The Issue The issue in this case is whether Respondent is guilty of operating as a broker or salesperson without holding a valid and current license as a broker or salesperson, in violation of Sections 475.25(1)(a) and 475.25(1)(e), Florida Statutes.
Findings Of Fact Respondent was licensed as a real estate salesperson in the State of Florida and held license number 0443677. She placed her license with Active One Realty, Inc. in 1990 for two months in the spring and, after a brief interval during which her license was not with Active One, one month in the early summer. Each time, Respondent terminated her license with Active One. On September 4, 1990, Respondent again placed her license with Active One. Respondent worked as a 100% commission agent. She retained 100% of the commission earned by her broker on sales or purchases on which she participated. In return, Respondent paid Active One $150 monthly and $100 per closed transaction. In late October, 1990, Respondent informed her broker that she had purchased a daycare center, which was taking a lot of her time. Accordingly, Respondent wanted again to terminate her license with Active One. The broker and Respondent agreed that her last day of work would be November 5, 1990. The broker offered to return a $450 deposit to Respondent, but she asked that the broker retain it until she returned to Active One, as she intended to do. Respondent terminated her license with Active One effective November 6, 1990. Since that date, Respondent's license has continuously been on current inactive status, meaning that she may not engage in real estate activities for which a license is required. By letter to Respondent dated November 8, 1990, Active One confirmed the effective date of the termination. The letter contains a copy of a completed form informing Petitioner of the termination of the license. On November 26, 1990, Respondent prepared a standard contract for sale and purchase in connection with a proposed purchase of real property by her husband. Respondent completed the portions of the contract showing the buyer's name, purchase price, and mortgage information. Respondent delivered the contract, together with a business card showing Respondent as a salesperson with Active One, to another salesperson who was employed by the broker representing the sellers. Respondent also signed the contract as a cooperating broker on behalf of Active One. Prior to the sellers' execution of the contract, which had already been signed by Respondent's husband, Respondent informed the sellers' agent that certain provisions of the contract needed to be changed. The sellers' salesperson prepared another contract, which Respondent's husband signed December 2, 1990. Over Respondent's objection, the sellers' salesperson insisted that the contract contain an addendum stating that Respondent would be participating in the commission and her spouse was the buyer. Respondent's husband, as buyer, also signed the addendum on December 2. Respondent failed to inform Active One of the contract, which the sellers signed on December 8, 1990. The closing was set for no later than January 30, 1991. Active One learned of the contract by chance. An employee of the title company writing the title insurance noticed the name of Active One on the contract. He mentioned the fact to his wife, who is a broker with Active One. When the broker called Respondent and asked her why she was writing a contract when she was no longer licensed, Respondent said only that she had not realized that she was not licensed.
Recommendation Based on the foregoing, it is hereby recommended that the Florida Real Estate Commission enter a final order determining that Respondent violated Sections 475.42(1)(a) and, thus, 475.25(1)(e), Florida Statutes, issuing a reprimand, and imposing an administrative fine of $1000. RECOMMENDED this 17th day of June, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Poornawatie Tiwari 9916 N.W. 9th Ct. Plantation, FL 33322
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. 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 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues in this case are whether the Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Division of Real Estate is the state agency responsible for the regulation of the real estate sales profession in Florida, including licensure of real estate sales associates and enforcement of the statutory provisions within its charge. Ms. Friels is a real estate sales associate who first obtained her license in 2005. Ms. Friels has never had any prior disciplinary action taken against her. Ms. Friels received a renewal notice from the Department of Business and Professional Regulation (the Department), notifying her that her sales associate license was due to expire on March 31, 2009. The notice touted in bold print that the "Department Provides Instant Online Renewal," while also offering a Renewal Notice card to detach and mail in to the Department. The Renewal card option required nothing to be filled in by the licensee unless an address update were necessary (in which case a box could be checked and the address updated on the back of the card), or unless the licensee wanted to opt for inactive status, which could be done by checking a different box. Otherwise, the card could simply be sent in with payment of the $85.00 renewal fee. The card included the following statement in small print: IMPORTANT: SUBMITTING YOUR RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Ms. Friels had been undergoing a period of great personal challenges and stress in the two-year period leading up to the licensure expiration date and nearly missed the renewal deadline. On the day before her license was to expire, she utilized the "Instant Online Renewal" option after contacting a Department customer representative to make sure that her online renewal payment would be credited immediately so that it would be timely before the March 31, 2009, expiration date. As alleged in the Administrative Complaint, "[o]n . . . March 30, 2009 Respondent paid the renewal fee of $85.00 to renew her real estate license." The Department receipt showed the online payment of the $85.00 fee on March 30, 2009, for the renewal of real estate sales associate License No. SL3141119 held by Marsha Evans Friels. At the time Ms. Friels processed her online license renewal, she had not completed the 14 hours of continuing education she was required to complete during the two-year licensure period ending on March 30, 2009, but Ms. Friels did not realize at that time that she had not complied with the continuing education requirements. Ms. Friels explained that although she was generally aware of the continuing education requirement for licensure renewal, the reason she did not realize that she had not taken the required coursework during this particular two-year period was because she was coping with a series of tragic, personal challenges. The circumstances were compelling, as she explained: In May 2007, Ms. Friels' older sister died of breast cancer; then, in October 2007, Ms. Friels' father died, and Ms. Friels assumed the responsibilities for arranging for his funeral and then probating his estate; and finally, Ms. Friels' youngest sister, who was diagnosed with paranoid schizophrenia and had lived with her father, was left without care, and the responsibilities for caring for her sister and making decisions about her placement fell on Ms. Friels' shoulders. While these circumstances do not excuse a failure to comply with the continuing education requirements during the two-year period, the totality of the circumstances make the oversight understandable and mitigate against Ms. Friels' culpability. Ms. Friels was under the impression that having accessed the Department's "Instant Online Renewal" and successfully remitted payment of the renewal fee in time, she had done all that was needed to renew her license. She received no notice to the contrary. Apparently, however, at some point after Ms. Friels thought she had successfully renewed her license via the Department's Instant Online Renewal service, the Department's records re-characterized the status of Ms. Friels' license as involuntarily inactive, effective on March 31, 2009, "due to non[-]renewal of her real estate sales associate license." Neither Ms. Friels, nor the licensed broker with whom Ms. Friels was associated, received notice that her real estate sales associate license had been changed to inactive status, that Ms. Friels had not satisfied the continuing education requirements at license renewal, or that her "Instant Online Renewal" and payment were ineffective to renew her license. Ms. Friels presented evidence of the Department's practice to issue a Notice of Deficiency or a Continuing Education Deficiency letter, when a real estate sales associate renews a license without having completed the required continuing education hours. No evidence was offered to explain why this practice would not have applied in this case or why no such notice was given to Ms. Friels. Operating under the impression that she had successfully renewed her license and receiving no notice to the contrary, on one occasion, on approximately June 1, 2009, Ms. Friels participated as a real estate sales associate working on a real estate sales contract under the supervision of Ms. Williams, the licensed broker with whom Ms. Friels was associated, who remained actively involved in the transaction. Mr. Brissenden is a real estate appraiser who was asked to perform an appraisal on the property that was the subject of the same contract, which is how he came to learn that Ms. Friels was operating as a sales associate. Mr. Brissenden testified that he happened to be online on the Department's licensing portal checking on some other things when he looked up Ms. Friels' license out of curiosity. He saw that her license was shown to be inactive, and, so, he filed a complaint. Ms. Friels first learned that she had not completed the required continuing education hours in the two-year period before renewal when she received a letter advising her that she was being investigated for operating as a sales associate without an active license. Immediately upon learning that she had a continuing education deficiency, Ms. Friels took the 14-hour continuing education course and successfully completed the required hours. This course included the "Real Estate Core Law" component required by Florida Administrative Code Rule 61J2-3.009(2)(a). The course material, which according to rule, must be submitted to the Florida Real Estate Commission for review and approval, included the following: In the event a license is renewed without the required continuing education course having been completed, the licensee will be sent a deficiency letter. This letter will inform the licensee that the required continuing education was not completed prior to renewal. Ms. Friels' license was reinstated to "active" status on October 16, 2009, following her completion of the 14-hour course credited to her prior renewal cycle. Ms. Friels cooperated with the investigation and submitted a letter with supporting documentation explaining that she did not realize she had not completed the continuing education course during the prior two years and detailing her personal circumstances that led to her oversight. At the completion of the investigation, the investigator contacted Ms. Friels to deliver a Uniform Disciplinary Citation, on December 11, 2009. By this document, the investigator sets forth her determination that there was probable cause to believe Ms. Friels had violated Subsection 475.42(1)(b), Florida Statutes, and that the Department had set the penalty at a $500.00 fine (plus no additional amount for costs). Ms. Friels had the choice of accepting the citation, in which case it would become a final order, or disputing the citation, in which case the charges would be prosecuted as a disciplinary action pursuant to Section 455.225, Florida Statutes. Ms. Friels testified that while she accepted responsibility for not completing the required continuing education and was willing to resolve this matter by paying the $500 fine in December 2009, she was unwilling to accept the citation's charge of violating Subsection 475.42(1)(b), Florida Statutes. That subsection establishes the following as a violation: A person licensed as a sales associate may not operate as a broker or operate as a sales associate for any person not registered as her or his employer. Ms. Friels perceived this charge as more serious, in effect, charging her with operating outside the scope of her sales associate license by operating in a broker capacity. Throughout this proceeding, Ms. Friels remained sensitive to the suggestion that she had operated as more than a real estate sales associate and went to great pains to establish that she did not exceed the bounds of a licensed real estate sales associate and that she was acting under the supervision of the licensed broker with whom she was associated. The subsequently-issued Administrative Complaint charged Ms. Friels with a violation of Subsection 475.42(1)(a), Florida Statutes, not Subsection 475.42(1)(b), Florida Statutes, as charged in the Uniform Disciplinary Citation. By this time, however, when Ms. Friels attempted to resolve the dispute, the Division of Real Estate would not agree to the penalty originally proposed in the Citation (with the incorrect statutory charge), but instead proposed additional terms, including payment of $521.40 in investigation costs on top of the $500 fine, plus attendance at two meetings of the Florida Real Estate Commission. Ms. Friels objected to the increased financial consequences since in her view, the reason why the dispute was not resolved by the citation was because the wrong statutory violation was charged. Before the evidentiary hearing, counsel for the Division of Real Estate acknowledged that this case involves, at most, a "minor violation of licensing law." After the evidentiary portion of the hearing, counsel reiterated the Division's position that "this is a minor licensing violation and we're looking for a very minor penalty." Inexplicably, the Proposed Recommended Order submitted by the Petitioner proposed a significantly elevated recommended penalty. The Petitioner proposed an increased fine of $1,000, plus a 30-day suspension, plus costs of investigation, plus "fees pursuant to Section 455.227(3), Florida Statutes,"3 despite assurances at the close of the hearing that the Petitioner was only looking for a "very minor penalty" consistent with what had been previously offered. The appropriate penalty for a violation of licensing law cannot be determined without first reviewing the record evidence on mitigating and aggravating circumstances in accordance with Florida Administrative Code Rule 61J2-24.001(4). Here, no aggravating circumstances were established or even argued while there are multiple mitigating circumstances. There was no evidence of any harm to the consumers or public as a result of Ms. Friels' oversight in not completing her continuing education by her license renewal date or as a result of her participating as a real estate sales associate in a transaction in June 2009. The fact that there was only one count in the Administrative Complaint is a mitigating circumstance to be considered. Likewise, the fact that Ms. Friels has no disciplinary history is another mitigating circumstance weighing in favor of leniency below the normal penalty ranges established in rule. Consideration of the financial hardship to the Respondent as a result of imposition of a fine or suspension of a license, adds to the weight of mitigating circumstances. Ms. Friels testified to the hardship she has endured as a result of personal circumstances beyond her control. Ms. Friels was forthright and sincere in accepting responsibility for her oversight and acted immediately to rectify the continuing education deficiency as soon as she received notice of it. Under the circumstances, imposition of a fine or suspension of her license would result in unnecessary financial hardship. Finally, under the catch-all language in Florida Administrative Code Rule 61J2-24.001(4)(b) ("mitigating circumstances may include, but are not limited to . . ."), consideration must be given to the Respondent's compelling personal circumstances that make her oversight understandable and mitigate further against imposing a penalty in the normal range. The circumstances here were far from normal, and imposing a penalty as if they were normal would be unduly harsh.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding that the Respondent, Marsha Evans Friels, violated Subsection 475.42(1)(a), Florida Statutes (and, thereby, Subsection 475.25(1)(e), Florida Statutes); issuing a reprimand as the sole penalty; and waiving the permissive assessment of costs allowed by Subsection 455.227(3)(a), Florida Statutes. DONE AND ENTERED this 24th day of September, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2010.
The Issue The issue presented is whether Petitioner's application for licensure as a retail installment seller should be granted.
Findings Of Fact John K. Moyant is the president and secretary of Petitioner Lifestyle Builders, Inc. He has also been a licensed general contractor in the state of Florida since 1973. He was formerly licensed by the state of Florida as a real estate broker. In July of 1986, the Florida Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Moyant and others. Moyant subsequently decided that he would voluntarily surrender his real estate broker license rather than defend the administrative action filed against him. On November 12, 1987, he executed an Affidavit for the Voluntary Surrender of License for Revocation. That Affidavit read, in part, as follows: That in lieu of further investigation and prosecution of the pending complaint(s) and case(s) received and filed with the Department of Professional Regulation, I do hereby consent to and authorize the Florida Real Estate Commis- sion of the Department of Professional Regulation to issue a Final Order revoking any and all licenses and permits issued to or held by the undersigned. That effective date of the revocation shall be 11-12-87. That I will not apply for nor otherwise seek any real estate license or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation. * * * 8. That I waive any right to appeal or other- wise seek judicial review of the Final Order of revocation to be rendered. The Florida Real Estate Commission entered a Final Order on December 10, 1987, ordering that Moyant's license "be revoked, effective November 12, 1987." On May 16, 1994, Moyant completed, on behalf of Petitioner, an Application for Retail Installment Seller License. That application identified Moyant as one of the principals in the business in that he is the president and secretary and further listed Moyant as the corporation's resident agent. Question numbered three on that application reads as follows: 3. Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against? Moyant answered that question in the negative. Respondent received the application of Lifestyle Builders, Inc., on May 19, 1994. In reviewing that application, Respondent checked Moyant's name in the Department's computer system known as CREAMS. The computer check revealed that Moyant had been the subject of a Final Order of Revocation by the Florida Real Estate Commission. Respondent verified the accuracy of that information by obtaining from the Commission a copy of the Administrative Complaint, the Affidavit for the Voluntary Surrender of License for Revocation, and the Final Order. Based upon that information, Respondent advised Petitioner that its application was denied. Moyant's answer to question numbered three was a material misstatement of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a retail installment seller. DONE and ENTERED this 27th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 27th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Recommended Order did not contain any clearly- identified proposed findings of fact. It is assumed that the un-numbered paragraphs contained in the section entitled "Preliminary Statement" are intended to be Petitioner's proposed findings of fact. Rulings on those un- numbered paragraphs are as follows: Petitioner's first through third un-numbered paragraphs in the Preliminary Statement portion of Petitioner's Proposed Recommended Order have been adopted in substance. Petitioner's fourth un-numbered paragraph in the Preliminary Statement portion of Petitioner's Proposed Recommended Order has been rejected as not being supported by the credible evidence in this cause. COPIES FURNISHED: Robert D. Lettman, Esquire 8010 North University Drive, Second Floor Tamarac, Florida 33321-2118 Tobi C. Pam, Esquire Department of Banking and Finance 201 West Broward Boulevard, Suite 302 Ft. Lauderdale, Florida 33301-1885 Honorable Robert F. Milligan Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Petitioner's license as a Professional Surveyor and Mapper became void on March 1, 1997, by operation of Section 455.271, Florida Statutes. If so, whether the Board of Surveyors and Mappers (Board) has the authority to reinstate Petitioner's license in any manner other than that set forth in Section 455.271(6), Florida Statutes. Whether the Board is estopped from asserting that Petitioner's license should not be reinstated. Whether Petitioner is entitled to have his license reinstated by operation of Section 472.041, Florida Statutes.
Findings Of Fact Petitioner was initially licensed as a Professional Surveyor and Mapper on July 11, 1986, and issued license number 0004297. Such licenses must be renewed every two years pursuant to Section 472.017, Florida Statutes. The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. Pursuant to Section 472.015, Florida Statutes, DBPR is the agency of the State of Florida that actually issues such licenses. It is undisputed that Petitioner renewed and maintained an active license through the 1993/1994 biennium, which ended February 28, 1995. There is a conflict in the evidence as to whether Petitioner renewed his license after the 1993/1994 biennium. Petitioner testified that he mailed to DBPR by regular mail a form renewing his license for the 1995/1996 biennium, enclosed a check in the appropriate amount with the renewal form, and requested in writing on the back of the renewal form that the status of his license be changed from active to inactive because he could not at that time meet continuing education requirements. Petitioner produced a copy of the renewal form and a copy of the check, dated February 10, 1995, he said he mailed to DBPR. Petitioner did not know whether his check had been cashed, and he did not receive anything from DBPR reflecting that his license had been renewed and placed in an inactive status. Whenever any licensee renews a professional license, DBPR issues and mails a two-part license containing a wallet portion and a display portion that verifies the renewal. 3/ Petitioner made no effort to determine why his check had not been cashed or why he had not received his renewed license. Petitioner's failure to follow-up on his renewal request can be explained, in part, by the fact that his life was in disarray, both from a personal and a professional perspective. During this period in 1995, Petitioner had closed his surveying business and was working in an unrelated business, he was living in the marital residence on an intermittent basis, and he was depending on his estranged spouse and his children to deliver his mail to him. Respondent's records do not reflect that Petitioner took any action after the 1993/94 biennium to renew or inactivate his license. Had Petitioner taken such action, Respondent's records would have contained a renewal request form, the request to inactivate the license, and documentation that a renewed license had been forwarded to Petitioner. Had DBPR received a renewal check from Petitioner, its records would reflect that the check had been received and negotiated. The conflict in the evidence is resolved by finding that Petitioner failed to renew his license after the 1993/1994 biennium. On March 1, 1995, Petitioner's license became delinquent pursuant to Section 455.271(5), Florida Statutes. On March 9, 1995, DBPR changed its computer records to reflect that Petitioner's license status had been changed to delinquent. In November 1996, Petitioner's address of record with DBPR was his marital residence, 1620 Southwest 99 Court, Miami, Florida. Petitioner continued to use the marital residence as his address of record with the Board and DBPR until November 1999. There was a dispute in the evidence as to whether DBPR and the Board had Petitioner's correct address of record. Petitioner introduced a roster of individuals and firms holding active Professional Surveyors and Mappers licenses that was prepared from the Board's data base as of October 1994. This roster contained an incorrect address for Petitioner. Respondent established that this roster was not used by either the DBPR or the Board to mail any of the forms or notices at issue in this proceeding. Respondent also established that both DBPR and the Board had Petitioner's correct address of record at all times pertinent to this proceeding. The conflicting evidence is resolved by rejecting Petitioner's contention that the pending cancellation notice was not mailed to his address of record in November 1996. Petitioner testified that he never received any notice that his license was about to be cancelled. The records of DBPR established that a Notice of Pending Cancellation of License was processed by DBPR on November 18, 1996, and mailed to Petitioner at his address of record on November 22, 1996. The notice advised that Petitioner's license would become null and void on March 1, 1997, if the license was not placed on an active or inactive status by that date. The notice also advised that it was the only notice Petitioner would receive before his license became null. Petitioner initiated no communication with either DBPR or the Board in 1996, 1997, or 1998. On March 1, 1997, Petitioner's license became null by operation of Section 455.271(6), Florida Statutes. DBPR entered in its computer system on March 9, 1997, that the status of Petitioner's license had been changed from the classification of "delinquent" to the classification of "null and void." In 1999, Petitioner decided to return to activities requiring licensure as a Professional Surveyor and Mapper. When he applied for a job with a surveying company in the fall of 1999, he learned that his license was classified null and void. Petitioner, through attorney T. S. Madson, II, moved the Board to reinstate his license and requested the opportunity to present argument in support of his motion at the Board meeting scheduled for January 12-14, 2000, in Tallahassee, Florida. Mr. Madson and Petitioner appeared before the Board on January 13, 2000. Upon hearing Petitioner's claim that he had not received the pending cancellation notice in November 1996, the Board voted to reinstate his license. 1/ The Board did not enter a written order memorializing that vote. On March 6, 2000, counsel for DBPR filed a formal motion that the Board reconsider its vote to reinstate Petitioner's license, arguing that the Board lacked the legal authority to reinstate a license that had become null and void. Subsequent to the Board's vote on January 13, 2000, Petitioner engaged in activities that require licensure as a Professional Surveyor and Mapper. Until May 2000, Petitioner sealed surveys using license number 0004297. On May 18, 2000, at a duly noticed meeting in Key West, Florida, with Petitioner and Mr. Madson in attendance, the Board addressed DBPR's motion to reconsider. After debate, the Board voted to grant the motion to reconsider and thereafter voted to rescind its previous order reinstating Petitioner's license. A written Order Rescinding Reinstatement of License was formally entered on May 31, 2000. The basis for the vote was the Board's determination that it lacked the legal authority to reinstate Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application that his license be reinstated. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of February, 2001.
The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2017.
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license; and (2) whether Petitioner is entitled to waiver of his felony conviction in accordance with Chapter 550, Florida Statutes (2006).
Findings Of Fact Petitioner submitted an application for a pari-mutuel wagering occupational license as a racehorse owner on or about March 30, 2005. On his application, Petitioner accurately reported that he had been convicted on one count of Conspiracy to Transport Stolen Property and Evade Taxes, a felony. Due to Petitioner’s felony conviction, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver failed to include any information which would establish his rehabilitation or demonstrate that he is of good moral character. In the regular course of the Division's review of Petitioner's application and request for waiver, on or about April 11, 2005, Petitioner was interviewed by Dennis Badillo, an investigator for the Division. During the interview, Mr. Badillo completed a waiver interview form based upon the answers provided by Petitioner. Petitioner was afforded a full and fair opportunity to present information to establish his rehabilitation and to demonstrate his present good moral character, but Petitioner did not provide such information. In light of the information regarding Petitioner’s felony conviction, which is undisputed and admitted by Petitioner on his application form and at the final hearing, Petitioner does not meet the eligibility requirements for the license he seeks. At hearing, Petitioner attempted to minimize his role in the crime of which he was convicted, and expressed the view that he "doesn't have much time" to fulfill his desire to "participate in the racing industry" in Florida, inasmuch as he has passed his 70th birthday. Petitioner failed to present any testimony from friends, relatives, associates, employers, probation officers, or other individuals to establish good conduct and reputation subsequent to the date of his felony conviction. Absent such evidence, the Division has no basis upon which to conclude that Petitioner is rehabilitated or that Petitioner is of present good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner’s application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 31st day of January 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of January, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph L. Nacca 268 West Walk West Haven, Connecticut 06516 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Respondent's, Diane Thompson, a licensed Florida real estate broker, license should be disciplined for fraud, misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact Respondent, Diane Thompson, at all times material, was a Florida real estate broker, issued license number 0582890 in accordance with Chapter 475, Florida Statutes; was employed by Di-All Company, 5607 Interbay Boulevard, Tampa, Florida; and was subject to the regulatory jurisdiction of the Florida Real Estate Commission (Commission). Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, the Department is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. Diane Thompson, as the Listing Broker for Di-All Company, entered into a Residential Listing Contract (Listing Contract) with the seller (Metcalfe), for the exclusive right to secure a purchaser for Metcalfe's waterfront residential villa located at 2132 Cedar Drive, Dunedin, Florida, at an asking price of $350,000. The Listing Contract was effective June 28, 1998, with an expiration date of May 28, 1999. For procuring a purchaser of this property, Diane Thompson was entitled to a brokerage fee totaling seven percent of the sale price, with a minimum fee of $2,500, plus a closing fee of $145. The Listing Contract provided for Diane Thompson to receive a commission should the property be sold by and through another broker or agent during the exclusive listing period of April 9, 1999, through October 19, 1999. Diane Thompson procured the exclusive Listing Contract for Di-All Company. Both are identified collectively in the Listing Contract as the "Listing Agent." The District Six Residential Profile Sheet, signed by Metcalfe on October 19, 1998, extended the exclusive Listing Contract's original expiration date from October 19, 1998, to October 19, 1999. Initially unknown to Diane Thompson and at some time after execution of the exclusive Listing Contract, Metcalfe granted power of attorney to sell her waterfront residential property to her daughter, Pam Houle. Through that power of attorney, Pam Houle contracted with another broker and eventually sold Metcalfe's waterfront property. Because of that sale, Diane Thompson was not paid the Listing Agent's commission as provided for in her exclusive Listing Contract with Metcalfe. Attempts by Diane Thompson to resolve this dispute with Metcalfe, with Pam Houle, and with Pam Houle's attorney failed. At some time in June of 1998, Julie Johnson and a male friend flew from New Hampshire to Florida. The intent and purposes for their trip to Florida included looking for home sites and business sites as potential purchases. During her initial visit to Florida and on or about June 28, 1998, Julie Johnson appeared at Diane Thompson's home/office in response to Diane Thompson's media advertisements listing Metcalfe's waterfront property for sale. Responding to Julie Johnson's interest as a potential buyer of waterfront properties, Diane Thompson drove Julie Johnson to 2123 Cedar River, Dunedin, Florida, Metcalfe's waterfront residential villa. After showing Julie Johnson this property and after Julie Johnson's inspection of this residence, Diane Thompson drove Julie Johnson back to her office. At her office, Diane Thompson prepared the offer to purchase Metcalfe's property ("Residential Sale and Purchase Contract") and observed Julie Johnson sign her name to the offer to purchase document. Thereafter, and for the purpose of presenting Julie Johnson's offer to purchase to Metcalfe and/or to Metcalfe's agents for consideration, Diane Thompson made many attempts to contact Metcalfe, to contact Pam Houle, and to contact Pam Houle's attorney. Diane Thompson received no response from Metcalfe, no response from Pam Houle, and no response from Pam Houle's attorney. Because of Diane Thompson's lack of success to make contact with Metcalfe or her agents for the purpose of presenting Julie Johnson's offer to purchase, She did not request that Julie Johnson pay the $1,000 deposit, identified on the offer to purchase contract as the "Purchase Price (a)." Following her failure to make contact with Metcalfe, Diane Thompson introduced Julie Johnson to Barbara Larkins, a friend and real estate broker, who also listed waterfront properties for sale. At some period in 1999, Diane Thompson placed an advertisement for an Independent Contractor (licensed real estate person) in the local media. During the 1999 period when Diane Thompson's advertisement was in the media, Julie Johnson was present in Florida. Julie Johnson became aware of Diane Thompson's advertisement for an Independent Contractor and personally responded to the advertisement notice. Julie Johnson's response to Diane Thompson's advertisement was the second meeting of Diane Thompson and Julie Johnson. In October of 1999, Julie Johnson secured her Florida real estate license. On December 21, 1999, Julie Johnson signed an Independent Contractor agreement with Diane Thompson. Diane Thompson personally observed Julie Johnson sign her name to the Independent Contractor agreement. Julie Johnson signed her Florida driver's license, and a copy thereof was admitted into evidence establishing the fact that Julie Johnson's signature on the two documents and her signature on her Florida driver's license are not dissimilar. The waterfront property owned by Metcalfe, which Diane Thompson, as the Listing Broker for Di-All Company, had a Listing Contract for the exclusive right to procure a purchaser for Metcalfe's resident, was sold by and through another licensed real estate broker. When she became aware of that sale, Diane Thompson sought the brokerage commission as provided in her exclusive Listing Contract. Unable to resolve her dispute with Metcalfe, Diane Thompson filed a lawsuit in Pinellas County naming Metcalfe as defendant. During that circuit court proceeding, counsel for Diane Thompson proffered Diane Thompson's April 9, 1999, Residential Sale and Purchase Contract signed by Julie Johnson. In opposition to counsel for Diane Thompson's proffer, counsel for Metcalfe proffered Julie Johnson's December 19, 2002, affidavit that stated, in pertinent part: "On April 9, 1999, I was residing and working in Rochester, New Hampshire, while the signature is similar to mine, I do not recall having signed this document and never intended to make an offer to purchase Ms. Metcalfe's home."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent, Diane Thompson, not guilty of the charge brought against her and dismiss the Administrative Complaint filed in this proceeding. DONE AND ENTERED this 5th day of May, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 5th day of May, 2003.
Findings Of Fact Some time before May 15, 1992, the Petitioner, Executive I & II, Inc., applied for licensure to operate as an adult congregate living facility (ACLF). (It had been, and is still, operating as a licensed boarding home.) The exact date of the application, or how long before May 15, 1992, the application was made, is not clear from the evidence. The facility operated by the Petitioner is the same facility that was the subject of Division of Administrative Hearings (DOAH) Case Nos. 90-3356 and 90-3791. Before and during the pendency of those proceedings, the facility was owned and operated by Kriscour, Inc., d/b/a Executive I & II. Kriscour, Inc., is a separate legal entity from the Petitioner. The sole owner and operator of the Petitioner was the sole owner and operator of Kriscour, Inc., until October 10, 1989, when he became a 49% owner of Kriscour and ceased all involvement in the operation of the facility. Throughout, however, he owned the real property operated by Kriscour and by the Petitioner. In DOAH Case No. 90-3356, HRS sought to revoke Kriscour's conditional ACLF license. While it was pending, Kriscour applied for renewal of the license, and HRS denied renewal. Kriscour initiated formal administrative proceedings, which became DOAH Case No. 90-3791. The two cases were consolidated at DOAH. Ultimately, they resulted in an HRS Final Order denying the renewal application and "cancelling" the conditional license. Kriscour appealed the Final Order to the District Court of Appeal, Second District of Florida, where it was given Case No. 91-00751. Kriscour obtained a stay of the Final Order and continued to operate the facility as an ACLF during the appellate proceedings. Meanwhile, on or about November 26, 1991, the Petitioner, Executive I & II, Inc., was formed and became licensed to operate the facility as a boarding home. The Petitioner made extensive renovations and improvements to the physical plant. At the same time, Kriscour continued to operate the facility as an ACLF. Ultimately, the appellate court upheld the Final Order. The court's Mandate, which operated to dissolve the stay, was entered on January 2, 1992. On or about that date, Kriscour ceased to operate the facility as an ACLF and began operating the facility as a boarding home. To date, the Petitioner has operated the facility exclusively as a boarding home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying the application of the Petitioner, Executive I & II, Inc., for licensure to operate as an ACLF. RECOMMENDED this 21st day of October, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of October, 1992.
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division), for the Florida Real Estate Commission, was the state agency responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate salesperson or broker in Florida. During pertinent portions of 1990, Respondent was licensed both as a real estate broker by the Division, and as a contractor by the Construction Industry Licensing Board of the State of Florida. During that period he handled numerous sales of real property for the United States Veterans Administration and received deposits of funds on those sales which he placed in his brokerage trust account with First Commercial Bank of Manatee County. At that time, the bank had a policy on availability of funds of seven business days for out-of- town checks and three business days for local checks. In January 1990, Respondent wrote five checks from his trust account, each in excess of $1,000.00. Three of these were to the VA for sales deposits, and two were to others. All five checks were dishonored for insufficient funds. Thereafter, on August 24, 1990, the Division filed an Administrative Complaint against the Respondent alleging the utterance of dishonored checks as misconduct. Respondent, at an informal hearing, admitted the utterance of the dishonored checks, and as a result, the Florida Real Estate Commission revoked his broker's license on October 16, 1990. Respondent's subsequent appeal of that action to the Second District Court of Appeal resulted in a per curiam denial of his petition for review. Sometime later, in 1991, Respondent appealed to the Commission for reinstatement. At a subsequent hearing before the Commission, an exculpatory letter of explanation from Respondent's accountant resulted in the Commission allowing Respondent to sit for the salesman's examination, as a result of which he was subsequently licensed as a salesman. Respondent was thereafter again licensed as a broker on December 6, 1993. In the interim, however, on June 4, 1992, Respondent's contractor's license was disciplined by the Construction Industry Licensing Board for misconduct involving his failure to properly supervise a construction project and allowing an unlicensed individual to do the work on a project for which he had pulled the permit. An informal hearing was held by the Board as a result of which it imposed an administrative fine of $2,000.00, and to assure the payment thereof, provided for suspension of Respondent's license if the fine was not paid within thirty days. Respondent admits he did not pay the fine. He contends he called the Board office to inquire what would happen were he not to pay the fine and was advised his license would be suspended. Since Respondent intended to cease working as a contractor anyway, he elected not to pay the fine and sent his license in to the Board. Respondent's contractor's license was suspended on July 22, 1992, though he claims he did not receive a copy of either the Board's Final Order or the notice of the suspension going into effect. Respondent had an obligation to pay the fine imposed as punishment for past misconduct. Voluntary relinquishment of his license, which he thought he could do without effect on him since he was getting out of the construction business, did not excuse his non-payment of the fine. On October 21, 1993, after Respondent's salesman's license had been reinstated, he applied for licensure as a broker, In his answer to the first part of question 13 on the application form, Respondent indicated he had had a license suspended. He noted thereon the prior case against his license by the Commission which dealt with the dishonored checks. He did not, however, list the action taken against his contractor's license. He listed the prior real estate case, he contends, upon the advice of someone in the Division office. He did not, at the time of his call to the Division indicate or inquire about the action taken by the Board on his contractor's license. He claims he did not list that action on the application form because the action taken by the Board was not based on fraud or dishonesty but merely a failure to supervise, and because he did not know his license had been suspended. He thought that voluntarily relinquishing his license ended the situation. Respondent claims he did not intend to conceal any misconduct or adverse action as he could not do so. It was a matter of public record, and he believed the information available to one regulatory board was available to all others that were under the Department. At some point thereafter, not further established, a complaint was filed with the Commission which resulted in the matter being referred to Mr. Pence for investigation. Mr. Pence assembled the documents relating to the allegation of concealment and sent a written notice of his inquiry to the Respondent. Upon receipt of that notice, Respondent telephoned Mr. Pence to discuss the matter. During the ensuing conversation, Pence asked Respondent if he was aware of his suspension by the Construction Board and claims Respondent indicated he was. Respondent allegedly indicated he was under the impression he had been fined by the Board and that the suspension was only to insure the fine was paid. Respondent further indicated that because of the depressed economy and because he was not much interested in keeping his contractor's license he had let it go. In evaluating the evidence presented, it must be noted that the interview between Pence and the Respondent took place about a year ago. Pence's investigative notes are no longer available and he testified from memory. It was evident that much of Mr. Pence's testimony was a reconstruction of how Mr. Pence, in retrospect, felt he would have handled the interview and what he feels sure he would have asked. Taken together, the evidence of record establishes that Respondent was disciplined by the Real Estate Commission for dishonored checks and his license revoked. Though, on the basis of his accountant's exculpatory letter, Respondent was allowed to be re-examined for a salesman's license, that evidence did not completely exonerate the Respondent. This is shown by the fact that the revocation of his broker's license was not reversed. He was merely allowed to reapply for licensure as a salesman. In addition, the accountant's letter does not explain or justify all the bad checks. In regard to the Construction Board's discipline, the evidence shows that Respondent pulled a permit and then allowed a non-licensed individual to do most of the work without proper supervision. Respondent contends that complaint was filed by his friend, the owner of the property, after the project in question was determined to be far more extensive than had been anticipated. The complaint, Respondent asserts, was not made because of any dissatisfaction arising out of his performance, but merely to preserve the owner's interest as to a possible insurance claim. That argument is not persuasive. The fact is that Respondent was disciplined because he had committed an act which authorized the imposition of discipline. His approach to the situation was cavalier, and that approach or attitude continues to raise a substantial question as to his fitness to have entrusted to him the money, property, transactions and rights of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Florida Real Estate Commission enter a Final Order finding Respondent, Warren Up. Box, guilty of Misrepresentation and concealment in his application for a license as a real estate broker in Florida, and of having been twice guilty of misconduct which warrants suspension, and revoking his license as a real estate broker in this state. RECOMMENDED this 9th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional regulation Division of real Estate Post Office Box 1900 400 West Robinson Street, N-308 Orlando, Florida 32802-1900 Terrence Matthews, Esquire 5190 26th Street West Bradenton, Florida 34207 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802-1900
