The Issue Whether Respondent, based on conduct which will be set forth hereinafter in detail, is guilty of fraud, misrepresentation, false promises, and dishonest dealing, as more specifically alleged in the Administrative Complaint filed herein on September 30, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Based on admissions, Gary Steinman, Respondent herein, is a registered real estate salesman and holds license number 0084567. During times material to the allegations alleged in the Administrative Complaint filed herein, Respondent was a registered real estate broker/salesman. During the period from November, 1974, until February of 1977, Respondent was employed by Suncoast Highland Corporation (Suncoast), an owner/developer. From February 25, 1977, and extending through June of 1978, Respondent was employed by Suncoast Highland Realty Corporation, a licensed real estate corporation. For purposes herein, the two (2) corporations are the same. (Tr. 150) 2/ From November of 1974 through June of 1978, in his efforts to induce prospective purchasers to buy lots in a Suncoast development known as Shadow Run, Respondent, in his capacity as a salesman for Suncoast, made the following verbal representations pertaining to the parcels in Shadow Run: Underground utility connections would be used exclusively in the sub- division; That a recreation area would be constructed, including tennis courts and a concrete boat ramp; and That a central water system would be installed by the developer. In November of 1974, Suncoast opened and offered for sale individual residential lots in Shadow Run. Respondent, during his employment with Suncoast is not now nor has he ever served as an officer or director of that corporation. Nor did Respondent formulate or participate in the formulation of policy or development decisions for the corporation. (Testimony of Respondent and C. Thomas Peterson, the President of Suncoast since 1964.) To summarize, Respondent is charged with making certain representations to purchasers or prospective purchasers of lots in Shadow Run Subdivision which allegedly Respondent knew or should have known were false. As stated, one such representation was that underground utilities (electric and telephone) would be installed for all lots in Shadow Run. The testimony and exhibits produced in evidence reveal and Respondent admits, without dispute, that the developer, Suncoast, did make such promises and representations in its initial public offering statement dated September 16, 1974. That public offering statement was in effect when Shadow Run Subdivision opened in November of 1974. The evidence reveals, and Respondent admits that he first learned, on January 15, 1975, that the developer decided not to install underground utilities and therefore would have conventional overhead utilities. C. Thomas Peterson verified that the decision to change utilities was not communicated to Respondent until January 15, 1975. (Tr. 119-120) This fact was also verified by another Suncoast salesman, William Mayer. (Tr. 139) Sue Reed and her husband purchased a lot in Shadow Run during December of 1974, and Respondent was the salesman. Respondent admits and the evidence reveals that Respondent represented to the Reeds, prior to the sale, that underground utilities would be installed in the development. Alfred Vetrano also purchased a lot in Shadow Run and again Respondent was the salesman. Mr. Vetrano first viewed Shadow Run during early 1976. At that tine, the decision had been made by Suncoast not to install underground electric utilities. In fact, overhead utility lines were completely installed in Shadow Run Subdivision at that time. Mr. Vetrano, a trained, licensed plumber, admits that he saw the overhead lines and power poles prior to the time that he purchased his lot sometime during 1976. (Tr. pp. 51-52) Chester C. Fennell also purchased a lot in Shadow Run during approximately March of 1976. (Tr. 92) Respondent sold Mr. Fennell his lot, although from Mr. Fennell's own testimony, he was also receiving certain information about the property in Shadow Run from another salesman, whose name he (Fennell) could not recall. When Mr. Fennell purchased his lot, the decision had been made by Suncoast not to install underground utilities. In fact, Mr. Fennell admits to seeing the overhead electric utilities. James Dovin also purchased a lot in Shadow Run on April 25, 1975. Respondent and another salesman, whose name Mr. Dovin could not recall, sold Mr. Dovin his lot. (Tr. pp. 107-108) According to Dovin, Respondent represented to him during his sales presentation, on or about April 25, 1975, that all underground utilities would be utilized in the development and that a park or recreation facility, including a tennis court and a boat dock and ramp would be built on the property. Mr. Dovin could not recall precisely whether Respondent or another unnamed salesman made representations to him during April of 1975. (Tr. 110- 111) Also, Mr. Dovin could not recall from which of the two (2) offices that were selling lots in Shadow Run, that he obtained the information concerning the subdivision. Nor, in view of the seven (7) year hiatus between the time he purchased the lot and the subject hearing, could Mr. Dovin recall with any specificity, exactly what took place and who made what representations. (Tr. pp. 111-114) Mr. Dovin, like other purchasers who had been told that a central water system would be utilized in the Shadow Run Subdivision, was offered by Suncoast a $1,000.00 credit toward the purchase price for the installation of a well. Concerning the representations allegedly attributed to Respondent respecting the construction of the recreation area with a boat ramp and the tennis courts, Respondent admits to having made these representations. Suncoast's president Peterson indicated his intention to install a boat ramp and tennis courts at the subdivision; however, the actual construction date for these facilities has been postponed on several occasions. In this regard, the evidence reveals that Respondent relayed these representations to prospective purchasers as they were told to him by officials of Suncoast. William Mayer, another Suncoast salesman who was involved in the day-to-day sales presentations at Shadow Run, corroborates Respondent's testimony on the above points. From the outset, it also appears, and the evidence reflects, that the developer in fact intended to construct a central water system for the subdivision. To accomplish their purpose, Suncoast purchased the pipe for transmission of the water to the various lots but later abandoned its efforts to construct a central water system based on cost prospectives and other factors. As a result, Suncoast resold the pipe it had bought to complete the central water system at a loss to the developer. (Testimony of president Peterson) Finally, as noted above, Suncoast gave a $1,000.00 credit to all property owners who had been told that a central water system would be constructed, as a means to help defray the costs of the homeowners in getting a well drilled.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein against Respondent, Gary Steinman, be DISMISSED. RECOMMENDED this 30th day of June, 1992, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1982.
Findings Of Fact Lamar submitted a permit application for a location 120 feet west of Hickory Avenue, in Bay County, Florida, on the south side of U.S. 98, on November 25, 1985, and resubmitted that application on December 16, 1985. On January 8, 1986, DOT denied the application solely because of spacing conflicts with permit Nos. AD089-10 and AD090-10 held by Headrick. That denial was made in a Memorandum of Returned Application. The Memorandum of Returned Application contained the following statement: PLEASE BE ADVISED THAT IF YOU BELIEVE YOUR APPLICATION HAS BEEN INAPPROPRIATELY DENIED, YOU HAVE THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING UNDER SECTION 120.57, FLORIDA STATUTES, WITHIN THIRTY (30) DAYS OF THE DATE OF THIS NOTICE. THE SUBMITTED HEARING REQUEST SHALL GIVE A BRIEF STATEMENT SETTING FORTH THE REASON(S) FOR REVIEW. SUCH HEARING REQUEST MUST BE FURNISHED TO: THE CLERK OF AGENCY PROCEEDINGS FLORIDA DEPARTMENT OF TRANSPORTATION, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA 32301 Lamar requested an administrative hearing by letter dated March 13, 1986. On March 12, 1986, Headrick applied for a permit for a sign to be located on the south side of U.S. 98, 285 east of Hickory Avenue, in Bay County, Florida. By letter dated March 31, 1986, the Headrick application was returned unapproved because of a pending administrative hearing requested by Lamar concerning the location of permits AD089-10 and AD090-10. This letter did not advise Headrick of its rights to an administrative hearing. Headrick did not request a hearing for these applications. Lamar applied for a permit for a sign location on the south side of U.S. 98, 120 feet west of Hickory Avenue, in Bay County, Florida, again on March 13, 1986. A Memorandum of Returned Application, dated April 3, 1986, was sent to Lamar, denying the application because of a spacing conflict with Permits AD089-10 and AD090-10 located 100 feet westerly of Hickory Avenue on the eastbound (south) side of U.S. 98. This Memorandum contained the same language as that set forth above and, by letter dated April 18, 1986, Lamar requested an administrative hearing. This request resulted in Case No. 86-1707T herein. Another case, with DOT as Petitioner, Headrick as Respondent, and Lamar as Intervenor, Case No. 85-4165T, resulted in a Final Order dated September 2, 1986, revoking Permits AD089-10 and AD090-10. The Final Order was based upon findings that Headrick was advised on August 9, 1985, by the property owner, that the property was being sold and that Headrick had thirty (30) days to remove its sign. Further, by letter dated October 17, 1985, the property owner advised DOT that Headrick no longer had a valid lease for the signs and the signs had been removed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the December 16, 1985, application filed by Lamar Advertising company for a location on the south side of U.S 98, 120 feet west of Hickory Avenue, in Bay County, Florida, be GRANTED. DONE AND ENTERED this 5th day of May, 1987, in Tallahassee Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1043T The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Lamar Advertising Company Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(2); 6(1); 7(3); 8(3); 9(1 and 3); and 10(4). Proposed finding of fact 11 is rejected as unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Headricks Outdoor Advertising 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(2); 3(2); 4(1); 5(1); and 6(4). COPIES FURNISHED: Barbara W. Palmer, Esquire Beggs & Lane 700 Blount Building Post Office Box 12950 Pensacola, Florida 32576 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 William G. Warner, Esquire 565 Harrison Avenue Post Office Drawer 335 Panama City, Florida 32402 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwanne Street Tallahassee, Florida 32301 =================================================================
Recommendation Based on the foregoing facts and conclusions of law, I recommend that the information filed herein be dismissed in it's entirety. Done and Entered this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Walsh and Associates By Gerald M. Walsh, Esquire 404 Courthouse Square Building 200 Southeast Sixth Street Ft. Lauderdale, Florida 33301
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Elliott H. Nachwalter was a licensed real estate salesman in the State of Florida, having been issued license number 0451805 by Petitioner, Florida Real Estate Commission. The last license issued to Mr. Nachwalter was as a salesman, c/o Expo Realty, Inc., 9445 Bird Road, #101, Miami, Florida 33165. License number 0451805 remains in involuntary inactive status. A person by the name of Elliott Nachwalter served as an officer of a Florida corporation, Liberty Metals Corporation, which was involuntarily dissolved on November 16, 1987. At the hearing, Petitioner asserted that the Elliott Nachwalter of Liberty Metals Corporation was the same Elliott Nachwalter who is the Respondent is the instant case. Petitioner further asserted that in the summer of 1988, through Liberty Metals Corporation, Respondent agreed to sell to Mrs. J. D. Morrison platinum and solicited from Mrs. J. D. Morrison checks totaling $63,000 in payment for the platinum, that the platinum was never delivered to Mrs. Morrison and that Respondent induced Mrs. Morrison into returning a check in the amount of $168,202 which was offered to Mrs. Morrison by Respondent when her account with Liberty Metals was closed. Neither Mrs. Morrison nor Respondent were present or testified at the hearing. Instead, Mrs. Morrison's assertions were delivered through the testimony of her adult son, J. Davis Morrison, Jr. Mr. Morrison holds the durable family power of attorney over the property and assets both real and personal of his father, Kirk Morrison. It was under this authority that Mr. Morrison sought to propose the testimony about his mother's dealings with Liberty Mutual. Mr. Morrison stated that his mother was aged and incompetent to testify; however, no competent evidence of her condition was offered. Further, the relationship between the power of attorney which Mr. Morrison held over his father's property and assets, and any authority over his mother's property and assets which may have been involved with Liberty Mutual was not demonstrated. Mr. Morrison overheard his mother talking on the telephone to someone she identified as "Elliot." He was also aware, through his mother, that she was engaging in dealings for platinum with a Carlos Mas who she told him was in business with Mr. Nachwalter. Mr. Mas has since died. When Mr. Morrison discovered checks of his mother made out to Liberty Metals during the summer of 1988 and saw no confirmations for the purchases, he insisted that his mother close her account with Liberty Metals. On August 23, 1988, a check was delivered to Mrs. Morrison in the amount of $168,202 drawn on Pan American Bank, N.A., and made payable to Mrs. Kirk Morrison. According to Mr. Morrison, the check was returned to the sender by his mother at the insistence of either Mr. Nachwalter or Mr. Mas. Mr. Morrison appeared to be a truly concerned son with, no doubt, the interest of his mother in mind. However, without direct testimony and other forms of competent evidence, the proof has failed to demonstrate that Respondent was involved in the proposed scheme or committed any of the acts alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Real Estate Commission issue a Final Order dismissing the administrative complaint filed against Elliott Nachwalter, licensed real estate salesman holding license number 0451805. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March, 1990. JANE C. HAYMAN 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, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4524 The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact. PETITIONER Adopted in paragraph 1. Adopted in paragraph 1. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Adopted, in part, in paragraph 6, rejected, in part, in part, as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. RESPONDENT Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 6. Rejected as hearsay. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 John M. McDaniel, Esquire 777 Brickell Avenue, PH-2 Miami, Florida 33131 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
The Issue The issues are whether Respondent violated Section 475.25(1)(b), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty of prosecuting administrative complaints pursuant to Chapters 455 and 475, Florida Statutes. Respondent is and was, at all times material hereto, a licensed Florida real estate salesperson. He holds license number 0487661. Respondent was working as a real estate salesperson in association with Global Realty of Volusia, Inc. (Global Realty) in Deltona, Florida, when he received his current license. In 1993, Paul Costello owned a residence (hereinafter "the property") in Deltona, Florida. Mr. Costello lived in Miami, Florida. He rented the property to tenants who informed him that cracks were developing in the property's driveway. Additionally, the house was settling and cracking. Mr. Costello subsequently made a claim for the property's reported distress on his homeowner's insurance policy with Republic Insurance Company. The insurance company retained a geotechnical engineering firm to determine the cause of the reported distress. The engineering firm made a site visit to the property on August 22, 1993. A visual inspection revealed cracks up to one and one-half inches wide in the exterior walls of the garage. The engineering firm completed its investigation in September 1993 and concluded that the property was subject to sinkhole conditions/activity. Based on the recommendations of the engineering firm, the insurance company hired a grouting contractor. Deep cement grout injections and shallow grouting (mudjacking) were performed in an attempt to stabilize the loose soil conditions on the property. Steel piles were used to raise and support the structure's footing. The stabilization effort took approximately two months to complete. In 1995, Shawna Lee Christenson and Janice Beery worked as licensed real estate salespersons for Choice Properties, Inc., (Choice Properties) in Deltona, Florida. Jean Gillian, a licensed real estate broker and owner of Choice Properties, gave Ms. Christenson and Ms. Beery their first employment as real estate sales associates. Because they were new to the real estate profession, Ms. Gillian directed Ms. Christenson and Ms. Beery to work as partners. Respondent was also working at Choice Properties when Ms. Gillian hired Ms. Christenson and Ms. Beery. He worked for Choice Properties for several weeks before returning to Global Realty as a sales associate. Sometime prior to October 22, 1995, Ms. Christenson received a call from a woman in Orlando. The woman, a friend of Mr. Costello's, requested Ms. Christenson to perform a market analysis on the property. Ms. Christenson and Ms. Beery performed the market analysis on the property. Subsequently, they received permission from Mr. Costello to list the property for sale as a multiple listing. Ms. Christenson and Ms. Beery signed a listing agreement with Mr. Costello. About that time, or soon thereafter, Ms. Christenson had a telephone conversation with Mr. Costello. During the conversation, Mr. Costello informed Ms. Christenson about possible prior sinkhole activity on the property. Ms. Christenson and Ms. Beery discussed the problem with Ms. Gillian. Everyone at Choice Properties thought the situation was humorous because the property was the first listing for Ms. Christenson and Ms. Beery. Later, Mr. Costello sent Ms. Christenson a document with the name of the geotechnical engineering firm. Ms. Christenson then contacted Mike Wilson, a friend who worked in soils engineering. Mr. Wilson contacted the engineering firm and requested that a copy of its settlement claim evaluation report be sent to Ms. Christenson. Ms. Christenson placed a copy of the engineering firm's report in the property's file at Choice Properties. She disclosed the possible sinkhole activity to everyone who called about the property. She advised all callers that the report was in the file. After learning about the possible sinkhole activity, real estate agents would not show the property to their customers. Sometime in October 1995, Barbara Redding, a single disabled female, contacted Respondent after seeing an advertisement in the newspaper. Respondent was aware that Ms. Redding was a recipient of Social Security benefits. On or prior to October 22, 1995, Respondent telephoned Ms. Christenson to inquire about the property. He told Ms. Christenson that he had a client (Ms. Redding) who was a Social Security recipient and really needed a home. Respondent was interested in the property because it was within Ms. Redding's price range and had an assumable mortgage. Ms. Christenson disclosed the possible sinkhole activity to Respondent. She told him that the engineering firm's report was in the file. Respondent declined Ms. Christenson's offer to fax the report to him. Ms. Christenson was surprised to learn that Respondent intended to show the property to Ms. Redding despite the disclosure about the sinkhole activity. Sometime after the initial phone call, Ms. Beery was outside the office of Choice Properties smoking a cigarette. Ms. Christenson was with Ms. Beery when Respondent arrived. As he walked into the office, Respondent joked about the fact that Ms. Christenson's and Ms. Beery's first listing was on a sinkhole. Respondent showed Ms. Redding four or five houses, including the subject property. After seeing the property, Ms. Redding contacted Respondent to make an offer to purchase it. Respondent prepared a contract for sale and purchase, which Ms. Redding signed on October 22, 1995. Respondent was acting as buyer's agent for Ms. Redding. The contract states that a deposit in the amount of $100 was held in escrow by "Associated Land Title upon acceptance by October 30, 1995." Respondent included the following language in the contract as an addendum: Seller agrees to remove branch from roof and repair roof and soffit where branch is presently lodged. This offer is contingent on Buyer receiving settlement from Social Security that has already been awarded. Seller agrees to close at Associated Land Title contingent on all payments being up to date. Regardless of principal balance, cash to mortgage [sic] will be $6,000 (six thousand dollars.) Respondent hand-delivered the contract for sale and purchase to Choice Properties. Mr. Costello, through Ms. Christenson and Ms. Beery, made a counter offer for a higher purchase price and a $500 deposit. The counter offer eliminated language in the contract addendum related to removal of the branch and repair of the roof. It also deleted the language related to $6,000 cash payment. The offer included an additional addendum to the contract that stated as follows: Buyer acknowledges that there has been disclosure regarding the driveway and previous activity affecting it. Seller reserves the right to leave property on market to entertain offers. Buyer acknowledges property is being sold "AS IS." Ms. Christenson and Ms. Berry asked Ms. Gillian to review the language in the contract addendum before they returned the contract to Respondent. After Ms. Gillian approved the statement, Ms. Christenson and Ms. Berry returned the contract to Respondent. Ms. Redding only had $100 in cash for a deposit. Respondent offered to loan her the other $400. Ms. Redding accepted Respondent's offer and signed a promissory note to that effect. Ms. Redding subsequently paid Respondent the $400 that she owed him. When Ms. Redding reviewed the counter offer, she asked Respondent about the additional language in the contract addendum stating that the buyer acknowledged disclosure about the driveway and previous activity affecting it. Respondent told Ms. Redding that the driveway had been cracked and that a new driveway had been put in. Respondent never discussed possible sinkhole activity with Ms. Redding. The contract closed in November 1995. After painting the house, Ms. Redding moved in on January 20, 1996. Sometime in March or April of 1996, a friend of Ms. Redding's asked her if she knew she had purchased a home on a sinkhole. Ms. Redding then discovered that all of her neighbors were aware of the problem. Ms. Redding contacted Richard Meyer, a professional geologist who works for the Volusia County Environmental Management Department. Mr. Meyer inspected the property in August 1996 and on three subsequent occasions. In the meantime, Ms. Redding contacted Ms. Christenson and Ms. Beery. They told Ms. Redding that they had advised Respondent about the sinkhole activity prior to Ms. Redding's purchase of the property. Ms. Gillian showed Ms. Redding a copy of the engineering report from the property's file at Choice Properties. Ms. Gillian gave Ms. Redding a copy of the report. Ms. Redding showed the engineering report to Mr. Meyer on one of his visits. Mr. Meyer determined that the property definitely was subject to sinkhole activity. He concluded that the property was a "slow sinking hole." Ms. Redding did not contact Respondent after she learned about the sinkhole on the property. At that point in time, Ms. Redding felt intimidated by Respondent. One day Ms. Redding heard a loud crunch as she was going into her garage. She asked the fire department to inspect the property to determine whether it was safe as a dwelling. The fire department determined that the property was not safe for habitation. Ms. Redding moved out of the house and had it demolished in October 1996 after the fire department condemned it. Ms. Redding's insurance company "totaled" the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license. DONE AND ENTERED this 28th day of June, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1999.
Findings Of Fact The Respondent issued an Invitation to Bid by which sought to lease approximately 21,000 net useable square feet of office space to be located in Tampa, Florida. This Invitation to Bid is referred to as Lease Number 590:1946. Three bids were received in response to the Invitation to Bid, and they were opened on July 29, 1988. Bids were received from the Petitioner, Structures, Inc., and a third bidder that has not filed a protest, and is therefore not relevant to this proceeding. All bidders were initially determined to be responsive to the Invitation to Bid. Petitioner and Structures, Inc., submitted bids involving the same office space and real property. Petitioners' bid for this space was lower that the bid filed by Structures, Inc., when compared on a present value rental cost analysis. Despite Petitioners' lower bid, Respondent awarded this lease to Structures, Inc., due to the receipt of a letter dated August 2, 1988, from Intervenor, the owner of the subject property, stating that, "Mr. Hartley (Petitioner) has no right to propose this property to the Department as Mr. Hartley and I have no agreements with respect to my leasing the property to him." On the basis of this letter, the Respondent concluded that Petitioners had no legal interest in the subject property and therefore did not have the requisite control over the property to submit this bid. The Petitioners' bid was determined to be nonresponsive. Petitioners did not present competent substantial evidence to discredit or refute Intervenor's contention that they lacked any legal interest in this property. It is undisputed that Intervenor owns the property, and Intervenor was present at the hearing to confirm that the letter of August 2, 1988, was, in fact, his letter. The Petitioner, James C. Hartley, was not present at the hearing. The only evidence presented by Petitioners of any alleged interest in this property is a copy of a telecopy letter dated June 29, 1988, filed with its bid, which purports to express the intention of Intervenor and Petitioner Hartley to enter into a lease for certain property described on an Exhibit A, which was not presented in evidence. Thus, there is no indication on the face of this document that the telecopy letter relates to the subject property. However, even if the letter does relate to the property owned by Intervenor, the agreement specifically states that Intervenor's obligation to enter into a lease with Petitioner is expressly conditioned upon Intervenor's approval, In his sole discretion, of any sublease with the Respondent. If for any reason the Intervenor disapproved of the Petitioners' bid and lease with the Respondent, according to this agreement, he could simply refuse to enter into any lease of the subject property with Petitioners, and thus, Petitioners would have no interest or control over the property, and could not then sublease it to the Respondent. Finally, there is no recital of consideration in the purported agreement set forth in the telecopy letter. Based upon a complete review of the evidence presented, it is found that Petitioners did not have a valid, legal interest in the subject property which would be sufficient to allow them to file this bid and propose this lease to the Respondent. As such, Petitioners' bid was unresponsive.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioners' protest Lease Number 590:1946. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4645BID Rulings on Petitioners' and Intervenor's Proposed Findings of Fact: Petitioners and Intervenor did not timely file a Proposed Recommended Order containing proposed findings of fact. Rulings on the Respondent' Proposed Finding of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. 3-5. Rejected as irrelevant and unnecessary. 6-8. Adopted in Finding of Fact 4. 9. Rejected in Finding of Fact 2, and as irrelevant. COPIES FURNISHED: Joseph D. McFarland, Esquire 520 Second Avenue, South St. Petersburg, Florida 33701 Robert L. Rocke, Esquire Post Office Box 3433 Tampa, Florida 33601 Jack Farley, Esquire W. T. Edwards facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 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 16th day of April.
The Issue The Florida Real Estate Commission, herein sometimes called the Plaintiff or the Commission, seeks to revoke or suspend the license of the Defendant, Alan Leavitt, a registered broker, based on allegations that he violated Subsections 475.25(1)(a) and (b), Florida Statutes, as alleged in its administrative complaint filed on December 9, 1976. As is set forth more particularly in its two count administrative complaint, the Commission alleges that the Defendant, while employed as an active broker for Special Realty Corp., acted in his own behalf by advertising and selling several unimproved lots located in Walton County, Florida. It is further alleged that the Defendant made statements in an effort to sell said lots indicating that the lot sizes were 50 feet wide and 150 feet deep, whereas in actuality the lots were only 25 feet wide and 105 feet deep. The complaint alleges that the purchaser consummated the sale for the above referred lots based on the representations made respecting the lot sizes and upon subsequent examination found that the lot sizes were substantially less whereupon the purchaser demanded a refund from Defendant, to no avail. Based thereon, it is alleged that the Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, etc., in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. In count two it is alleged that the Defendant, while registered as an active real estate broker, permitted Isaac Shelomith and Barry Shelomith, registered real estate salesmen, to unlawfully operate as real estate salesmen out of his offices and encouraged them to engage in the sale of lots in Walton County, Florida by means of unscrupulous and unlawful methods involving fraud, and other breaches of trust in violation of Subsection 475.25(1)(a), and (b), Florida Statutes. For all of the foregoing reasons, the complaint alleges that the Defendant is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor, the pleadings and the admissions contained therein including the arguments of counsel, I make the following: The Defendant, who holds license number 0051095, was a registered real estate broker during times material to the allegations contained in the administrative complaint filed herein. During early October, 1975, Defendant placed in the classified section of the Miami Southside Newspaper, an ad relative to real property located in Walton County, near DeFuniak Springs. On October 14, 1975, Mr. Lionel G. Rush, an unemployed marketing executive, responded to the aforesaid ad to inquire about the advertised lots. He later purchased four lots from the Defendant for the sum of $1,500. The four lots were described in a warranty deed dated October 17, 1975, from Defendant to Lionel G. Rush and Susie M. Rush, his wife. (See Commission's Exhibit #4). Mr. Rush stated that the Defendant advised him that each individual lot was 50 feet in width and 150 feet in depth and it was based on these representations that he purchased the four lots described in the above referenced warranty deed. Mr. Rush, after purchasing the lots, investigated the lot sizes, approximately three weeks later by calling the county clerk for Walton County who advised that the lot sizes were approximately 25 by 105 feet each. He thereafter contacted the Defendant who checked to determine the accuracy of the lot sizes and was able to determine that the lot sizes were 25 by 105 feet as Mr. Rush had informed. Mr. Rush indicated that but for the inaccurate lot sizes, he was pleased with the property purchased from the Defendant. Mr. Rush testified that he advised the Defendant that there were in his opinion, several options available to satisfy or otherwise cure his purchase problems. He first suggested that the Defendant refund a portion of his purchase money to reflect the actual lot sizes conveyed or alternatively Defendant deed over to him another four lots to compensate for the alleged inadequacy of the lot sizes. Alan Leavitt, the Defendant herein, acknowledged that he sold four lots to Mr. Lionel Rush and his wife in Country Club Heights in Ft. Walton Beach. He denied that the lot sizes were recorded by him or upon his direction as the description is now reflected on the warranty deed entered herein. (See Exhibit 4). Defendant testified that after selling the lots to the Rushes, he received a phone call approximately three weeks later from Mr. Rush complaining about the lot sizes. Mr. Rush expressed his desire to get a refund of the purchase money paid or to seek some other restitution. Defendant checked into the matter and was able to determine that the lot sizes were in fact 105 feet by 100 feet. When Defendant was unable to resolve the matter with the Rushes, he offered to return their money back and in fact purchased a money order for the full amount of the purchase price and agreed to absorb all incidental costs connected with the purchase of the property. He stated that the refund offer was made after Mr. Rush tried to bargain over price and in his opinion was trying to get the lots for what was in his opinion, a "ridiculously low price." He testified that when he discerned this, he had no further dealings with Mr. Rush and was only interested in refunding the purchase money price once the Rushes executed a proper deed returning the property to him. He (Defendant) denied ever misrepresenting the lot sizes. Isaac Shelomith, a registered real estate salesman during times material, was called and denied having any employment relationship with the Defendant in any manner during times material to the allegations contained in the administrative complaint filed herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 1st day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David B. Javits, Esquire 3628 Northeast Second Avenue Miami, Florida 33137 Alan Leavitt 7100 Fairway Drive Miami Lakes, Florida 33014 Bruce I Kamelhair, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
