The Issue The issue in this case is whether Respondents negotiated the sale of real property and collected a commission on said sale without the requisite real estate license issued by the State of Florida.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty of prosecuting Administrative Complaints filed against real estate practitioners pursuant to the laws of the State of Florida. Respondent Rene Larralde, Jr., is a citizen of the State of Florida. At no time relevant to this proceeding did Larralde hold a Florida-issued license as a real estate sales associate or real estate broker. Respondent Maxous, Inc., is a Florida for-profit corporation formed on August 10, 2004. Larralde is president and registered agent of Maxous. Respondent Glinda G. Hatfield has held licenses as a Florida real estate broker and a Florida real estate associate. As of the date of the incident relevant to this proceeding, Hatfield's real estate broker's license was in an inactive status. Hatfield had failed to meet one of the continuing education requirements for renewal of her license that year. She was not aware of that fact until notification by the state relevant to the issues in this proceeding. Upon receiving notice, Hatfield took the necessary measures to have her license re-instated to active status. Hatfield assisted Larralde in forming Maxous. It was Hatfield's responsibility, as the licensed real estate broker in the new entity, to make sure Maxous was duly registered with the state as a real estate broker. Hatfield went to the Melbourne Association of Realtors to register the business once it had been incorporated. Hatfield did not understand that the business also had to be registered through the Florida Real Estate Commission in Tallahassee. Not being aware of that requirement, Hatfield never registered Maxous with the state. Rather, she paid the fees associated with registration of the company with the local real estate association and made the erroneous presumption that the company could then operate as a licensed real estate broker in the state. On or about February 27, 2008, certain parties entered into a Contract for Sale and Purchase (the "Contract") of property located at 1033 June Drive, Melbourne, Florida (the "Property"). Maxous was designated as the listing broker in the Contract. On April 21, 2008, the sale of the Property closed, as evidenced by a HUD Settlement Statement. The Settlement Statement indicates a real estate commission in the amount of $5,964.18 for the sale. The Settlement Statement indicates $2,982.09 (one half of the commission) is to be paid to Maxous and the other half of the commission to be paid to Exit One Realty. Exit One Realty was the listing agent for the Property, but had not been made aware of the impending sale. As the sole listing agent, Exit One Realty would normally expect to receive the entire broker's commission at the time of closing. However, Exit One Realty was not even aware of the sale of the Property until it received its commission. It appears that Maxous, through the person of Larralde, held itself out as the listing broker and assumed ownership of the commission on the sale of the Property. Larralde did, however, designate Exit One Realty as another broker in the sale who was entitled to half of the commission. At the time of the transaction involving the Property, Maxous was not registered with the State of Florida as a real estate broker. Larralde was not licensed as a real estate sales associate. In order to consummate this sale (and others like it), Larralde had established Maxous. It was apparently Larralde's intent, although he did not appear at the final hearing, to use Hatfield's status as a licensed broker to legitimize Maxous' status as a brokerage firm. Hatfield was amenable to that arrangement. Hatfield was designated as the vice-president of Maxous when the company was formed. As previously noted, Hatfield went to the Melbourne Association of Realtors for the purpose of registering Maxous as a brokerage entity. Hatfield paid the necessary fees to the association for the registration of Maxous with the local real estate association, and, upon inquiry from that office, felt that she had done everything necessary to allow Maxous to operate as a broker. Thus, at the time of the aforementioned transaction, Maxous was not a legitimate broker in the State of Florida. Hatfield assumed she was the registered broker for Maxous; assumed Maxous was duly registered with the state; and assumed that her broker's license was current. In matter of fact, none of those assumptions proved true. Clearly Hatfield did not attempt to circumvent or avoid the requirements for real estate brokers. Rather, she was mistaken about what had to be done regarding registration with the Florida Real Estate Commission. She did not know that her license had been deemed inactive for failure to complete a continuing education class. Neither Larralde, nor anyone else testified at final hearing as to what their knowledge was concerning these matters. It cannot be determined whether Larralde knew Maxous was not a registered brokerage firm and that the transaction relating to the Property was improper. However, Larralde did share the commission with Exit One Realty. It is clear from Hatfield's testimony at final hearing that she did not intend to defraud anyone or to do anything illegal or improper. However, her actions were improper nonetheless. It is not clear from the testimony whether Hatfield received any of the commission provided to Larralde. However, to her credit, Hatfield, upon learning of the violations set forth above, unilaterally ceased doing business as a real estate agent or broker. She acknowledged her mistake and took immediate action to make sure she would not make any further mistakes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate: (1) imposing a fine in the amount of $5,000 against Respondent, Rene Larralde; (2) imposing a fine of $5,000 against Respondent, Maxous, Inc; (3) imposing a fine of $250 against Respondent, Glinda G. Hatfield; (4) requiring Hatfield to pay the costs of the investigation in this matter; and (5) suspending Hatfield's real estate license for a period of one year. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 November, 2009. COPIES FURNISHED: Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-Suite 801 North Orlando, Florida 32801 Joseph G. Colombo, Esquire 2351 West Eau Gallie Boulevard, Suite 1 Melbourne, Florida 32935
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license as a greyhound owner; and, (2) whether Petitioner is entitled to waiver of the provisions in accordance to Chapter 550, Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following Findings of Fact are made: Petitioner, Stephen M. Morris, submitted an application for a pari-mutuel wagering occupational license as a greyhound owner on or about February 24, 2005. On his application for a pari-mutuel wagering occupational license, Petitioner accurately reported that he had been convicted of the following three felonies: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds, and (3) dealing in stolen property. The foregoing felony convictions were in or about 1976, 1984, and 1993, respectively, and were the result of offenses that occurred in Florida. Due to Petitioner's felony convictions, as noted in paragraph 2 above, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, on February 24, 2005, in addition to his application for a pari-mutuel wagering occupational license, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver did not include any information which would establish his rehabilitation or demonstrate that he has good moral character. As part of the Division's review of Petitioner's request for waiver, on or about April 5, 2005, Mr. Toner interviewed Petitioner. During the interview with Mr. Toner, Petitioner had the opportunity to present information that established his rehabilitation and demonstrated his present good moral character, but he did not produce such information. In light of the information regarding Petitioner's felony convictions, which are undisputed and included in Petitioner's application, Petitioner does not meet the eligibility requirements for the license which he seeks. By Petitioner's own admission, he was convicted of the felony offenses noted in paragraph 2 above. The number of felony convictions and the times that the offenses were committed, show a pattern of serious criminal behavior and recidivism. Petitioner may be rehabilitated and may have present good moral character. However, Petitioner did not testify at the final hearing and presented no evidence that he has been rehabilitated and has present good moral character. Absent from the record is any testimony from Petitioner or from Petitioner's friends, relatives, business associates, employers, or church members regarding Petitioner's good conduct and reputation subsequent to the date of his last felony conviction. In absence of any evidence that Petitioner has been rehabilitated and has present good moral character, the Division has no basis to grant Petitioner a waiver.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Petitioner, Stephen M. Morris', application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of December, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen M. Morris 162 Warren Avenue New Smyrna Beach, Florida 32168 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 Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether the Respondent committed the violation alleged in Count II of the Administrative Complaint dated August 17, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455, and 475, Florida Statutes. The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475. Section 475.02, Florida Statutes. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes. Randall F. Kladek has been licensed as a real estate salesperson since 1991, having been issued license number 0567643. His license has been periodically inactive either because he has failed to renew the license timely or because he was not employed by a broker. According to the Department's records, Mr. Kladek's license has been in involuntary inactive status since October 1, 1998, because it has not been renewed. With regard to the issues presented in this proceeding, Mr. Kladek's license expired on September 30, 1994, and his license was in an involuntary inactive status until it was renewed by the Department effective December 9, 1994. On or about October 16, 1994, Mr. Kladek approached Scott Betten, the broker for Income Real Estate, Inc., about possible employment with the agency. At that time, Mr. Betten checked with the Department to verify that Mr. Kladek had a current real estate salesperson license, and he learned that Mr. Kladek's license was inactive. Mr. Kladek had not renewed his salesperson license because he did not have the required continuing education credits. On or about October 30, 1994, Mr. Kladek returned to Income Real Estate, having completed the education requirements necessary for renewal of his salesperson license. At that time, Mr. Betten completed license renewal forms for Mr. Kladek, and he gave Mr. Kladek the completed renewal application and a form 400.5, which is used to register a licensed salesperson who has an active or an inactive license with an agency. Mr. Kladek mailed the forms to the Department on October 30, 1994, the day he received them from Mr. Betten. Mr. Betten was the broker who would supervise Mr. Kladek's activities as a real estate salesperson were he to be employed by Income Real Estate. Mr. Betten believed, albeit mistakenly, that Mr. Kladek's license would be considered active once he mailed the renewal application to the Department. Accordingly, Mr. Betten permitted Mr. Kladek to begin his employment with Income Real Estate the day after Mr. Kladek mailed the renewal application and the form 400.5 to the Department. On or about November 13, 1994, the Department returned the application packet to Mr. Kladek because he had failed to sign an affidavit attesting to the fact that, if the Department ever asked, he would provide proof that he had completed the necessary continuing education credits. Mr. Kladek had included with his application a certificate showing that he had completed the credits, but the affidavit was a new requirement for license renewal of which neither Mr. Betten nor Mr. Kladek was aware. Mr. Kladek signed the affidavit and immediately returned the packet to the Department, which duly renewed his salesperson license effective December 9, 1994. On October 30, 1994, Mr. Kladek entered into an agreement with Jonathan Polisar, who owned several rental apartments in a condominium building in Miami's South Beach area. Nine of the apartments were located at 524 Washington on Miami Beach, and one of the apartments was located at Bay Harbor Islands. The agreement provided that Mr. Kladek would manage the apartments owned by Mr. Polisar, providing basic maintenance repair and cleaning services, arranging for more extensive repairs, collecting rent, evicting tenants if the need arose, and renting vacant apartments. The agreement provided that, in exchange for his services, Mr. Kladek would be allowed to rent an apartment from Mr. Polisar at a reduced rent, and he would receive a $50.00 decrease in his monthly rent for each apartment rented, for the duration of the rental, with a permanent $50.00 decrease in his monthly rent for each apartment sold. In November 1994, shortly after Mr. Kladek moved into the apartment, Mr. Polisar terminated the agreement and demanded that Mr. Kladek vacate the apartment. At the time Mr. Polisar entered into the agreement with Mr. Kladek, Income Real Estate had an agreement with Mr. Polisar pursuant to which it was to market, rent, and sell any condominium units Mr. Polisar might have available. Neither Mr. Betten nor Income Real Estate were parties to the agreement between Mr. Kladek and Mr. Polisar, and Mr. Betten notified Mr. Polisar in writing that any agreement between him and Mr. Kladek was personal and did not involve Income Real Estate. On November 4, 1994, Mr. Kladek executed on behalf of Income Real Estate a contract in which Vincenz Amaddeo agreed to purchase and Jonathan Polisar agreed to sell condominium unit number 205 at 524 Washington on Miami Beach, the same condominium building which was the subject of the October 30, 1994, agreement between Mr. Kladek and Mr. Polisar. There is no evidence in the record to establish whether this sale would result in a decrease in Mr. Kladek's rent pursuant to his agreement with Mr. Polisar, but Mr. Kladek did expect to get a portion of the five-percent commission which Income Real Estate would receive when the sale was completed. During the time his license was inactive, Mr. Kladek did not execute any contracts for sale on behalf of Income Real Estate other than the one he executed on November 4, 1994, although he did do some rentals and "different things." Although he was affiliated with Income Real Estate until September 30, 1996, Mr. Kladek was not very active as a real estate salesperson while he was associated with the agency. The evidence is uncontroverted that Mr. Kladek did not have an active real estate salesperson license from October 1, 1994, through December 8, 1994. The evidence presented by the Department is sufficient to establish that Mr. Kladek operated as a real estate salesperson without holding a current license when he executed on behalf of Income Real Estate the November 4, 1994, contract for the sale and purchase of unit 205 of the Washington Center condominium building. The evidence is also sufficient to establish that Mr. Kladek operated as a real estate salesperson with respect to the agreement he entered into with Mr. Polisar. That agreement clearly contemplated that Mr. Kladek would manage, rent, and sell apartments owned by Mr. Polisar in exchange for compensation, even though the compensation was in the form of a decrease in his rent rather than by commission. Finally, the evidence is uncontroverted that Mr. Betten, the broker for Income Real Estate, incorrectly advised Mr. Kladek that his license would be valid and current at the time he mailed the completed application to the Department on October 30, 1994. The evidence is also uncontroverted that Mr. Kladek relied on Mr. Betten's advice when he operated as a real estate salesperson prior to learning that his license was not, in fact, renewed on October 30, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: Dismissing Count I of the Administrative Complaint; Finding Randall F. Kladek guilty of violating Section 475.42(1)(a), Florida Statutes (1993) and, therefore, Section 475.25(1)(e), Florida Statutes (Supp. 1994), as set forth in Count II of the Administrative Complaint; Suspending Mr. Kladek's real estate salesperson license for a period of thirty (30) days; Imposing an administrative fine against Mr. Kladek in the amount of $500.00; and Requiring Mr. Kladek to complete forty-five (45) hours of post-licensure real estate salesperson education, in addition to the continuing education requirements for renewal of his license. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 4th day of June, 1999.
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Blackwood is an apartment building with five units located at 4115 Riverside Drive, Coral Springs, Florida 33065- 5929. The Division issued Blackwood a license, numbered 16-16900-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Blackwood's license] is December 1, 2000." On June 5, 2000, and again on October 6, 2000, Division employee Cynthia Pieri conducted routine inspections of Blackwood. Each time, she found the apartments to be open and operating. Additionally, on both occasions Ms. Pieri took note that Blackwood's 1999-2000 license was not on display or available at the premises. On a Lodging Inspection Report that she prepared on June 5, 2000, 2/ Ms. Pieri checked box number 38 indicating a violation in connection with the following item: "Current license, displayed, available upon request." In the comments section of the form she wrote: "#38 1999-2000 DBPR license is not posted." Ms. Pieri left blank the spaces provided for informing the establishment of the date when its license would expire in a line that read: "REMINDER: Your license expires / / ." Petitioner's Exhibit 2. 3/ Kenneth Charles Buck, a Division employee, explained that ordinarily licensees such as Blackwood are sent a renewal notice. Regardless whether a licensee receives a notice, however, it is responsible for paying the required fee, which may be remitted either to the local office or to the Division's headquarters in Tallahassee. Transcript of Final Hearing ("T-") Sometimes, a licensee will pay the field inspector; field inspectors are authorized to accept license fees and issue receipts. T-14. Mr. Buck testified that the documents he could access on his computer indicated that Blackwood had failed to pay a license fee for the 1999-2000 period. T-13. Mr. Buck stated further that he had spoken with Blackwood's owner "on occasion" and had informed her that the license fee was due. T-14.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Blackwood Rentals. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of January, 2001.
The Issue Whether the petitioner's application for renewal of his community association manager's license should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Mr. Richter is a licensed community association manager, having been issued license number 1,439 by the Department in 1988. Mr. Richter's community association manager's license was renewed by the Department in 1990 and 1992. Mr. Richter is also licensed by the Department of Business and Professional Regulation as a real estate broker and as a Certified Public Accountant. The Department of Business and Professional Regulation, through its Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency charged with the administration of chapter 468, part VIII, Florida Statutes, and is specifically responsible for reviewing and approving applications for renewal of community association manager's licenses. The Bureau of Condominiums carries out this function. Community association manager's license renewal applications for the 1994 renewal year were required to be postmarked no later than September 30, 1994. On or about September 15, 1994, Mr. Richter mailed his completed 1994 license renewal application to the Department, together with a check made payable to the Department in the amount of $50.00, the required license renewal fee. In late November 1994, Mr. Richter telephoned the Department and inquired about the status of his renewal application. He spoke with Donald Sapp, an employee of the Bureau of Condominiums, who told him that the Department was behind in processing renewal applications for community association manager's licenses. The Department completed processing applications for the 1994 renewal period in mid-January 1995. On February 17, 1995, Mr. Richter telephoned the Bureau of Condominiums and advised Mr. Sapp that he had not received his 1994 license and that the check he wrote for the fee had not cleared his bank. Mr. Sapp stated that he would look into the matter and call Mr. Richter back. On February 21, 1995, Mr. Sapp telephoned Mr. Richter and advised him that the Department had no record of having received his 1994 license renewal application and check. Mr. Sapp asked Mr. Richter to send the Department a copy of his check register for the period including September 15, 1994, a copy of his bank statements for September, October, and November 1994, and a copy of a stop payment order on the check he wrote for the license renewal fee. On February 22, 1995, Mr. Richter sent Mr. Sapp, via Airborne Express, a copy of his check register and of the requested bank statements. He refused to place a stop payment order on his check, however. On March 10, 1995, Mr. Richter sent the Department a replacement check in the amount of $50.00 for the 1994 license renewal application fee. This check was received and, in accordance with standard procedure, deposited by the Department. Mr. Richter completed all of the continuing education hours required for license renewal prior to September 30, 1994. Mr. Richter has proven by a preponderance of the evidence that he timely mailed his 1994 license renewal application and that he should be granted a community association manager's license for 1994-1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order finding that Michael Richter's 1994 community association manager's license renewal application was postmarked prior to the September 30, 1994, deadline and granting Mr. Richter's application for a renewal license for 1994-1996. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of April 1996. PATRICIA HART MALONO 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 2nd day of April 1996.
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
