this payment. Respondent failed to remit any of the above-referenced funds to Malecki. Respondent sent Malecki a letter dated November 7, 2000, in which he terminated the management contract and promised to send Malecki a final accounting "as soon as possible." On or about January 2, 2001, Respondent sent Malecki a letter, in which he acknowledged that there had been a "major accounting breakdown." In the letter, Respondent promised to make an interim payment within the next week. Subsequent to receipt of the two letters, Malecki made various attempts to obtain an accounting of the rental proceeds due. Respondent never remitted nor accounted for the funds. At all times material, Respondent failed to account for the $500 deposit he held for the benefit of Malecki. In June of 1999, a real estate broker by the name of John Young (Young) referred Isabel Benitez (Benitez) to Respondent after she bought a home through Young. On or about June 23, 1999, Benitez signed a contract with Respondent to manage her property located at 7981 Magnolia Bend Court, Kissimmee, Florida. The contract period was for one year and was renewed for an additional year in June of 2000. Although structured in the form of a lease, there was a clear understanding that KPI and Respondent were performing property management services and were obligated to pay a guaranteed amount to Benitez every month. The contract required Benitez to place a $500 deposit with Respondent and KPI as a "management deposit" to be used for incidental expenses associated with the management of the property. In approximately August of 2000, Benitez stopped receiving monthly payments from KPI. During the latter part of 2000, Benitez made various attempts to contact Respondent to determine the whereabouts of the monies due her. On or about December 14, 2000, Benitez sent Respondent a letter, in which she requested the monies due her under the contract. On or about December 15, 2000, Respondent faxed to Benitez a response to her letter, in which he accepts her termination of the contract and confesses that he had "not been involved in property management matters, let alone accounting aspects " On or about January 2, 2000, Respondent mailed to Benitez a letter informing her that there had been an "accounting breakdown," and promising to make an interim payment within a week. A review of an accounting provided to Benitez, dated February 9, 2001, indicates that Respondent owes Benitez funds in excess of $8,473. At all times material, Respondent has failed to remit the funds due or otherwise account for said funds. Around February of 2001, Thirza Neal (Neal), a resident of Washington, D.C., engaged the services of KRI to manage her property located at 114 Dornock Street, Davenport, Florida. Neal delivered a check for $1,000 to a Chris Turner (Turner), who was an agent of KRI, for the "start-up of utility costs." At some point, Neal decided not to engage the services of KRI, and on March 12, 2001, Neal sent an e-mail to Turner, in which she terminated the management contract and requested a return of her deposit. The above e-mail contains an indication that it was copied to the attention of Respondent. On or about March 26, 2001, Neal sent a certified letter to Respondent demanding a return of the deposit. On or about March 28, 2001, Neal received a letter from a gentleman by the name of B.C. Murphy, referencing her letter to Turner, denying that the check had been deposited into KRI's account and informing Neal that he had purchased KRI during the previous year. Eventually, Neal determined that the bank had inadvertently deposited the check into KVH's account. Neal made several attempts to contact Respondent personally and through his attorney and received no response. Neal was eventually able to obtain a reimbursement from the bank. Respondent neither provided assistance to Neal, nor did he remit the funds on his own accord. At some point later, Petitioner began an investigation and David Guerdan (Guerdan) was assigned to investigate the case. During the course of his investigation, Guerdan conducted interviews of the complaining witnesses and Respondent. On or about September 26, 2001, Guerdan conducted an interview of Respondent. During the course of the interview, Respondent was unable to address the specifics of the complaints. Respondent told Guerdan that he was not involved in the day-to-day operations of the business. He stated that his wife and son actually ran the business and that they had "poor accounting practices, overspent and ran out of the money." During the interview, Respondent could not be specific as to the amounts due each owner. Guerdan was unable to determine whether Respondent paid the funds due to each owner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Florida Real Estate Commission issue a final order finding Respondent guilty of violating Subsections 475.25(1)(a) and (e) and Section 475.5015, as charged in the Administrative Complaint; and Impose a fine of $1,000 and suspend Respondent's license for a period of two years and require Respondent to make restitution to his former clients and complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 August, 2003. COPIES FURNISHED: Christopher J. De Costa, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1772 Brian John Wilkes 55 Pacific Close Southampton, England SO143TY Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Richard J. Culbertson, Respondent, is registered with FREC as a real estate salesman and at all times here relevant was so registered. In 1975 Respondent, with his wife, purchased residential property known as Lot 14, Block 61, Meadowlawn Tenth Addition in Pinellas County for $29,000. (Exhibit 6.) Some time thereafter the property was transferred to Aloha Pools, Inc., a corporation controlled by Respondent. The details of this transaction were not introduced into evidence but are not material to the issues here involved. At the time he purchased this property, Respondent was aware that the previous owner had purchased the property some two years earlier for $27,000 and had spent approximately $1,000 installing wall-to-wall carpeting. After purchasing the property Respondent replaced the air conditioning units at a cost of approximately $1,000. In 1975 Respondent leased this property to Elizabeth Coffee and her live-in companion, R. J. Connell, with an option to buy the property. The rental agreement provided for rent payments less than Respondent's mortgage payments. During the tenancy the tenants were frequently delinquent in their rental payments. During the time the parties occupied the premises, Respondent was in frequent contact with Connell trying to finalize the sale of this property. At this time Respondent suffered from cataracts on both eyes of sufficient severity that he was legally blind. In June 1976 Respondent requested Charter Mortgage Company to obtain a V.A. appraisal on this property for him. The property was duly appraised and Charter Mortgage mailed a copy of the appraisal to the real estate office where Respondent was still receiving mail but at which he was too blind to work. Subsequent thereto a copy of this appraisal was given to Connell by Respondent. At some time between the mailing of the appraisal report to Respondent and the Complaint filed by Connell with FREC the appraisal had been changed to $31,500 from $28,500 contained on the original appraisal report. At this time Respondent was physically incapable of writing over existing numbers due to his deteriorated vision. He is unaware of anyone else who may have altered the appraisal report. During the negotiations which were carried out between Respondent and Connell at their frequent meetings while the tenants were in possession, Respondent was asking $32,000 for the property and Connell was offering $31,000. Finally, on August 2, 1976, Elizabeth Coffee executed a contract to purchase this property for $31,000. According to her testimony the price agreed upon was not related to or affected by the appraisal. At the time the contract to purchase was entered into she and Connell had occupied the house for some 15 months and certainly had full opportunity to become aware of any conditions that would detract from the value of the property. At the closing which duly followed, the purchaser did not have enough money to satisfy the cash required over the mortgage assumed and Respondent took a note from Connell at no interest but due and payable one year from date of execution. Shortly before this note became due Connell remembered the appraisal report looked like it may have been altered and he obtained a copy of the original appraisal from Charter Mortgage. He then reported to the FREC that Respondent had defrauded him and he has not made payment on the note he signed for the additional cash required at closing. Respondent calculated the house's value and his asking price on the fact that the property had appreciated $2,000, less the cost of carpeting, while in the possession of the former owner and Respondent expected a like appreciation in value while he held the property. At no time did he ever consider selling the property for less than he had invested in it.
Findings Of Fact At all times material hereto, Respondent, Ralph B. Snyder, Jr. ("Respondent"), was a licensed real estate broker having been issued license No. 008299P. Respondent was the qualifying broker for Home Hunters V, Inc., a corporate real estate broker having been issued license No. 00221795, with a principal business address of 2829 Okeechobee Boulevard, West Palm Beach, Florida. In September, 1981, Respondent registered Home Hunters V, Inc., as a real estate brokerage corporation, with himself as qualifying broker. The office remained open until April, 1982. Respondent was not present in the West Palm Beach office of Home Hunters V on a full-time basis because, in addition to that business, he was involved in a construction business on Sanibel Island, Florida. In late September or early October, 1981, Respondent hired Greg Howle to manage the Home Hunters V office in West Palm Beach. At all times material hereto, Howle was not registered as either a broker or salesman. Respondent's business, insofar as here pertinent, consisted of maintaining card files of rental properties available in the West Palm Beach area, and advertising availability of those properties for the owners. When a prospective tenant came to Respondent's office in response to advertisements, those tenants would sign an agreement with Home Hunters V, Inc., and, after payment of a $60 fee, would be furnished information concerning available properties in the area that generally conformed to the types of properties prospective tenants were seeking. The standard procedure in Respondent's office was that the prospective tenant would first meet with Greg Howle, the office manager, who would have them execute the agreement with Home Hunters V, Inc., collect the $60 fee from them, and refer the tenants to other office employees. On February 13, 1982, Lucille and Whitfield Vye of Canton, Massachusetts, visited the office of Home Hunters V. They were seeking an apartment and visited Home Hunters V in response to an ad they had seen in a local newspaper. After speaking with two other employees in Respondent's office, the Vyes were referred to Greg Howle, the office manager. As a result of the discussions with Mr. Howle, Whitfield Vye signed a rental agreement with Home Hunters V, Inc., and paid a $60 fee to Mr. Howle. The contract signed by Mr. Vye indicated he sought a one- or two-bedroom furnished duplex or apartment that accepted children and pets. Although Mrs. Vye in her testimony indicated that they preferred a ground-floor apartment, there is no indication in the record in this cause that that desire was ever communicated to Mr. Howle. There is nothing in the contract between the parties to indicate that Mr. and Mrs. Vye were limiting their options to a ground-floor apartment. The contract between Home Hunters V, Inc., and the Vyes also provided specifically that: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. In addition, the contract also provided that ". . . [n]o refunds are made during 30 day period when vacancies can be provided in the area and price range of tenants as indicated in above agreement." During their meeting on February 13, 1982, the Vyes were furnished the address of a potential rental apartment belonging to a Mrs. Rodberg. Before Mr. and Mrs. Vye left the Home Hunters V office, Mr. Howle placed a telephone call to Mrs. Rodberg, the substance of which conversation is not apparent from the record in this proceeding. The Vyes proceeded to the address given to them by Mr. Howle. The apartment was located on the second floor of a building, and no one answered in response to their knocks on the door. Mr. Vye then placed a telephone call to the owner of the property, whose telephone number he had been furnished by Home Hunters V. Mr. Vye testified concerning the particulars of Mrs. Rodberg's conversation with him, but the observations made by Mrs. Rodberg to Mr. Vye constitute hearsay, and cannot be used in this proceeding to support a finding of fact. See, Section 120.58(1)(a), Florida Statutes. When they were disappointed in the nature of the apartment whose address they had been furnished by Home Hunters V, Inc., Mr. and Mrs. Vye returned to the Home Hunters office on Sunday, February 14, 1982. The office was, however, closed. Subsequently, the Vyes returned to the Home Hunters V office on February 15, 1982, and spoke with Mr. Howle. During this visit, the Vyes asked for a refund, and expressed their dissatisfaction with the apartment they had visited. Mr. Howle advised the Vyes that he would attempt to find them some other rental property, but that he could not refund their deposit for 30 days. Thereupon, the Vyes returned to their Massachusetts home and waited 30 days before writing a series of three letters to Greg Howle requesting a refund of the $60 rental fee. By this time, Mr. Howle had left the employ of Home Hunters V, Inc. The letters sent by the Vyes were addressed to Mr. Howle, and not to either the individual or corporate Respondent in this case. There is no evidence of record to indicate that either of the Respondents ever received notice of the Vyes' request for a refund as contained in the letters they wrote to Mr. Howle. Thereafter, the Vyes filed a complaint with the Department of Professional Regulation. On May 27, 1982, an investigator from the Department of Professional Regulation advised Respondent Snyder in a telephone conversation of the complaint received from the Vyes. The next day, Respondent Snyder sent the Vyes a refund in the amount of $57.
The Issue The issues in this matter are whether the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) proved that Derek Welling (Respondent) is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes; and whether Petitioner proved that Respondent is guilty of failing to account and deliver funds in violation of Subsection 475.25(1)(d)1, Florida Statutes; and if so, what is the appropriate discipline?
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Respondent is a licensed realtor and has been at all times material hereto, having been issued license number 0582890 under Chapter 475, Florida Statutes. In 1989, Respondent founded UK Realty, a real estate brokerage firm, with his son-in-law, Russell Christner. From 1989 thru the summer of 1996, Respondent primarily served as UK Realty's international sales representative while Mr. Christner served as its qualified broker. Respondent traveled to various trade shows primarily in Europe and encouraged customers to purchase rental properties in the central Florida area. In 1991, Respondent and Mr. Christner formed a short- term rental property management company known as Connoisseur Homes, Inc. (Connoisseur) to manage the rental properties of UK Realty's domestic and international clients. In 1993, Respondent and Christner sold a one-third interest in Connoisseur to Mr. Graham Greene, who immediately became president of Connoisseur and served as its day-to-day operations manager. Although Respondent maintained a one-third ownership in Connoisseur, he remained the company's international sales associate. Respondent was generally not involved in the day-to-day management and operations of Connoisseur and had little personal knowledge of the factual circumstances surrounding the client complaints that form the basis of Petitioner's allegations. Each of the allegations levied against Respondent in Petitioner's Amended Administrative Complaint involves complaints filed by property owners relating to contract services with Connoisseur. There is no evidence in the record that any of the property owners was dissatisfied with the services of Respondent or Connoisseur prior to the summer/fall of 1996. Hart Property In 1994, Michael Hart, a resident of England, engaged the services of UK Realty and purchased a rental home property in Davenport, Florida. Mr. Hart was referred to Mr. Richard Wilkes, a representative of Connoisseur, to manage his property. On May 17, 1995, Mr. Hart contracted with Connoisseur to provide rental management services. Mr. Hart placed an initial deposit with Connoisseur to purchase various items and maintained a $1000 balance in an escrow account to pay the annual taxes and monthly expenses associated with the management of the property. Pursuant to his contract with Connoisseur, Mr. Hart received periodic statements from Connoisseur detailing all moneys collected from tenants, escrow balances, and any other activity in his account. According to the statements Mr. Hart received, Connoisseur booked nine persons to stay in his property between October of 1996 and January of 1997. While Connoisseur received approximately $9,844.60 for these rentals, Mr. Hart received none of the rental proceeds. On or about January 3, 1997, Mr. Hart received notice from the Polk County tax collector indicating that the "tourist development tax" associated with his property was delinquent for the months of September, October, and November of 1996. In addition, the letter indicated that Connoisseur made a payment to Polk County for September 1996 that was returned for insufficient funds. Shortly thereafter, Mr. Hart was advised that the cable and electricity to the property had been disconnected for non-payment. Glass Property In May 1993, Mr. Colin Glass purchased a rental home in Davenport, Florida, and contracted with Connoisseur to manage the property. Pursuant to the contract, Connoisseur agreed to advertise and list the property, manage the reservations and timely pay the rental property's expenses. Mr. Glass agreed to receive $500.00 for each week that the property was rented minus a cleaning fee. Pursuant to the contract, Mr. Glass placed a $1000 deposit with Connoisseur to pay the initial maintenance costs associated with the property. Thereafter, Mr. Glass received periodic statements from Connoisseur detailing the funds received, occupancy, and expenses paid to manage his property. The statement for the month ending November 30, 1996, indicates that Connoisseur collected $5,290.00 in rental proceeds from tenants who rented the property between August of 1996 and January of 1997 and paid $110 for cleaning services on November 8 and 21, 1996. In November, 1996, Mr. Glass requested a detailed accounting from Connoisseur regarding his property. On December 6, 1996, Mr. Glass received a written letter on Connoisseur stationary, signed by Kelleen Newman, a Connoisseur employee responsible for preparing accounting statements during the relevant period. The letter advised Mr. Glass that Connoisseur owed Mr. Glass approximately $1,750.00 for payments received pursuant to bookings under the names Beaumont and Tullet. To date, Mr. Glass has not received the rental proceeds. In addition, Connoisseur failed to pay the property tax bill associated with the Glass property as required by the management contract, and it became delinquent. Hamlyn Property On September 22, 1993, John Hamlyn purchased a home in Davenport, Florida. Five months later, on February 22, 1994, Mr. Hamlyn hired Connoisseur to manage his rental property. Pursuant to the contract, Connoisseur agreed to advertise and rent the property, manage the collections, and pay the operational expenses. Mr. Hamlyn placed a $500.00 deposit with Connoisseur to perform the contract and was required to maintain that balance in the account. In November of 1995, Respondent and Connoisseur increased the required escrow balance to $1000.00. In January of 1997, immediately following the demise of Connoisseur, Mr. Hamlyn maintained an escrow account with Connoisseur. Mr. Hamlyn did not receive an accounting of the escrowed funds or a refund of the balance. The evidence is undisputed that Mr. Hart, Mr. Glass, and Mr. Hamlyn each delivered funds in trust to Connoisseur which were not accounted for or returned. The evidence is undisputed that Connoisseur, in 1996, received rental proceeds as agents on behalf of Mr. Hart and Mr. Glass, which were not remitted to the owners. The evidence is undisputed that Connoisseur, in 1996, failed to pay certain utility bills and tax bills as required in its contracts with Mr. Hart and Mr. Glass. Connoisseur's Collapse Connoisseur's operational and financial failure surfaced on September 13, 1996, when Mr. Green, the company's co-owner and day-to-day operations manager, without notice, resigned as President of Connoisseur and formed a competing property management company. To make matters worse, within days, Mr. Green hired key staff away from Connoisseur including Richard Stanton, Connoisseur's office manager, accountant and licensed real estate broker, as well as Dyer Scott, the company's book-keeper. Shortly thereafter, Mr. Green's new company was operational and selectively securing new management agreements with Connoisseur's client list. In response, Respondent immediately evaluated Connoisseur's financial and operational status and attempted to manage its problems. Respondent advised all of Connoisseur's homeowners of the company's status, including the departure of the key operational owner and employees, but tried to assure them that the company was headed in the right direction. In fact, in a news update dated October 15, 1996, Respondent advised all of the clients, including Mr. Hart, Mr. Glass, and Mr. Hamlyn of the following: Upon investigation we were appalled to find that most of our homeowners are waiting on payments and upon further investigation we found that in many cases payment had never been collected from the tour operator. This situation is being corrected immediately and manual invoices are being prepared for collection . . . I'm happy to say that approximately $200,000 in back bookings will be properly allocated to our homeowners this month. Connoisseur did not recover. Within two months, 150 of Connoisseur's 270 homeowners cancelled their management contract with Connoisseur and on January 1, 1997, Respondent sold his interest in Connoisseur to Richard Wilkes and received a total of $15,000.00. Respondent experienced complete financial loss as a result of the demise of Connoisseur. His home was foreclosed and his vehicle was repossessed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed against Respondent in this matter be dismissed. DONE AND ORDERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 3rd day of July, 2003. COPIES FURNISHED: Victor L. Chapman, Esquire Barrett, Chapman & Ruta, P.A. 18 Wall Street Post Office Box 3826 Orlando, Florida 32802-3826 Christopher J. DeCosta, Esquire Department of Business and Professional Regulation Hurston Building, North Tower 400 West Robinson Street, Suite N809 Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Charles Vincent Suter (Suter), is a licensed real estate salesman having been issued license number 0502107 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesman for Tom Roderick Realty, 2440 Palm Ridge Road, Sanibel, Florida. He has been licensed as a salesman since September 1987. Through a mutual friend, Mary Jane Briney, Suter was introduced in 1988 to Norma Winkler, a resident of Indianapolis, Indiana, who occasionally visited Sanibel Island near Fort Myers on vacation during the winter months. Winkler was interested in renting a three bedroom condominium on the beach in January and February 1989. Briney recommended to Winkler that she rent a unit at an apartment/condominium complex known as Janthinia located on Sanibel Island and that she use respondent as her rental agent. Relying on Briney's recommendation, Winkler agreed to rent the unit and telephoned Suter in September 1988 and requested that he make reservations for her. Although Suter did not normally handle rental transactions, he agreed to assist Winkler and thereafter made reservations with Executive Services, Inc. (ESI), a corporation which managed various units in the Sanibel area including Janthinia. On September 21, 1988, Suter sent Winkler a letter confirming her reservations for Unit 2A at Janthinia with an arrival date of January 26, 1989 and a departure date of February 23, 1989. The total rent, including tax, was $7,091.23. Suter also advised Winkler that she needed to furnish a 10% deposit, or $709.12, within ten days to secure the reservation. On September 30, 1989, Winkler sent a check in the amount of $709.23 made payable to Tom Roderick Realty. The check was deposited into the firm's escrow account the same day. On October 4, 1989, the realty company issued a check in the same amount to ESI as a reservation deposit for Winkler. After the deposit was forwarded to the real estate firm, Winkler changed her date of arrival in Florida from January 26 to January 20 but kept her date of departure the same. On December 9, 1989, ESI confirmed Winkler's reservation for those dates and sent a 10% commission to the realty company. The rental fee was shown as $8,395.42 less the deposit, or a total amount still due of $7,686.30. On January 30, 1989, Suter was paid $352.75 as his share of the commission. Approximately a week before her scheduled arrival, Suter telephoned Winkler and advised her the total amount due was $8,686.30, or $1,000 more than was reflected on ESI's statement. However, Winkler had requested that Suter furnish her with a VCR, liquor, piano and other items so Suter estimated the total bill would be approximately $1,000 greater than the rent still due. On January 20, 1989, Winkler, her sister, niece and a neighbor flew from Indianapolis to Fort Myers. They were met at the airport by Suter and two mutual friends. That same morning, and before Winkler arrived, Suter received by mail Winkler's check in the amount of $8,686.30. When Suter received Winkler's check, he immediately deposited it in his own checking account and not the firm's account. The check was made out to Suter, and not the realty firm, since Winkler had suggested that she make it out in that manner. Upon depositing the check, Suter immediately asked the bank to verify if it was good, and after receiving assurances that it was, he went across the street and wrote a $7,686.30 check to ESI to pay for Winkler's rent. When Winkler, Suter and other members of the group reached Janthinia, Suter advised Winkler that he owed her a refund. Winkler told him not to worry, that she would settle up later. She then had Suter purchase a quantity of liquor and obtain a VCR for her apartment. During one of the social gatherings attended by Winkler and Suter a few weeks later, the two had a falling out. At that point, Winkler telephoned Suter's broker and told him she was due money from Suter. On February 7, the broker confronted Suter around 4:00 p.m. regarding Winkler's allegation. Suter readily acknowledged that Winkler still had money due and that he would immediately pay her. He also acknowledged that the money had been placed in his own bank account rather than the broker's escrow account. Although Suter volunteered to hand carry a check to Winkler that afternoon, she insisted he pay it to the broker who would then write her a check. Suter did so within the hour and Winkler later received a check for $1,000 from the real estate firm. The broker then made an inquiry with the Division concerning Suter's actions, and upon advice from a Division attorney, filed a complaint against Suter. Winkler was described by a longtime friend as a 1,dangerous person", a "troublemaker", and someone who had caused problems for many persons over the years with various types of accusations, most of which were unfounded. Suter denied that he knew it was unlawful to deposit the rent check in his personal account since he considered the transaction as a favor for a friend. He blamed the entire episode on Winkler who became mad at him for paying too much attention to a young widow, and not Winkler, at a dinner party in early February 1989. There was no intent on the part of Suter to use the deposited funds in an illicit manner or to defraud his broker and Winkler. Even so, Winkler's check should have been deposited in the broker's escrow account. There is no evidence that Suter has ever been disciplined by the Division on any prior occasion. Further, Suter's initial reluctance to give a statement to an investigator was founded on the valid reason that he first wished to consult an attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts II, III, and IV of the administrative complaint and that Count I be dismissed with prejudice. It is further RECOMMENDED that respondent be given a $500 fine to be paid within thirty days from date of order. DONE and ENTERED this 8th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1990. APPENDIX Petitioner: 1-3. Partially adopted in finding of fact 1. 4. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 6 and 8. 9-10. Partially adopted in finding of fact 2. 11. Rejected as being unnecessary. 12-13. Partially adopted in finding of fact 6. 14. Partially adopted in findings of fact 7 and 8. 15-16. Partially adopted in finding of fact 10. 17-18. Partially adopted in finding of fact 12. 19-21. Partially adopted in finding of fact 10. Respondent: 1-2. Partially adopted in finding of fact 1. Partially adopted in finding of fact 2. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 5 and 6. 8-9. Partially adopted in finding of fact 5. 10-11. Partially adopted in finding of fact 8. Partially adopted in finding of fact 7. Partially adopted in finding of fact 9. 14-15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 10. Note - Where findings have been partially used, the remainder has been rejected as being cumulative, unnecessary, subordinate, irrelevant or not supported by the more credible and persuasive evidence. COPIES FURNISHED: Steven W. Johnson, Esquire P. O. Box 1900 Orlando, FL 32802-1900 Jerrold S. Stern, Esquire P. O. Box 112 Sanibel, FL 33957 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Darlene Keller, Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900
Findings Of Fact Angela Tarina Lee was residing at 3182 15th Avenue South on July 7, 1977. Lee leased this single family residence. Subsequently Lee ceased residing at 3182 15th Avenue South and began to reside at 622 13th Avenue South. Lee had the utilities discontinued at 3182 15th Avenue South and paid for the utilities at 622 13th Avenue South. According to Lee's testimony, Lee spent the nights at 622 13th Avenue South but returned during the day to 3182 15th Avenue South where her clothes and belongings were. At approximately this time, Lee ceased paying her rent on 3182 15th Avenue South, and Lee stated that her clothes and other belongings were stolen from that location. Initial negotiations with the landlord began in November, 1977. Shortly after initial negotiations began, the right of way agent attempted to contact Lee at 3182 15th Avenue South. The right of way agent attempted to conduct an inventory and was unable to contact Lee at that address and did not find evidence of any of her belongings at that location. After receiving written notice several days after the initial negotiations with the landlord began, Lee contacted the Department of Transportation and inquired about her rights Thereafter, she paid her back rent through December, 1977.
Recommendation Based upon the foregoing findings of fact and conclusions of law the Hearing Officer would recommend that the Department of Transportation deny the appeal of Angela Tarina Lee from the Department's decision to deny her relocation benefits. DONE AND ORDERED this 29th day of June, 1978, in Tallahassee, Florida. Hearings STEPHEN F. DEAN Hearing Officer Division of Administrative 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Marc A. Tenny, Esquire 8855 Ninth Street, North St. Petersburg, Florida John Rimes, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida
Findings Of Fact Peck Plaza Condominium was developed by Edwin W. Peck, Inc. The management of this condominium has been turned over to 2625 Management Corporation, Inc. (Association) a nonprofit corporation charged with the assessment of charges and fees for the maintenance and operation of the common elements and other duties not material to this determination. The Respondents retained ownership of the 29th floor which is leased to King Arthur's Roundtable, Inc., a Kentucky corporation which operates a restaurant and cocktail lounge in this space. The limited common element is an express elevator from the garage and lobby to the restaurant on the 29th floor. Electricity for the operation of this elevator is currently charged to the Association. Respondents retained control of the roof of the condominium which is leased to Motorola Corporation, apparently for installation of broadcasting equipment. The structure comprising the condominium "flares" out at the 28th floor, thus making the 28th and 29th floors approximately 40 percent larger than the lower 27 floors. A limited number of parking spaces are reserved for the lessee of the 29th floor and an additional 55 parking spaces are reserved for the patrons of the restaurant. The parking spaces are part of the common elements operated by the Association. The Declaration of Restrictions, Reservations, Covenants, Conditions and Easements of Peck Plaza (contained in Exhibit 1)(hereafter referred to as Declarations) provided that the regular assessment for units would be as follows: Unit 2 SW $ 25.00 monthly Unit 3 SW (Resident Manager's apartment) -0- 29th floor Unit 400.00 monthly All other units 75.00 monthly Unit 2 SW is the second floor lobby which provides access to the express elevator and is owned by Respondents. It occupies about the same space as a one-bedroom living unit. Assessments are levied to cover common expenses such as insurance for fire and extended coverage, vandalism and malicious mischief for units, common elements and limited common elements, public liability insurance for common elements, operating expenses, maintenance expense, repairs, utilities, replacement reserve and reasonable operating reserve for common elements. The developer reserved the right to subdivide the 29th floor into 4 apartments and until so modified the Declarations provide that its owner be assessed 533.32 percent of the regular assessments assessed against standard living units. ($75 x 5.3332 which is approximately equal to $400) The Declaration of Condominium (Exhibit 1) Schedule B establishes the percentage of undivided interest in common elements and common surplus. There the 29th floor is awarded 5.621 percent, the 28th floor is awarded 5.12 percent divided equally between the four units, and the remaining floors receive 3.72 percent divided between the four units on that floor. Unit 2 SW is awarded .202 percentage. Assessments have subsequently been raised to $90 for the standard living unit and a corresponding increase for the 29th floor and Unit 2 SW. At the Association board meeting on April 12, 1975 (Minutes thereof Exhibit 5) the issue of the electricity for the express elevator being charged to the Association was raised and the board approved a motion that, since the tenant of the 29th floor was keeping the top of the building lighted, they would consider this a "swap out" and continue to pay for the electricity for the express elevator. At the board meeting on April 10, 1976 the issue of the charge for electricity for the express elevator was again raised and after Mr. Peck advised that he would not comply with the Association's prior request to install a meter and relieve the Association of the expense of the express elevator, the board voted to refer the issue to Petitioner herein for resolution. The estimated cost of the electricity for the elevator is approximately $110 per month (Exhibit 4). The Declaration provides in part: "In connection with the operation of a restaurant or other business/commercial enterprise or the operation of apartments in the twenty-ninth (29th) floor Unit there will be constructed as a Limited Common Element (as same is hereinafter defined) an express elevator which will run from the garage and lobby (which are common areas on the second floor) directly to the twenty-ninth floor Unit, nonstop, and this elevator will be for the sole use and purposes of the owner of the twenty-ninth floor Unit except as otherwise provided herein. There is a LIMITED COMMON ELEMENT appurtenant to the twenty-ninth (29th) floor Unit in this condo- minium as shown and reflected by the floor and plot plans, known as the express elevator whether the use of the twenty-ninth (29th) floor is for the purpose of access to condominium Units or to a restaurant or other business/commercial use. This Limited Common Element is reserved for the use of the Unit appurtenant thereto to the exclusion of other units, and there shall pass with the said Unit as appurtenant thereto, the exclusive right to use the Limited Common Element so appurtenant. Expenses of maintenance, repair or replacement [sic] relation to the said Limited Common Element shall be paid for by the owner of the twenty-ninth floor Unit. In the event the Developer elects to subdivide the said twenty- ninth floor Unit, then the Limited Common Element appurtenant to the said twenty-ninth floor Unit known as the express elevator shall be reapportioned among the twenty-ninth floor Unit as so subdivided." Nowhere in the Articles, By-Laws or Declarations is specific provision made for the operating expenses of the limited common element. As noted above Respondent, at the hearing, contended that, following the April 12, 1975 meeting of the board, where the motion to accept the use of the exterior lights on the top of the building for the elevator electricity as a "swap out" was carried, he took action upon this "swap out". The action he took was to continue to pay the expenses of maintenance, repair or replacement of the express elevator, to continue to pay the assessment for the 29th floor and Unit 2 SW, to repair defects in the pool and air conditioning, and to correct the odor in the hall. Also his claim for $11,500 against the Association was not pressed. However when asked if that claim had been satisfied Mr. Peck replied, no. Clause 44 of Lease Agreement (Exhibit 6) for occupancy of the 29th floor provides: "Lessor agrees to use its best efforts to have separate meters installed at its expense for all public utilities used in relation to the demised premises. In the event it is unsuccessful, submeters will be installed for gas, water and other public utilities and the cost of utilities shall be prorated on a monthly basis." The above Findings of Fact are substantially in agreement with the Proposed Findings submitted by Petitioner and Respondent. Petitioner proposed findings that: The ownership of 2 SW is irrelevant to the proceedings does not comport to the evidence that 2 SW comprises the lobby from where there is access to the express elevator; and Each residential owner is assigned one parking space per unit is not supported by any evidence regarding the number of parking spaces assigned unit owners. However neither of these findings is material to the result reached. Respondent's proposed finding that the 29th floor is presently assessed $510 per month is not in agreement with the evidence that the owner of the 29th floor, who also owns Unit 2 SW pays an assessment of $480 per month for the 29th floor and $30 per month for Unit 2 SW. Other proposed findings inconsistent with the above findings have been fully considered and are neither relevant nor material to the conclusions below.
The Issue Whether or not the Respondent, Lino Suarez, illegally took possession of the apartment which he had rented to Roberto and Maria Vazquez, thereby violating Section 983.59(3)(c), Florida Statutes.
Findings Of Fact Lino Suarez is the holder of license number 23-12093H. This license is held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. The purpose of the license is to do business at a location known as the Mili Apartments, 10941 Southwest 7th Street, Miami, Florida. In late December, 1976, the Respondent rented apartment number 1 in the complex known as the Mili Apartments to Roberto and Maria Vazquez. At the time the apartment was rented by the Vazquezes, they gave Mr. Suarez a check in the amount of two hundred twenty dollars ($220.00) and that check was dated December 18, 1976. The amount of the check was for the payment of the balance of the rent that would be due in the month of December, 1976, at a rate of two hundred dollars ($200.00) a month, together with one hundred fifty dollars ($150.00) as security deposit. That check was written on an account in which there were insufficient funds and the check was returned because of that. Petitioner's exhibit No. 1 admitted into evidence is a copy of the check. Respondent's exhibit No. 2 is a copy of the debit memo from the bank of the Respondent indicating the return of the check written on insufficient funds and Respondent's exhibit No. 4 admitted into evidence is a copy of the bank records of the account of Mr. Vazquez upon which the check was drawn. Subsequent to the time of the check being written, efforts were made to collect the money and the Vazquezes paid two hundred twenty dollars ($220.00) cash payment to the wife of the Respondent for the amount of the security deposit and rent for December 1976. The Respondent saw Mr. Vazquez on January 7, 1977, at which time Mr. Vazquez wrote a check in the amount of two hundred five dollars ($205.00) for the payment of the January, 1977, rent to include five dollars ($5.00) late charge. A copy of this check may be found as the Petitioner's exhibit No. 2 and the original of the check may be found as part of the composite exhibit, Respondent's exhibit No. 1. The Respondent's exhibit No. 1 includes the original of the check and a debit memo from the bank of the Respondent showing that the check had been returned for insufficient funds. Further indication of the insufficient funds for the check may be found as Respondent's exhibit No. 3, which is a copy of the bank records upon which the January 7, 1977, check had been drawn. The January rent was never collected from the Vazquezes. The Respondent tried on numerous occasions in January and in February, 1977, to collect the amount of the January rent. During those times, he was unable to contact Mr. Vazquez and all his communications were with Mrs. Vazquez. In early March, a couple of days before March 4, 1977, Mr. Vazquez left Miami to go to New York. He did not return until March 21 or 22, 1977. On March 4, 1977, Mrs. Vazquez, who was at that time ill, left the apartment to stay with her mother-in-law during the pendency of her illness. She only took a few of her clothes at the time of her departure. When Mr. Vazquez and Mrs. Vazquez left the apartment, they made no effort to contact the landlord and apprise him of their pending absence. Sometime after the departure of Mrs. Vazquez, between the 18th and 20th of March, tenants in the building called the Respondent to notify him that they felt that the Vazquezes had left the apartment and that the apartment needed to be examined due to the strong odor which was emanating from the apartment. The Respondent went to the apartment between the 10th and 20th of March, 1977, and found the apartment still contained the belongings of the Vazquezes. There was garbage in the kitchen and bathroom areas which appeared to be very old and there was a similar amount of garbage in the refrigerator in terms of spoiled food. The food was spoiled in the refrigerator because the power had been cut off. There was nothing in the apartment which would tend to indicate to the Respondent what the Vazquezes' intentions would be about returning. Consequently, on March 22, 1977, the apartment after being cleaned up, was rented to another tenant. The Vazquezes returned on March 24, and demanded to reenter the apartment. In view of the events, as found in the rendition of the evidential facts, the Petitioner has failed to demonstrate that the Respondent has unlawfully recovered possession of the dwelling unit in terms of the statement found in Section 83.59, Florida Statutes. In fact, the Respondent has acted in accordance with the requirements establishing the exception to the rule of nonrecovery. This can be seen by examining the language of Section 83.59(3)(c), Florida Statutes, which states: (3) The landlord shall not recover posses- sion of a dwelling unit except: (c) When a tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit even if he is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the tenant has notified the landlord of an intended absence. The periodic rent was on a thirty-day basis and the evidence which the landlord found at the time of his entering the apartment between March 18 and 20, would show that the dwelling unit had been abandoned and if not abandoned, the apartment was not attempted to be reoccupied until March 24, 1977, which was a time greater than one-half of the time for periodic payments. Moreover, the rent was not current and the tenant had not notified the landlord of his intention to be absent. Consequently the Respondent was entitled to recover possession of the premises.
Recommendation It is recommended that the action against the Respondent, Lino Suarez, t/a Mili Apartments, be dismissed. DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Marcelo M. Agudo, Esquire 1647 South West 27th Avenue Miami, Florida 33145 Peggy Fisher, Esquire Legal Services of Greater Miami, Inc. 1393 S. W. 1st Street, Suite 300 Miami, Florida 33135
Findings Of Fact This matter arose from the sale of a certain apartment building in Dunedin, Florida, known as Piper's Ten. This building was owned by two foreign corporations, the principals of which are represented by a Mr. Eugene Morgan of Boston, Massachusetts. Douglas S. Kennedy, Defendant, is a registered real estate salesman whose license was registered with Lockhart Realty, Inc., of Seawalls Point, Florida, the broker for which was his then wife Trude Kennedy. The Defendant and his wife were involved in domestic difficulties which eventually lead to a divorce. When the Defendant and his wife separated sometime in late 1972, he sought out his friend and business associate, Eugene Morgan, who suggested that the Defendant move to Dunedin, Florida and reside in the model apartment at Piper's Ten. The Defendant heeded the suggestion and took on the assignment as resident manager of the Piper's Ten Apartments at a final salary of approximately $1,000 per month. According to the Defendant and Mr. Morgan, his prime responsibility was seeing that Morgan and his co-investors in the property "receive a fair shake with the local people in and around Dunedin, Florida." At the time the property was registered with a real estate broker of Dunedin, Florida, whose name is Mr. Woodrow Register, and he had an exclusive listing on the sale of Piper's Ten Apartments. The initial arrangement between Morgan and the Defendant was that the Defendant would live in the apartment rent free and he would be paid an amount to defray his expenses for the management responsibility. When the Defendant became dissatisfied with this arrangement approximately 3 weeks later, he notified Mr. Morgan that he could no longer remain in Dunedin under that arrangement. This set the stage for the new arrangement referred to above whereby the Defendant was to be paid $1,000 per month payable out of the proceeds, when and if the building was sold. According to Morgan, this arrangement was to last for at least 4 to 5 months or until such time as a purchaser was located to purchase the apartment building. During April 1973, Kelly Prior Realty of Dunedin produced a proposed purchaser for the property at the purchase price of $400,000 which was the amount set by the owners who had agreed to pay a real estate commission of 5 percent. Kelly Prior Realty prepared a proposed contract of sale and purchase and submitted it to the offices of the attorney for the seller, Raymond Argyros, who after certain modifications, submitted the contract to the sellers for their approval. At the closing in May 1973, Kelly Prior, the selling broker, received a full commission of 5 percent as agreed upon by their sellers in their open listing of the property. According to attorney Argyros, the Defendant received a check for $5,000 as agreed upon between the Defendant and Morgan and according to him, the contract erroneously referred to such payment as a commission. It is this $5,000 payment which is the matter of controversy in this hearing. According to Morgan, Defendant was hired to "see if he could get Morgan and his associates a fair shake with the local people in Dunedin respecting the management of the apartment building." Originally the two story building was primarily an office space on the lower level and approximately ten apartments on the upper level. The plan was to rent the upper level as a condominium and to lease the office space on the lower level. Morgan was unable to sell the condominiums on the upper level based on the fact that prospective purchasers did not want to buy condominiums in a building approximately 50 percent comprised of office space. With this fact, Morgan and his associates made the decision to convert the lower level to apartments as well. When this was done, the Defendant saw to it that the building was properly managed and provided feedback to Morgan in order to keep him advised at all times of the situation with the apartment building. When the building was sold, Kelly Prior Realty Company received the commission of $20,000 which represented 5 percent of the total purchase price and the Defendant received $5,000 for his efforts. In this regard, the Defendant received a check drawn in the amount of $5,000 and the check bore a notation that the amount represented a commission. When the Defendant noted this, he changed the face of the check to reflect that the amount paid was intended to be an agency fee for the sale of Piper's Ten. The Defendant played no part in the drafting of the purchase and sales agreement. After the closing, the Defendant also was given the furniture from the model apartment and he thereafter departed for Puerto Rico. Trude Kennedy, the Defendant's former wife, testified that Lockhart Realty was in no way associated with the sale of Piper's Ten. Trude Kennedy had several conversations with Mr. Morgan regarding the sales and problems which he encountered with Piper's Ten. However the basis of these statements involved other businesses which she had with Morgan regarding the sale and subdivision of other properties in and around Dunedin. Mrs. Kennedy was unaware of the amount paid to the Defendent and she made no claim for such funds when the payment was disbursed. Morgan denied that the amount in any way reflected a commission but rather was payment for the services which the Defendant rendered in the general upkeep and management of the building such that he could be fully advised at all times of the progress, if any, that the local realtors were having with the sale of the apartment building. With these facts, the undersigned is of the opinion that the $5,000 sum given to Kennedy represented the amount as per the agreement he had with Morgan. There was no evidence that he participated in any way with the sale of the building other than to advise Morgan of any efforts that the other local realtors played in locating purchasers. It was noted that the check which represented payment for these services indicated that the amount originally was a commission. However, the Defendant, when noting that the designation of a commission was included on the check, immediately advised Mr. Argyros, the seller's agent, to correct that mistake by placing a designation that the amount represented was intended to be a "seller's agent" fee. This correction was made prior to the time the check was deposited and it was done with the consent of attorney Argyros. There was no evidence that the Defendant demanded such amount as a commission for his efforts as a salesman or that he showed the property to prospective purchasers as a real estate salesman. Thus it appears that the amount paid to the Defendant was an amount given him for his services as testified to by Morgan. The amount paid also appears to correspond with the arrangement as testified to by Morgan. I therefore find that the $5,000 sum paid the Defendant represented an amount for services that he rendered, not as a real estate salesman, but rather, as a property manager of the Piper's Ten Apartment building.
