The Issue Whether Hellender violated the provisions of Section 475.25(1)(a), Florida Statutes.
Findings Of Fact Hellender is a registered real estate broker holding license number 0038269 issued by the Florida Real Estate Commission. Hellender had a listing for the sale of real property owned by Horace E. and Margaret C. Young. An offer to lease with option to purchase was made by Richard W. and Diane B. Milligan through their realtor, Susan Seligman, who was in contact with Seligman several times November 26 concerning the availability of the property and terms of the lease-purchase agreement. Both the Youngs and the Milligans did not live in the Orlando area where the two realtors and property were located. Susan Seligman, a broker-salesperson, presented Ralph E. Hellender with a Contract for Sale and Purchase when she met with Hellender between 6:00 and 7:00 p.m. on the evening of November 26, 1976. This offer, which was received into evidence as Exhibit 1, expired at 12:00 noon on November 27. Hellender took the contract and indicated that he would communicate the offer to the Youngs. Susan Seligman did not accompany Hellender to communicate the offer as is the general custom, because she needed to pick up her children from a football game that evening. Mrs. Ingrid Hellender, a broker salesperson, received a call later on the evening of November 26, 1976, from Susan Seligman. The general topic of the call was the fact that the contract which Seligman had given Mr. Hellender earlier that evening provided for conventional financing of the purchase, and Seligman had second thoughts about the Milligans' desires on financing. She requested that she be given the opportunity to check with the Milligans to determine whether they intended to use conventional or FHA financing. At this point a conflict developed in the testimony of Mrs. Seligman and Mrs. Hellender regarding whether Mrs. Seligman requested that Mr. Hellender hold the contract or whether Mrs. Seligman requested that he present the offer with reservations concerning the nature of the financing. In any event, Mrs. Hellender advised her husband to hold the contract. Similarly, a conflict exists in Mr. Hellender's and Mrs. Seligman's testimony concerning whether Hellender said that the offer has been accepted by the Youngs. Mrs. Seligman stated that Mr. Hellender advised her on November 27, 1976, that the Youngs had accepted the offer. Hellender stated that he did not present the offer and therefore there was no basis for him to communicate an acceptance to Mrs. Seligman and did not communicate an acceptance to her. It should be particularly noted that Mrs. Seligman stated that on November 27 she had Mr. Hellender agreed that the Milligans should execute a new contract on Hellender's forms when the Milligans were to be in Orlando on December 1, 1976. It is also noted that Mrs. Seligman did not request telegraphic confirmation of the acceptance by the Youngs of the offer which she initially submitted to Mr. Hellender, although telegraphic confirmation is the generally accepted practice when dealing with an out-of-city seller and was not standard practice in the real estate firm with which Mrs. Seligman worked. The Hearing Officer discounts the testimony of Mrs. Seligman that Hellender told her the Youngs had accepted the offer because she did not request written confirmation of the acceptance, and because Mrs. Seligman stated that a second written offer was to be prepared on December 1, 1976. All the realtors who testified stated that it was the custom to obtain telegraphic confirmation of an offer from an out-of-town seller. Mr. Seligman, the broker for Mrs. Seligman's company, stated this was the general procedure for his company. Although the record is unclear whether Mrs. Seligman talked with Mr. Hellender before noon or after noon, she was aware the offer expired at noon November 27 and she did not press for written confirmation of acceptance before noon. Instead, she agreed to the preparation of a second offer is totally contrary and repugnant to any theory of acceptance of the first offer. Therefore, the Hearing Officer finds that there was no acceptance of the first offer communicated by Hellender to Mrs. Seligman. Mrs. Seligman may have formed the opinion that there was an acceptance because Mr. Hellender agreed to the terms presented in the first offer, but her agreement to a second offer to be prepared is in fact and law inconsistent with any assertion that the first offer was accepted. Mrs. Seligman stated, that it is clear from the actions of Mr. Hellender, that they expected a second contract to be presented in behalf of the Milligans. This explains his call to Mrs. Seligman advising her on December 5 that there was activity of the property. It also explains why December 6 he did accept a second offer on the property which was presented by Joe Deligna which he and Delinga communicated to the Youngs together as is the general custom after no offer was presented by the Milligans on December 1. Lastly, it explains why Hellender contacted Mrs. Seligman immediately after the Youngs had accepted the offer by the Maccagnanos and confirmed it telegraphically.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Ralph E. Hellender. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of March, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esq. 400 West Robinson Street Orlando, Florida 32801 Mark A. Koteen, Esq. Post Office Box 3431 Orlando, Florida 32802
Findings Of Fact Respondent, at all times pertinent, was a registered real estate salesman holding license number 0314085. This license is currently under suspension as a result of disciplinary action by Petitioner. Respondent was, at all times pertinent, the President and a stock holder in D.S.A.E., Inc. D.S.A.E., in turn, was the owner (or co-owner with another corporation) of a tract of land located adjacent to U.S. Highway 27 in Broward County. Respondent, acting in his capacity as a real estate salesman, sought buyers for segments 1/ of the U.S. 27 property. He had made earlier sales of other property to Mrs. Lottie Kay and her son Michael Kay, and contacted the former in October, 1980, regarding the U.S. 27 property. The D.S.A.E. tract was zoned B-3 (business) on that portion which fronted U.S. 27. The rear segments were zoned A-1 (limited agriculture) and did not front U.S. 27. Initially, Respondent mentioned segments being offered for $60,000 and $24,000. However, Lottie Kay indicated that she could not afford the higher priced segments (which were zoned B-3). Lottie Kay asked Respondent to show her the property, and a visit to the general area was made. However, Respondent told her they could not get to the property which he said was located "on the other side of the construction." After visiting the area, she was not aware of the actual location of her property or of its character. 2/ She continued to believe that the property was "right on" U.S. 27. She based this belief on Respondent's original sales presentation rather than her visit to the area. The segment she purchased is about one quarter of a mile from U.S. 27. Lottie Kay was also confused as to the zoning on the property. She believed it was "commercial" and does not recall being told of the agricultural zoning by Respondent until about a year after the purchase. Her son, Michael Kay, who was present during a part of Respondent's initial sales presentation, heard only the B-3 zoning mentioned. Since he was not present throughout the discussion, he could have missed Respondent's reference, which he claims to have made, to the agricultural zoning on the back segments. On October 8, 1980, Lottie Kay, as buyer, contracted with Respondent on behalf of D.S.A.E. and a third party corporation, as sellers, to purchase "Tract 14" for $24,000 on an "agreement for deed." Under the terms of the contract, Lottie Kay paid $4,000 down and was to pay $215.59 per month thereafter beginning in November, 1980. Lottie Kay made the monthly payments through 1983. When she missed her first two payments in 1984, Respondent offered to reduce the contract price by $2,000 if she would resume monthly payments and make up the missing payments. Lottie Kay agreed to this modification of the contract, but discontinued further payments in April, 1984. Lottie Kay bought this property for speculation in reliance on Respondent's claim that its value would increase substantially in the immediate future. Respondent showed her newspaper clippings which supported his claim that the general area was one of future growth. He predicted her segment would be worth at least $30,000 in one year and stated that as to possible appreciation, "The sky's the limit." Respondent did not, however, point out that Lottie Kay's property could not be resold for any use other than agriculture since her segment was too small for even a home site under the existing zoning. Respondent also neglected to advise her that the property was underwater much of the year, and would have to be filled and probably permitted before any development could take place. The testimony of a real estate appraiser called by Petitioner established that the property was worth about $750 when purchased by Lottie Kay in October, 1980. 3/ This valuation was based on the witness' study of nearby land sales over a period of years as well as his inspection of the area in which the Kay segment is located. Respondent attempted to establish a higher market value by producing various warranty deeds whereby he or his affiliates had sold similar segments to other buyers for amounts approximating that agreed to by Lottie Kay. These sales do not establish value but, rather, indicate the gullibility of other buyers in making such purchases. After she fell behind in her payments, Lottie Kay tried to resell her property through Respondent in reliance on his claim at the time of his initial sales presentation that he could resell it for her in one week. When requested to do so he was unable to produce any prospective buyer. Thus, there appears to be no real market for this property, other than that generated by Respondent in his initial sales campaign. Lottie Kay did not consult an attorney or have the land surveyed or appraised prior to contracting for the purchase. Rather, she trusted Respondent who she knew to be a real estate professional. She was also aware that he was an owner of the property, but still believed she could rely on his statements that the current market value of her segment was at least $24,000 and that future profits were assured. Respondent attacks the fairness of these proceedings on the alleged misconduct of Petitioner's investigator, who encouraged Lottie Kay to come forward after she (with the help of her son) had filed a complaint with Petitioner. The investigator made statements to the Kays which indicated his belief that Respondent was engaged in fraudulent land sales, and was a menace to the public. Although the investigator's statements to the Kays were gratuitous and inconsistent with his fact finding role, there is no indication that such statements resulted in any false testimony or other unreliable evidence. Respondent notes that Lottie Kay continued to make payments on her contract with Respondent even after she had filed a complaint with Petitioner and reasons that she must have considered the property a worthwhile investment. Lottie Kay demonstrated through her testimony and recitation of her dealings with Respondent that she is gullible and imprudent in financial matters. Thus, her continued investment of funds in this property indicated lack of prudence rather than an informed belief that the property had any substantial value.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of misrepresenting property value as charged in Count II of the Administrative Complaint, in violation of Subsection 475.25(1)(b), Florida Statutes, and suspending his license as a real estate salesman for a period of three years to begin upon completion of his current license suspension period. DONE and ENTERED this 3rd day of December, 1984 in Tallahassee, Florida. R. T. CARPENTER 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 December, 1984.
Recommendation It is recommended that the Administrative Complaint as filed against James E. Annen, for purposes of revocation or suspension of his real estate brokers license no. 0001875 be dismissed. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 J. C. Adderly, Esquire Adderly, Aloia & Dudley Post Office Box 535 Cape Coral, Florida 33904
The Issue Whether or not the Respondent, Peter Van Wie Investments, Inc., and. Peter Van Wie its president, a licensed mortgage broker in the State of Florida, by placing deposited monies received from investors in savings account number 4-0011068 at the United States Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, said savings account being in the name of Peter Van Wie Investments, Inc. is 4. in violation of rule 3D-40.06(7), Florida Administrative Code (formerly Rule 3-3.06(7), Florida Administrative Code) , and thereby subjected to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing, and planning of the mortgage loans set forth in Exhibit "A" (of the Administrative Complaint) in violation of Section 494.08(5), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) , Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in Exhibit B (of the Administrative Complaint) in violation of Section 494.08(4) , Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4) Florida Administrative Code) and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, on or about March 12, 1975, received from Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development, and subsequently on April 1, 975, wrote a check to First National Resources. in the amount of $11,760.00 to pay for said promissory note and mortgage for Marie W. Neal, which on April 24, 1975, was returned by Lauderdale Beach Bank for non- sufficient funds in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida, Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to obtain for Marie W. Neal, a promissory note and mortgage or remit said funds for such promissory note and mortgage to her in violation of Section 494.05(1)(e) Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to account or deliver to Marie W. Neal after demand, said funds which came to $14,000.00 which were placed with the Respondent for purposes of investing in a promissory note and mortgage for land located in Dora Pines Development which funds had come into the hands of the Respondent which were and are not the property of the Respondent in which in law and equity the Respondent is not entitled to retain, in violation of Section 494.04(1) Florida Statutes, and thereby subjected Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to place, immediately upon receipt, funds in the amount of $14,000.00 received of Marie W. Neal into an escrow account, with an escrow agent located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida, in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjecting the Respondent to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes.
Findings Of Fact Peter Van Wie Investments, Inc. through the person of Peter Van Wie, its president, was a licensed mortgage broker in the State of Florida during the time period contemplated by the Administrative Complaint. The Respondent was issued said license on October 4, 1974. At a time when the Respondent's mortgage broker license was in effect, Peter Van Wie Investments, Inc. and/or Peter Van Wie deposited monies received from investors in a savings account number 4-0011068, at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida. This savings account was in the name of Peter Van Wie Investments, Inc. While operating as Peter Van Wie Investments, Inc., Peter Van Wie Investments, Inc. and/or Peter Van Wie paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04(04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging negotiation, selling, purchasing and planning of mortgage loans. These sales by Mr. Beck and Mr. Clarke are identified in the Exhibit "A to the Complaint and Petitioner's Exhibit "C" admitted into evidence during the hearing. Richard Clarke became a licensed mortgage broker in the State of Florida on December 19, 1973. Frederick Beck has never been licensed under Chapter 494, Florida Statutes. There was admitted into evidence in the course of the hearing, Petitioner's Composite Exhibit "B". The columns that are shown on the pages of the exhibit running horizontally represent in succession: the date, name of the investor, whether or not the investor was a Florida resident, the amount of the mortgage, the amount of commission paid, whether the note was in the file of the Respondent, whether or not the mortgage was in the file of the Respondent, whether or not the title insurance policy on real estate was in the file, the interest rate return for the investor, whether or not the arrangement was for interest only or interest and principal, and the name of the broker/developer. The facts which surrounded the transaction shown in Petitioner's Composite Exhibit "B" are as follows: An investor would be in contact with Peter Van Wie Investments, Inc. concerning the purchase of certain promissory notes and mortgage for land which were being offered by a developer/mortgagor. The investor made out a check to Peter Van Wie Investments, Inc. using the acronym PVWI, Inc. The money for purchasing the promissory note and mortgage was then held in the escrow account until Peter Van Wie Investments, Inc. received the promissory note and mortgage through an intermediary acting in behalf of the developer. The money that had been received from the investor stayed in the escrow account until the receipt of the promissory note and mortgage and then was removed in the entire amount and placed in the Peter Van Wie Investments, Inc. operating account. A percentage of the investment principal would then be deducted from the amount which had been placed in the operating account and the amount remaining after the percentage had been deducted would be forwarded to the intermediary, who would make a further dispersion of the proceeds to the developer. The percentage to be deducted from the investment principal amount was determined by prior negotiations between the intermediary, and Peter Van Wie investments, Inc. These percentage amounts deducted from the investment principal were characterized by the Respondent in the course of the hearing, as being a discount allowed by the intermediary for sales of the promissory notes and mortgages to the Respondent. This characterization by the Respondent is rejected and these percentage amounts are found to be fees or commissions charged by the Respondent, which are in excess of the maximum allowable fees or commissions on transactions, in that they are in excess of the amounts allowed under Section 494.08(4)) Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4), Florida Administrative Code). In connection with other allegations found in the Administrative Complaint, it has been shown that on March 12, 1975, the Respondent received from one Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development. Peter Van Wie, on April 18, 1975, wrote a check to First National Resources in the amount of $11,760.00 to pay for the promissory note and mortgage for Marie W. Neal. On April 24, 1975, the check that had been written to First National Reserves was returned by the Lauderdale Beach Bank, for non-sufficient funds. The Respondent's explanation of the reason for the non-sufficient funds is found in his Answer to the Administrative Complaint in paragraph 6. It is not clear from the record whether Marie W. Neal ever physically received a promissory note and mortgage; however, a promissory note and mortgage deed have been recorded in Lake County, Florida, in her favor. There was no proof that the person, Marie W. Neal, ever asked that the Respondent remit such funds she had paid for the promissory note and mortgage. Furthermore, there is no evidence to the effect that the Respondent failed to deliver to to Marie W. Neal after demand, the said $14,000.00 which came into the Respondent's hands, or which had been placed in the escrow account of the Respondent and from which the non-sufficient funds check had been written to First National Resources. By an exhibit attached to the Answer of the Respondent, it is shown that the $14,000.00 was placed in the escrow account so designated at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, on March 13, 1975.
Recommendation It is RECOMMENDED that the license of the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in Florida, be suspended for a period of one year in view of the violations which have been proven in the course of the hearing. DONE and ENTERED this 15th day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. Terry Rigsby, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Peter Van Wie, President Peter Van Wie Investments, Inc. 16 Winnebago Road Sea Ranch Lakes, Florida B. Paul Pettie 2314 E. Atlantic Boulevard Pompano Beach, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE, Petitioner, vs. Administration Proceeding Number 75-21 DOF-MB PETER VAN WIE INVESTMENTS, INC., Case No. 75-1512 and PETER VAN WIE, PRESIDENT, Respondent. /
The Issue Whether disciplinary action should be taken against the Respondents for alleged violation of Subsections 475.25(1)(a) (1977), 475.25(1)(b) (1979), 475.25(1)(c) (1977), and 475.25(1)(d) (1979), Florida Statutes, as set forth in the Administrative Complaint, dated May 1, 1980. At the commencement of the hearing, Counsel for Respondent Marie Bonello announced that his client, who was present, was ill and 78 years of age and unable to testify, and moved to continue the hearing. The continuance was denied, but the parties agreed to allow her Counsel to file a deposition subsequent to the hearing and to hold the case open until her deposition could be filed. By letter dated August 13, 1980 Counsel for Marie Bonello stated that he anticipated a restitution settlement with complaining witness Marlene Jacobs and requested further delay in closing the case. Counsel for Respondent Gloria Campione agreed to the delay by letter dated September 25, 1980. On October 8, 1980 Counsel for Petitioner requested that a recommended order be entered, and on October 31, 1980 notified the Hearing Officer that a transcript would be ordered and a proposed recommended order would be filed by Petitioner. A transcript was filed December 8, 1980. No deposition, proposed orders, or memorandum showing restitution were filed by the parties subsequent to the hearing except Counsel for Respondent Campione filed a legal memorandum and a proposed recommended order, which were considered in the rendition of this order.
Findings Of Fact Respondent Marie Bonello was registered with Petitioner as a real estate salesperson and also as President and Treasurer of Bonne Realty Corporation and was so registered during the time pertinent to this hearing in the year 1978 (Petitioner's Exhibit 23). Respondent Bonne Realty Corporation was licensed under Corporate Certificate No. 0196358-6 by the Florida Real Estate Commission to transact real estate business and was so registered during the time pertinent to this hearing. Respondent Gloria Campione is registered as a real estate salesperson and was so registered In 1978 and at all times material to this case was either employed by or was working with Respondent Bonello and the Respondent Bonne Realty Corporation. In May of 1978 one Marlene Jacobs contacted Gloria Campione, a salesperson in Archer Real Estate, Inc., in regard to the purchase of a home in Broward County, Florida. Ms. Campione showed Ms. Jacobs several homes in the area and on or about June 9, 1978 showed her some substantially completed model homes in the Deer Run subdivision. On June 11, 1978 a Deposit Receipt and Contract for Sale and Purchase was drawn for Lot 155 of the Deer Run project on which a residence was to be constructed for Ms. Jacobs and Ms. Jacobs made an initial deposit of $1,000 (Petitioner's Exhibits 3 and 9; Transcript, page 74). Archer Real Estate, Inc. and Bonne Realty Corporation were indicated as Brokers and Marlene Jacobs as the buyer. That evening Respondent Campione and another salesperson, Shannon Brisbon, who had a contract with a buyer for the same Lot Number 155, Deer Run, had a meeting with the builder/owner of the subdivision (Respondent's Exhibit 2). The builders, Frank Sepe and Lou Gonzalez, decided to accept the contract negotiated by salesperson Brisbon rather than the contract between Ms. Jacobs and Respondent Campione because Ms. Brisbon's clients would have more money to pay on the property at closing. Respondent Campione later notified Ms. Jacobs that Lot 155 was not available to her but a similar house could be built on a similar lot. Shortly thereafter Ms. Jacobs met with Respondent Campione, Ms. Bonello, and the builders and modified the original contract in ink to reflect a change in lots. Ms. Jacobs paid the balance of the deposit for a total of $5,000 and gave it to Respondent Campione. No construction was commenced. In September of 1978 Respondent Bonello contacted Ms. Jacobs and said she desperately needed money at once and wanted Ms. Jacobs to write two checks prior to the closing of the real estate transaction. Ms. Jacobs, without notifying Respondent Campione, drew two checks dated September 8, 1978, one to Respondent Marie Bonello in the amount of $3,478.03 and one to Mr. and Mrs. Wm. Maki in the amount of $5,521.97. No receipt was given for those checks. In October of 1978 Ms. Campione learned that Ms. Jacobs had drawn the two checks in the total amount of $9,000 and had given one to Respondent Bonello and one to the Makis, whom she was informed held a mortgage on a shopping center owned or partially owned by Respondent Bonello. Respondent Campione was alarmed, fearing her client Ms. Jacobs would lose the unsecured money, and forthwith procured a promissory note and a new building contract dated October 4, 1978 from Respondent Bonello reflecting the receipt of the original $5,000 deposit plus the $9,000 in the two unsecured checks. The promissory note and contract were signed by Respondent Bonello upon the insistence of Respondent Campione. The contract showed a total of $14,000 deposit to be used for construction (Petitioner's Exhibits 1, 4 and 7). Still no construction was started. Respondent Bonello did not deny the allegations in the complaint either at the hearing or by deposition. The evidence and the testimony of Ms. Jacobs and Respondent Campione show that Respondent Bonello was a party in her capacity as President and Treasurer of the broker Bonne Realty Corporation, as a principal on a promissory note drawn to secure monies deposited by the buyer in furtherance of a real estate transaction and was a witness on many documents pertaining to the proposed real estate sale. It is the finding of the Hearing Officer that Respondent Bonello participated in all transactions pertaining to the proposed sale of a lot on which a house was to have been constructed for the buyer Ms. Marlene Jacobs. Money was obtained from the buyer by Respondent Bonello and was not to be used and was not used for construction of Ms. Jacob's home as she was led to believe. It is the further finding that Respondent Bonello signed a promissory note to Marlene Jacobs to secure the monies she had obtained from the buyer but only at the request of Respondent Campione. In November, 1978, when it appeared that no house was to be built, Ms. Jacobs discovered that Respondent Bonello had not only contracted to sell her lot to other persons but had used the deposit money in the shopping center Respondent Bonello was constructing for herself (Transcript, page 25). Ms. Jacobs has demanded the $14,000 she paid to Respondents Bonello, Campione and Bonne Realty Corporation, but no money has been received and Ms. Jacobs has been forced to seek recompense through the courts (Petitioner's Exhibits 14 and 15). After Respondent Campione had first showed the property in Deer Run to her client, Ms. Jacobs, and had negotiated the contract offer between Marlene Jacobs, buyer and Archer Real Estate, Inc. aid Bonne Realty Corporation, Co- Brokers and Frank Sepe as Seller Respondent Campione moved her license and worked exclusively with Respondent Marie Bonello. Archer Real Estate, Inc. is not involved in this case. At the hearing evidence was entered indicating that Bonne Realty (corporation was in existence and licensed at the time the foregoing complaint was filed and at the time of the subject transaction. Respondent Marie Bonello was listed as the President, Treasurer and 50 percent shareholder and broker for the corporation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered finding Respondent Marie Bonello guilty of the charges alleged in the Administrative Complaint, and suspending her for a period of two (2) years; That a final order be entered suspending the registration of Bonne Realty Corporation for two (2) years and until compliance with a lawful order imposed in the final order of suspension; That a final order be entered dismissing the complaint against Respondent Gloria Campione. DONE ad ORDERED this 19th day of December, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1980. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Alan J. Werksman, Esquire Suite 404, Interstate Plaza 1499 West Palmetto Park Road Boca Raton, Florida 33432 Robert M. Arlen, Esquire 2700 North East 14th Causeway Pompano Beach, Florida 33062
Findings Of Fact Terry G. Jewell is the sole proprietor of an unincorporated business, wherein Jewell engages in business as a real estate broker-salesman. His net worth is less than $2,000,000. In DOAH Case No. 87-2192, the Division filed an Administrative Complaint dated April 20, 1987, wherein the Division essentially alleged that Jewell was co-owner and agent for Sun Country Homes of North Florida, Inc., a corporation engaged in the business of constructing homes; that Jewell, as vice- president and agent for Sun Country Homes, entered into a contract with the Koblinskis to build their house; that Sun Country Homes received approximately $74,900.00 to build the home; that Sun Country Homes did not pay certain materialmen and contractors; and that Jewell did not pay the outstanding liens. The Division sought revocation and other penalties against Jewell's license as a real estate broker-salesman, alleging that Jewell was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction. After hearing, a Recommended Order was entered by the undersigned on September 25, 1987, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that Jewell's contacts with the Koblinskis were solely as an officer, co-owner and agent for Sun Country Homes of North Florida, Inc.; that all sums paid by the Koblinskis were to Sun Country Homes and were deposited to its corporate account; that the president of Sun Country Homes mismanaged the corporate funds and did not pay some of the subcontractors on Koblinskis' home, that Jewell quit the corporation then he found out about this; that Jewell did all he could to assist the Koblinskis once he had resigned from the corporation; that the president of the corporation disappeared with the Koblinskis' money; and that Jewell did not benefit from the funds paid by the Koblinskis to Sun Country Homes of North Florida, Inc. The recommendation was based on conclusions of law that the contract was between the Koblinskis and Sun Country Homes of North Florida, Inc.; that Jewell had no intent to deceive the Koblinskis; that it is well settled law that disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker; and that Jewell did not violate Section 475.25(1)(b), Florida Statutes, as alleged. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation in the Recommended Order and dismissed the Administrative Complaint. The affidavit which initiated this action was filed on February 5, 1988, and was later supplemented by the Petition for Small Business Party's Attorney's Fees and Costs. The affidavit, which was an application for an award of fees and costs, was timely, having been filed within 60 days after the date on which Jewell became a prevailing small business party. In this case, the 60 days is calculated from the date on the Certificate of Service showing mailing of the Final Order to the parties. See Section 57.111(4)(b)2, Florida Statutes. According to the affidavit of William C. Andrews, and the statements of account attached thereto, Jewell incurred legal fees of $3,252.50 and costs of $957.21. These fees and costs are found to be reasonable since the Division has not filed a counter affidavit or response questioning their reasonableness. According to the Petition, the disciplinary action in DOAH Case No. 87- 2192 was substantially unjustified at the time it was initiated: because the Administrative Complaint was an attempted disciplinary action taken against Petitioner's real estate broker-salesman's license for conduct not connected with the licensee's business as a broker-salesman, and there was a complete absence of evidence to show any wrong doing on the part of the Petitioner.
Findings Of Fact At all times relevant hereto, respondent, Richard Kondian, was a licensed real estate salesman having been issued license number 0302230 by petitioner, Department of Professional Regulation, Division of Real Estate. The license is currently in an inactive status. His present address is 300 South Pine Island Road, Plantation, Florida. In July, 1984, James E. and Janis Shand, who lived at 4940 S. W. 16th Street, Fort Lauderdale, Florida, suffered extensive fire damage to their residence. Respondent approached the Shands, introduced himself as Dick Como, and offered to repair their home to its original condition. He also represented himself to be a contractor and that he was a principal in Apex Roofing, a local contracting firm. The Shands agreed to permit Kondian (Como) to perform the work, and they executed a contract prepared by Kondian on an "Apepco Corp." letterhead which authorized the work. A copy of the contract has been received in evidence as petitioner's exhibit 2. The document is a photostatic copy of the original, and is only partially legible. It does reflect July 24, 1984 as being the date of execution, and describes the repairs to be made as follows: To be effected to return Property to Pre- Fire Condition as per policy. (No extra charge to Home.) It also authorizes Allstate Insurance Company to pay for the repairs in accordance with the terms of the Shands' insurance policy. The contract was accepted by "D. Como." Como and Kondian were identified by the Shands as being one and the same. The owner of Apex Roofing and Insurance Repair Corporation was Michael Derhagopian, a licensed roofing contractor in Dania, Florida. Respondent told Derhagopian that he had procured a repair job on the Shands' residence and that he desired Apex to do the roofing portion of the work, and that a general contractor would perform the remainder of the project. He also advised Derhagopian that he needed to use Apex Roofing as the licensee on the project. Derhagopian agreed to do the work and pulled a permit for the roofing work. He also opened a checking account in which the insurance proceeds from Allstate were to be deposited. Both he and respondent had authorization to sign checks drawn on that account. On September 24, 1984, Allstate Enterprises Mortgage Corporation issued a check payable to Apex Roofing and Insurance and J. E. Shand in the amount of $18,150.66. The check was issued for the purpose of enclosing the house, cleaning it, and installing a new roof, trusses and windows. The check was endorsed by both the Shands and Richard Kondian who 'indicated on the endorsement that he was president of Apex. The check was then deposited into the Derhagopian Kondian joint account. Work began on the Shands' residence in September, 1984. Derhagopian completed a small flat deck in the rear of the house, and the general contractor began stripping the inside of the house and cleaning the premises. When neither was paid by Kondian they ceased work on the project. At that time Derhagopian learned that Kondian had spent the entire $18,150.66 within a week. According to Derhagopian, Kondian spent around $5,000.00 on a "nursing home" transaction, $500.00 for legal expenses, and an undisclosed amount for mortgage payments on his home. It is not known how the remainder of the funds were spent except that they were not used for their intended purpose of repairing the Shands' home. Despite demands for repayment of their monies, Kondian has never repaid the Shands. The Shands eventually had their home repaired, but still have liens on it to this date. They have pending a civil action against Kondian to recover the insurance proceeds.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, and that his license number 0302230 be REVOKED. DONE and ORDERED this 16th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904 ) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of December, 1985. COPIES FURNISHED: Mr. Richard Kondian 300 South Pine Island Road Plantation, FL 33324 Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802
The Issue Whether Respondent's License No. 0003558 as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined for violation of Section 475.25(1)(e), Florida Statutes. Petitioner served a copy of its Administrative Complaint, Explanation of Rights, and Election of Rights upon the Respondent at the last address he had registered with the Commission, i.e., 6800 W. 16th Avenue, Hialeah, Florida 33014, by registered mail on July 31, 1975. Respondent executed the "Election of Rights" form in which he requested a hearing, on August 19, 1975, and returned it to Petitioner. On December 5, 1975, Petitioner mailed a copy of Notice of Hearing to the Respondent by registered mail to the same address. It was returned by the U. S. Post Office to Petitioner with the notation "Moved, Left No Address" (Exhibit 1). Accordingly, it was considered that Petitioner had complied with applicable requirements concerning notice and, the Respondent not being present at the time of hearing, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent received his registration as a real estate salesman on June 18, 1973, and has been continuously registered with Petitioner since that date (Exhibit 2). An Information filed by the State Attorney of the Eleventh Judicial Circuit of Florida, Number 73-3060, charged Respondent with nine counts of violating Section 832.05(3), Florida Statutes, by nine worthless checks in the amount of $50.00 each which were unlawfully drawn, made, uttered, issued or delivered to Winn Dixie Stores, Inc., during the period December 27, 1972 to January 8, 1973. A similar Information, Number 73-2663, was filed with respect to four checks to the Grand Union Company during the period October 18, 1972 through October 24, 1972 in the same amounts (Exhibits 3, 5). On September 13, 1973, Respondent pleaded guilty to the charges filed against him in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and an Order Withholding Adjudication was issued in Case No. 73-3060, finding the Respondent guilty based upon the entry of a guilty plea to the charge of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $50.00 (nine counts) and withholding adjudication of guilt. On the same date, the same court issued another Order Withholding Adjudication of guilt in Case No. 73-2663 for the four fifty dollar checks involved therein (ExhibitS 4, 6).
Recommendation That the registration of Leonard H. Balkan as a real estate salesman be suspended for a period of two years. DONE and ENTERED this 3rd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Leonard H. Balkan Louis B. Guttmann, III, Esquire 6800 West 16th Avenue 2699 Lee Road Hialeah, Florida 33014 Winter Park, Florida
Findings Of Fact The Respondent A. G. Ennis Realty, Inc. is a corporate real estate broker having been issued license number 0133016. The Respondent Thomas E. Ennis is the licensed real estate broker of record for A. G. Ennis Realty, Inc., and he holds broker's license number 0025105. The Respondent Marshall J. Hungerford is a licensed real estate salesman who has been issued license number 0042181. The Respondent Mildred B. Hardin is a licensed real estate salesman holding license number 0130139. In February, 1980, the Respondent Mildred Hardin commenced negotiations with Henry Roehr for the purchase of a lot on which he wished to build a condominium. During these negotiations, the Respondent Marshall Hungerford had deposits from ten parties for units in a condominium to be constructed. These parties wanted to live together, but they did not want to go into the particular location where the condominium was to be built because it was across the street from a public boat ramp. Negotiations on this first lot began to lag, because the owners were in Europe. The Respondent Mildred Hardin suggested that Henry Roehr purchase another lot for his proposed condominium. By letter dated March 18, 1980, Mildred Hardin forwarded a proposed contract for the purchase of Lot 35, Block 357, Unit II Replat, Marco Beach Subdivision. In this letter, the Respondent Mildred Hardin reminded Henry Roehr to keep her informed of what was happening so that Marshall Hungerford could tell his prospective buyers something. The terms of the contract for the purchase of Lot 35, generally, called for Henry Roehr to deposit $38,000 as earnest money against a selling price of $360,000. Mr. Roehr made the required deposit by check to the Respondent A.G. Ennis Realty, Inc., to be held in escrow. After Henry Roehr received assurances from the Respondent Mildred Hardin that the ten persons who had given deposit checks to Marshall Hungerford would purchase condominium units on Lot 35, Henry Roehr by letter dated April 7, 1980, authorized the Respondent Mildred Hardin to release to the seller the signed contract and check for the purchase of Lot 35. In this letter he stated that the only reason he was purchasing the lot was because of the representations that had been made to him that Marshall Hungerford had ten firm purchasers for condominium units. Before this transaction closed, the Respondent Marshall Hungerford accompanied Henry Roehr to two banking institutions for the purpose of obtaining a construction loan for the condominium units. During these visits, the Respondent Marshall Hungerford represented to the banking institutions that he had ten firm purchasers for units in the proposed condominium. The transaction closed on July 13, 1980. When Henry Roehr began to request more information about the prospective buyers of condominium units, the Respondent Marshall J. Hungerford, by letter dated July 29, 1980, forwarded to Henry Roehr the names and addresses of ten individuals who were represented to "have deposited checks with us and have expressed a desire to purchase a condominium, as proposed for the above reference project". In this letter he further stated, "its my personal opinion knowing all of these people that they are certified buyers and are interested and capable of entering into a purchase contract". When the Respondents presented no contracts for the purchase of condominium units from any of the people who were represented to be buyers, Henry Roehr suspected that he had been deceived, and tried to sell some of the condominium units himself. However, when the combined efforts of Henry Roehr and the Respondents failed to pre-sell enough units to warrant construction of a condominium, the plan to build was abandoned. The representations made by the Respondents, Marshall Hungerford and Mildred Hardin, that they had deposits from ten buyers for condominiums were false. These representations were made while they were salesmen employed by the Respondents, A.G. Ennis Realty, Inc., and the broker for A.G. Ennis Realty, Inc., Thomas Ennis. Thomas Ennis was aware of the transaction and participated in it as a broker, and collected a commission on it. Henry Roehr purchased Lot 35 in reliance upon these false representations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, Thomas E. Ennis, Marshall J. Hungerford, Mildred B. Hardin, and A.G. Ennis Realty, Inc., be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of May, 1983, in Tallahassee, Florida. William B. Thomas 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 6th day of May, 1983. COPIES FURNISHED: Fred Langford, Esquire Post Office Box 1900 Orlando, Florida 32802 Thomas E. Ennis A.G. Ennis Realty, Inc. 821 South Barfield Drive Marco Island, Florida 33937 Marshall J. Hungerford Post Office Box 432 Marco Island, Florida 33937 Mildred B. Hardin Post Office Box 121 Georgetown, Florida 32039 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On October 3, 1975, Respondent filed an application with Petitioner for registration as a real estate broker (Stipulation, Petitioner's Exhibit 2). That said application contained therein Question 8 which is set forth in paragraph 2 of the Amended Complaint and to which Respondent answered "No." (Stipulation, Petitioner's Exhibit 2.) That thereafter the application was approved and the Respondent subsequently received his registration as a real estate broker and has been continuously registered the Petitioner as a broker since December 22, 1975 (Stipulation.) That at the time of the execution of the application, as aforesaid, Respondent'S answer to Question 8 was incorrect in that he failed to reveal, disclose and fully explain a Complaint filed against him on August 6, 1973, in the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, by one Kenneth Beard, an individual, which complaint alleges false representations on the part of the Respondent in a business transaction. A judgment of the aforesaid Circuit Court in the above-mentioned action was in the process of appeal at the time Respondent filed his application for registration as a real estate broker (stipulation.) Respondent testified at the hearing substantially as follows: After the civil action had been filed against him, he sought the advice of counsel who informed him that the complaint therein was defective as a matter of law. He was therefore of the opinion that there was not a viable suit against him at the time he filled out his application, and thus was not attempting to mislead or hide any facts from the Petitioner. He also felt that, since he had not, in fact, committed any fraud or misrepresented any matters to the purchaser of the business in question, a negative answer on the question in the application was justified. However, upon reflection at the hearing, he conceded that, probably he had misread the question and misconstrued its meaning. Respondent's good reputation for truth and veracity in the community and in his business dealings was attested to by past officials of the Clearwater, Largo, Dunedin Board of Realtors (Testimony of Merhige, Blanton).
Recommendation That the Complaint against Respondent, William D. Folz, be dismissed. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard B. Moritz, Esquire 801 West Bay Drive Suite 704 Largo, Florida 33540
