Findings Of Fact At all times material hereto, Gold Coast Mortgage Corporation (hereinafter "Gold Coast") was and is a corporation organized and existing under the laws of the State of Florida and conducting business in this state. At all times material here to, Southlantic Mortgage Corporation (hereinafter " Southlantic") was and is a corporation organized and existing under the laws of the State of Florida and conducting business in this state. At all times material here to, Thomas J. Boylan (hereinafter "Boylan") was and is the principal mortgage broker and president of Gold Coast and of Southlantic. At all times material hereto, Respondents were and are licensed as mortgage brokers by Petitioner and were and are conducting mortgage brokerage business in the State of Florida. For approximately two years, Janice L. DiBella was employed by Gold Coast. Although she became licensed as a broker, she was throughout that time period responsible for the bookkeeping functions at Gold Coast. Although she wrote and posted the company's checks, she was not authorized to sign them. Rather, the checks were required to be signed by Boylan and Sol Klein. Although DiBella believed that Boylan, Sol Klein, and Joel Pinsky each had a one-third interest in the company, Boylan was the head of the company, and DiBella took orders from him and worked only for him. Boylan ran the company on a day-to-day basis, Sol Klein was rarely in the office, and DiBella had only met Pinsky. In late June 1952, DiBella received a telephone call from Boylan, who was at the office of Attorney Pollack. Boylan instructed her to take the checkbook and ledgers to her mother's house, which was located near the office of Gold Coast. DiBella did so. After retaining the books and records of Gold Coast in her possession for approximately two to three hours and after extracting a promise to be paid $1600 in cash before she would return them, DiBella met Boylan and Sol Klein in the parking lot of the Deli Den located across the street from the office of Gold Coast. After Sol Klein handed her $1600 in cash in a white envelope for which she signed a receipt, DiBella watched Boylan and Sol Klein put the books and records she gave them into the trunk of Sol Klein's car. They then asked her to return to the office with them to locate any other important documents they should have, and DiBella did so. DiBella then went to Pan American Bank and removed documents from a bank vault and turned them over to Sol Klein. She made no list of the documents which she removed from the vault. Although none of the checks prepared by Janice DiBella payable to herself ever bounced, on occasion she wrote checks which exceeded the balance in the account at the time and informed Boylan that the amount of the check exceeded the balance in the account. When Alfred E. Klein responded to Gold Coast's ad for mortgage investors, he met Boylan. In his dealings with Gold Coast thereafter, Al Klein dealt with Boylan who acted in his capacity as president of Gold Coast. As a result of that relationship, on behalf of himself and family members Al Klein invested approximately $600,000 to $700,000 with Respondents. He even began acting as an independent broker buying and selling mortgages on behalf of Gold Coast, and discussions began regarding Al Klein becoming an owner of Gold Coast. Those discussions terminated in February 1982. On June 22, 1982, Al Klein went to Gold Coast's office and demanded that Boylan return to him $80,000 which Al Klein had given to Boylan for investment purposes. After a lengthy and heated "discussion" between Al Klein and Boylan, Boylan gave him two checks, one for $60,000 and one for $20,000. Both checks were written on the Gold Coast Mortgage Corp. escrow account, and both were notated that they represented an investment refund. When Boylan handed the checks to Al Klein, he told Klein that there was insufficient money in the escrow account to cover those checks but that if Klein put the checks through in the normal course of banking procedures they would be covered. After Al Klein deposited the checks, they were returned marked "insufficient funds." Those checks have never been subsequently honored, and Al Klein has never received from Gold Coast or from Boylan the money to cover those checks. Al Klein contacted Petitioner, and investigation of Respondents' books and records was authorized. Representatives of Petitioner went to Gold Coast on two different occasions to commence auditing the books and records but could not gain entrance to the office. They contacted complainant Al Klein to advise him of their lack of progress, and Al Klein advised them that he was in possession of the records. Accordingly, Paul Richmond, a financial examiner for Petitioner, went to Al Klein's office in Pompano Beach to conduct his audit. Richmond spent approximately one week in Al Klein's office auditing the books and records and copying various documents. The following week the office files were given to Attorney Pollack; therefore, Richmond followed the books and records and continued his examination in Pollack's office for approximately three or four additional days. At the time of Richmond's audit, the books and records of Gold Coast were totally inadequate for examination to determine compliance with the Mortgage Brokerage Act. However, no evidence was offered as to what documents might remain in the office of Gold Coast, as to what documents went from the bank vault to Sol Klein, or as to what documents went from DiBella's mother's house to Sol Klein's automobile trunk. Further, no evidence was offered as to how the records got from the trunk of Sol Klein's car in the parking lot of the Deli Den to the Pompano Beach office of complainant Al Klein or as to the dates of transfers between persons in the unidentified chain of custody. On June 17, 1951, John H. and Charlotte White executed a mortgage in the amount of $37,000 in favor of Gold Coast. Gold Coast thereafter executed a series of assignments, so that by the end of July 1951 the total amount of the $37,000 mortgage had been assigned by Gold Coast to various investors. On December 10, 1981, Gold Coast again assigned the White mortgage to seven different investors, which documents reflect that the White mortgage was in the amount of $37,700. The original group of investors did not reassign the White mortgage to Gold Coast until April 30, 1982. Boylan executed the assignment documents on behalf of Gold Coast as its president, as he executed the documents on behalf of one of the investors, Cius Corp., as its president. On March 18, 1981, Jean and Nadine Laham executed a mortgage in the amount of $90,000 in favor of Gold Coast. On April 14, 1981, Gold Coast assigned that $90,000 mortgage to four different investors. On December 10, 1981, Gold Coast again assigned that $90,000 mortgage to seven investors. The original group of four investors did not reassign the Laham mortgage to Gold Coast prior to Gold Coast's reassignment. On October 19, 1979, Clifford R. and Eileen Lockwood executed a $50,000 first mortgage in favor of Chase Federal Savings and Loan Association. On April 2, 1982, William L. and Jane C. Hubschmitt executed a $72,000 first mortgage on that same property in favor of Gold Coast. On May 5, 1982, the Lockwoods executed a warranty deed on that property to the Hubschmitts. On June 11, 1982, Gold Coast assigned its $72,000 mortgage to Marvin and Ann Tanner, who immediately reassigned $50,000 worth of that $72,000 mortgage to three investors. The assignment from Cold Coast to the Tanners and the assignments from the Tanners to those three investors are on the same Ramco form, were all witnessed and notarized by DiBella, and were all recorded simultaneously. DiBella also prepared the Hubschmitts' mortgage to Gold Coast, which mortgage instrument reflects it is a first mortgage. Al Klein was one of the investors to whom the Tanners partially assigned the mortgage assigned to them by Gold Coast. At the time, Boylan specifically represented to Al Klein that Klein was investing in a first mortgage. The records of Gold Coast examined by Petitioner's representatives were incomplete in that individual files lacked mortgage loan applications, closing statements, and title insurance policies. Additionally, a portion of the escrow account records have not been located. Petitioner did subpoena the records of Gold Coast's escrow account at Flagship Bank. According to those records, prior to June 17, 1982, that escrow account was overdrawn on 25 different occasions during 1982. From June 17, 1982, until the end of June, five additional overdrafts passed through that account. The balance in that account as of July 1, 1982, reflected that the account was overdrawn by $49,834.49. On June 17, 1952, a $55,000 check written on the Gold Coast Mortgage Corp. trust account at Pan American Bank of Broward was deposited in the Gold Coast Mortgage Corp. escrow account at Flagship Bank and was returned with the notation that the account on which it was written had been closed. On July 7, 1982, Boylan, as president of Gold Coast Mortgage Corp., filed a voluntary petition with the United States Bankruptcy Court for the Southern District of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be entered dismissing with prejudice Counts II, III, IV, V, VI, VII, XI, XII and XV of the Administrative Charges and Complaint; finding Respondents Gold Coast Mortgage Corporation and Thomas J. Boylan guilty of the allegations contained within Counts I, VIII, IX, X, XIII and XIV of the Administrative Charges and Complaint; and revoking all licenses issued to Respondents Gold Coast Mortgage Corporation, Southlantic Mortgage Corporation, and Thomas J. Boylan pursuant to the Mortgage Brokerage Act. DONE and RECOMMENDED this 31st day of October, 1983, in Tallahassee, Leon County, 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 31st day of October, 1983. COPIES FURNISHED: Brian H. Brody, Esquire Office of the State Comptroller 201 West Broward Boulevard, Suite 510 Fort Lauderdale, Florida 33301-1885 Robert C. Stone, Esquire 2450 Hollywood Boulevard Hollywood, Florida 33020 The Honorable Gerald Lewis Office of the Comptroller The Capitol Tallahassee, Florida 32301
Findings Of Fact Florida Real Estate Commission is a 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, Florida Statutes, and Chapters 120, 455 and 475, Florida Statutes, and their implementing rules. Respondent Louis Diabo is now and was at all times material hereto a licensed real estate broker holding license number 0146400. The last license issued was as a broker in limbo with a home address of Post Office Box 2386, Marathon, Florida 33050. On or about July 13, 1988, Ms. Diabo solicited and obtained a one (1) year exclusive right to sell agreement from Anthony and Milagros P. Bonachea, as owners, to sell vacant land located in the Florida Keys, further described as Lot 11, Block 16, Coco Plum Beach Subdivision. On or about March 13, 1989, Ms. Diabo solicited and obtained a contract for sale and purchase of Lot 11, Block 16, Coco Plum Beach Subdivision, between Duane W. Lewis and Helen F. Lewis, as buyers, and Anthony and Milagros P. Bonachea, as sellers, for a total price of $34,900. Ms. Diabo drafted the contract for sale and purchase. In its paragraph VII, "Restrictions, Easements, Limitations," the buyer accepted title subject to zoning, restrictions, prohibitions and other requirements imposed by governmental authority, but Ms. Diabo added that nothing would prevent use of the property for the purpose of "single family" housing. As a real estate professional and as the listing agent Ms. Diabo was aware that she was under a duty and an obligation to know the correct zoning, restrictions, prohibitions and other requirements imposed by governmental authorities on the property she listed for sale. She also knew that there was uncertainty about whether county development regulations under consideration might require the buyer to obtain transferrable development rights from other property owners in the Keys to build on the vacant lot being sold to Dwayne and Helen Lewis. Ms. Diabo owed Mr. and Mrs. Lewis a duty and they reasonably expected Ms. Diabo to inform them about governmental restrictions that might limit the use of the real property as a single family homesite. The transaction closed on or about April 7, 1989. Subsequent to closing, Mr. & Mrs. Lewis learned that they would have to purchase from $9,000 to $18,000 worth of transferable development rights (TDRs) in order to build on the vacant lot they bought through Ms. Diabo. Ms. Diabo had not explained to Mr. and Mrs. Lewis that they might be required to buy transferable development rights from another landowner to build on their lot, but there is no proof that such restrictions were effective at the time she dealt with the Lewises. There is no evidence in the record showing when the requirement to obtain transferrable development rights went into effect. As a consequence, it is not possible to determine whether Ms. Diabo failed to disclose to Mr. and Mrs. Lewis a zoning or use restriction in effect at the time of their purchase while she had asked Mr. Lewis to check on the zoning with the county building official, this did not relieve her of her own duty to investigate under Paragraph VII of the contract, and tell the purchasers of any limitations on building a single family home on the property. Petitioner failed to demonstrate, however, that any restrictions existed as of the time of the closing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued and filed by the Florida Real Estate dismissing the Administrative Complaint DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 4th day of February, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6140 All but proposed paragraph 12 have been accepted and used, with appropriate editing, in this Recommended Order. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Louise Diabo, pro se 3015 Seville Street Apartment 14 Fort Lauderdale, FL 33304 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case. RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of June, 1986. COPIES FURNISHED: John B. Root, III Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A. 338 N. Magnolia Avenue, Suite D Orlando, Florida 32801 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DEPARTMENT OF BANKING AND FINANCE, Petitioner vs. CASE No. 86-0328 TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision: In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing. DATED this 13th day of May, 1986. JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE Office of the Comptroller GORHAM RUTTER, JR., P.A. 400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801 ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT Telephone: (305) 423-5116 Telephone: (305) 841-7667 TERRY E. CHRISTENSEN, Respondent EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0024293 TERRY E. CHRISTENSEN, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, CASE NO. 0021931 vs. TEC REALTY, INC. AND TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case. STIPULATED FACTS AND CONCLUSIONS OF LAW Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505. Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo". Respondents admit that they are subject to the provisions of Chapters 455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto). Respondents admit that the Administrative Complaint contains no disputed issues of material fact. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act. STIPULATED DISPOSITION Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation. SIGNED this day of , 1983. (filed document undated) SWORN TO AND SUBSCRIBED Respondents before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC Realty, Inc. Notary Public My Commission Expires: Notary Public, State of Florida My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc. Approved this 21st day of June, 1983. John Huskins, Staff Attorney Department of Professional Regulation Legal Section 400 West Robinson Street, 308 Post Office Box 1900 Orlando, Florida 32802 (305) 423-6134 Approved this 13th Fred Roche, Secretary day of June, 1983. Department of Professional Regulation JH/dm 6/6/83 EXHIBIT 2 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 0024293 DOAH NO. 83-346 TERRY E. CHRISTENSEN and TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345 Respondents /
Findings Of Fact The Florida Real Estate Commission is charged under Chapter 475, Florida Statutes, with the licensure of real estate salesmen. The Petitioner's application for licensure was denied by the Florida Real Estate Commission. The Petitioner requested a formal hearing to review the Commission's action in denying his application. Notice of the formal hearing in this master was provided to Alan Michael Lopez at 3325 Bayshore Boulevard, Apartment D-11, Tampa, Florida 33609, and to the Department of Legal Affairs at 400 West Robinson Street, Suite 212, Orlando, Florida 32801. The Petitioner did not appear and did not present any evidence in support of his application for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the action of the Florida Real Estate Commission in denying the application for licensure of Alan Michael Lopez be affirmed. DONE and RECOMMENDED this 3rd day of August, 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 3rd day of August, 1983. COPIES FURNISHED: Mr. Alan Michael Lopez 3325 Bayshore Boulevard, D-11 Tampa, Florida 33609 Ralph D. Armstead, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32801 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Respondent is a licensed real estate broker holding license number 0111816 registered with Florida Gold Coast Real Estate III, Inc. of Royal Palm Beach, Florida. The Petitioner is an agency of the State of Florida charged with regulating the licensure status of real estate salesmen, broker salesmen, and brokers in the State of Florida. The Respondent was associated with Jim Graham, Inc. from March 13, 1978, and signed a change of registration form "401" requesting that his license be changed from registration with Jim Graham, Inc. to Florida Gold Coast Real Estate III, Inc. on July 3, 1979, also signed by his new broker, Martin Steinhardt on July 3, 1979. Some time in about the first week of June, 1979, one Keva Davis, a prospective residential real estate purchaser, contacted the Respondent's wife who was also at that time associated with the office of Jim Graham, Inc. to request her to show her residential property. She showed Keva Davis a number of residences, but no purchase was contracted for at that time. The Respondent's wife, Christina Banks, gave notice to Jim Graham, Inc. that she was leaving its employ and she applied for a transfer of her certificate to Gold Coast Real Estate III, Inc. as evidenced by her check of June 27, 1979, made out to the Florida Real Estate Commission. She gave notice that she and her husband were leaving on a trip to Europe. She left for Europe sometime after June 20, 1979, and her husband was to follow later after concluding certain business. Keva Davis contacted her regarding viewing certain residential property and she referred Ms. Davis to her husband since she was about to leave on her trip. The Respondent notified Jim Graham on or about the 1st of June, 1979, that be was no longer working for him. He actually last worked for Graham in late May of 1979. He and his wife bought their passports for their trip on June 20, 1979, and he recalls submitting his change of employment form to the Board of Real Estate before July 1, 1979, and indeed was already a real estate instructor with a subsidiary of Gold Coast before that time. He candidly admitted that the application form in the Petitioner's Exhibit 3 indicates that he and his new broker, Mr. Steinhardt, signed that form on July 3, 1979, but his honest belief was that he sent the form in to the Board of Real Estate prior to July 1st. In any event, Keva Davis contacted him on July 1, 1979, at his home and informed him that she had been shown certain property by his wife, and since his wife was out of town she recommended that Keva Davis engage him to show her another piece of property. He showed her the property and the next day, July 2, 1979, Keva Davis agreed to purchase it and signed the deposit receipt and sales contract and gave Vannoy Banks a check for $500.00 earnest money deposit, made out to Florida Gold Coast Real Estate. The sale of the subject residence never "closed" apparently because Keva Davis did not qualify for financing. Upon her request Mr. Banks immediately returned the $500.00 deposit. On July 1 and 2, 1979, Mr. Banks was not an associate of Jim Graham, Inc. and Ms. Davis did not seek his services as an associate of Jim Graham, Inc.; she rather called him at home on a referral by his wife. There was shown to be no connection between her request for the Respondent's services and his tenure as an associate of Jim Graham Inc. On July 1st, and thereafter, the Respondent was not in the employ of Jim Graham, Inc. Jim Graham, the former broker employing the Respondent, has never claimed or sought a real estate commission with regard to the subject transaction. The transaction occurred approximately a month after the Respondent informed Jim Graham that he would be doing no more work for him and after he had gone to work in June as a real estate class instructor on behalf of a subsidiary of Florida Gold Coast Real Estate III, Inc. Keva Davis was represented by the Respondent's wife and Respondent in the attempted real estate transaction, and never paid or was asked to pay a real estate commission to Jim Graham ore Jim Graham, Inc., nor for that matter to Respondent or his wife. The earnest money check or deposit check was placed immediately in the escrow account of Florida Gold Coast for whom he believed to be the proper broker to serve as his escrow agent. The deposit money was promptly refunded to Ms. Davis. She suffered no detriment in the transaction, nor did any member of the public, nor did Jim Graham, apparently, because he never sought payment of any real estate commission in spite of the fact that he filed a grievance against the Respondent. In that connection the evidence establishes, through the testimony of the Respondent, as corroborated by other evidence, that Jim Graham apparently owed the Respondent some money. A civil action was filed by the Respondent resulting in his recovering a judgment against Jim Graham in excess off $16,000.00, during the course of which litigation Jim Graham made representations to the Respondent that he would file the subject grievance if the Respondent did not voluntarily dismiss his lawsuit. The civil action proceeded to judgment and the instant proceeding was initiated by Jim Graham's complaint to the Petitioner. The undersigned finds that the Respondent honestly believed that his employment relationship with Jim Graham, Inc. was validly terminated and that he had no intent to defraud or otherwise harm Jim Graham or Jim Graham, Inc. It is true, however, that the application form by which he effected transfer of his certification to the new employment with Florida Gold Coast was not filed until July 3, 1979--the day after the transaction with Ms. Davis. Steven Hoyt, a mortgage officer for Manufacturer's Hanover Trust Company, who in July, 1979, worked for Margaretten Mortgage Company and attempted to finance Ms. Davis' purchase of the house, is familiar with the Respondent's reputation in the real estate business and knows him to have a reputation for honest dealing.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, as well as the candor and demeanor of the witnesses, it is RECOMMENDED: That the Respondent, Vannoy Banks, be found guilty of a violation of Subsection 475.42(1)(b), Florida Statutes, and that the penalty of a private written reprimand be imposed upon Respondent. DONE and ENTERED this 30th day of September, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of September, 1982. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation - Legal Services Post Office Box 1900 Orlando, Florida 32802 Vannoy Banks 1025 Congress Avenue West Palm Beach, Florida 33409 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The central issues in this case are whether Respondents are guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Department is the appropriate state agency charged with the responsibility of disciplining real estate licensees. At all times material to the allegations in the administrative complaint, Respondent, O'Hayon, was a licensed real estate broker, license no. 0236925. At all times material to the allegations in the administrative complaint, Respondent, Gold Coast, was a corporation registered as a brokerage entity, license no. 0231581. On June 2, 1986, O'Hayon registered with the Division of Real Estate as broker and an officer of Gold Coast. At that time, the business location for Gold Coast was 9121 North Military Trail, Palm Beach Gardens, Florida. On March 25, 1988, the business location of Gold Coast was changed to 3585 Northlake Boulevard, Palm Beach Gardens, Florida. On September 30, 1988, the broker's license held by O'Hayon became inactive due to the non-renewal of the corporate registration for Gold Coast. According to the Department's records and the Election of Rights filed by O'Hayon, O'Hayon's address is 12999 Calais Circle, Palm Beach Gardens, Florida 33410. On February 19, 1988, J. Edward Lemon as broker of record for Respondent, Gold Coast, wrote to the Department to notify it of "many short falls." Mr. Lemon expressed concerns that Respondent, O'Hayon, had misappropriated monies belonging to the company. On February 25, 1988, Larry E. Whitten, an investigator employed by the Department, performed an informal audit of Gold Coast bank accounts. Gold Coast's escrow account was overdrawn in the amount of $1459.66. According to Whitten's calculations, the account should have held approximately $37,285. In order to make up for the lost funds, Lemon deposited approximately $45,000 into a new escrow account to cover the missing funds. Mr. Lemon also attempted to locate records to determine how the funds had been expended. Unfortunately, O'Hayon had not maintained records to explain the expenditures. Respondent, O'Hayon, misappropriated Gold Coast escrow funds to pay his home mortgage payment and other personal expenses. O'Hayon was a trustee and signatory on a realty group trust account. This account was to be maintained in accordance with an agreement executed by a group of realtors who sought to pool their resources to create a fund to defend, compromise or satisfy claims which were not covered by their errors and omissions insurance. O'Hayon was never authorized to remove funds from this account. Nevertheless, O'Hayon did withdraw funds from the group trust account to pay personal expenses. These monies were never returned or repaid.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking the real estate broker's license held by Respondent, Joe O'Hayon. DONE and RECOMMENDED this 9th day of March, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 9th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4039 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 7 are accepted. With the correction of the amounts in dispute, paragraph 8 is accepted. Paragraphs 9 through 13 are accepted. COPIES FURNISHED: James H. Gillis Senior Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Post Office Box 1900 Orlando, Florida 32802 Gold Coast Properties of the Palm Beaches, Inc. 355 Northlake Blvd. Palm Beach Gardens, Florida 33410 Joe O'Hayon 12999 Calais Circle Palm Beach Gardens, Florida 33410 Darlene F. Keller Executive Director DPR, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts are found: According to the files and records of the Florida Real Estate Commission, respondent Greene F. Isaacs received his initial salesman license on April 12, 1979 and his initial broker license on April 29, 1980. He is currently a licensed broker holding license number 0308665. By an Order dated June 25, 1980, the Kentucky Real Estate Commission revoked the real estate broker's license of respondent Green F. Isaacs.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 475.25(1)(g), Florida Statutes, and that respondent's real estate broker's license number 0308665 be suspended for a period of one (1) year. Respectfully submitted and entered this 22nd 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 22nd day of July, 1982. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David F. Kern, Esquire 516 Lakeview Road, Villa III Clearwater, Florida 33516 Mr. C. H. Stafford Fred Wilsen, Esquire Executive Director Real Estate Commission Real Estate Commission State Office Building P. O. Box 1900 400 West Robinson Street Orlando, Florida 32801 Orlando, Florida 32801
