Findings Of Fact Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500. DONE and ENTERED this 16th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982.
Findings Of Fact The Department of Business and Professional Regulation, Division of Real Estate (Petitioner), is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Robert A. Schwartz (Respondent) was a Florida licensed real estate broker, having been issued license number 0481297, with an address of American Real Estate Properties, Inc., 13833 Wellington Trace, West Palm Beach, Florida. Respondent was initially licensed on or about May 23, 1988. At all times material hereto, Respondent was the qualifying broker and officer of American Real Estate Properties, Inc. (American Real Estate). On or about May 18, 1992, Respondent met with Ms. Renate Schuetze in West Palm Beach. 4/ Ms. Schuetze was from the State of New York and was interested in buying lots, building homes on the lots and renting the homes. Respondent had been referred to Ms. Schuetze by her friend, Ms. Mary Ann Runer. A few years ago, on behalf of Ms. Runer and using monies provided by her, Respondent had purchased a lot in West Palm Beach, overseen the contracting and construction of her home on the lot and rented out the home. All for which he charged Ms. Runer a fee. Ms. Schuetze wanted Respondent to do the same for her. On that same day, after meeting with Respondent, visiting prospective lots and model homes with him and discussing his process and procedure, Ms. Schuetze gave Respondent a check for $15,120 made payable to American Real Estate and returned to New York. Although Ms. Schuetze noted on the check that the money was for a deposit on one of the model homes, the monies were actually for a deposit of $2,000 on two certain lots ($1,000 each) and Respondent's fee of $13,000 ($6,500 per house) 5/ for performing the same service for her that he had performed for Ms. Runer. Ms. Schuetze wanted to pay Respondent his fee in advance instead of waiting until the homes had been built and rented. This was the first time that Respondent had received his fee in advance. The following day, on May 19, 1992, Respondent deposited the $15,120 into the operating account of American Real Estate which did not have an escrow account. Furthermore, Respondent had no intentions of opening an escrow account. However, the day before, on May 18, 1992, Respondent wrote two checks for $1,000 each to Miki S. Murray Realty (Murray Realty) for a deposit on two certain lots on behalf of Ms. Schuetze, leaving a balance of $13,120 from the monies given by her to Respondent. The deposits held the lots for Ms. Schuetze. On May 19, 1992, Murray Realty completed a document entitled "Reservation Deposit" for each of the lots. The document represented an acknowledgment of a deposit and the terms associated therewith. Murray Realty sold the lots and the homes to be constructed as a package deal. Each Reservation Deposit indicated, among other things, a lot deposit of $1,000 on a certain lot, the location of the lot, the purchase price of the house to be constructed on the lot, the representative for the builder/seller (Murray Realty), and the buyer who was indicated as Respondent. Also, each Reservation Deposit indicated that the deposit was an "earnest money deposit," that the contract was to be entered into on June 10, 1992, and that the deposit could be returned for any reason on or before June 10, 1992. Murray Realty required no further monies until after the signing of a contract for purchase from which construction draws would come from an account specifically setup for that purpose. This was not the first time that Respondent had entered into such a transaction with Murray Realty. Respondent used the same transaction for Ms. Runer. From on or about May 12, 1992, through on or about June 1, 1992, Respondent wrote checks from American Real Estate's operating account, totalling $10,403.01, from the remaining $13,120 given to Respondent by Ms. Schuetze. The expenditures were for Respondent's own use and benefit; none were associated with the services requested by Ms. Schuetze. On or about June 1, 1992, Respondent sent a completed contract for sale and purchase of the lots and homes and a blank buyer-broker contract, by express mail, to Ms. Schuetze for her signature. The contract for sale and purchase reflected that a "deposit" of $15,120 had been paid to American Real Estate, as seller, toward the purchase price and that the deposit was being held in "escrow." The blank buyer-broker agreement contained spaces for Respondent to insert an agreed upon fee but these were also left blank. Prior to sending these documents, Respondent had discussed the contracts with her and informed her that he was sending them to her. At the same time, on or about June 1, 1992, Ms. Schuetze wrote to Respondent requesting the return of her "deposit" of $15,120 within three days, indicating that she had decided not to sign a contract for the purchase of the homes. After she received the contracts, Ms. Schuetze returned them to Respondent unsigned. At no time prior to June 1, 1992, had Respondent presented to Ms. Schuetze for her signature a buyer-broker contract or a contract for sale and purchase. At no time pertinent hereto has Ms. Schuetze executed a buyer-broker contract or a contract for sale and purchase. Not having received a response to her letter of June 1, 1992, on or about June 8, 1992, Ms. Schuetze again made a demand by way of a letter for return of the $15,120 within three days. On or about June 11, 1992, at the request of Ms. Schuetze, Murray Realty returned her deposit of $2,000 on the two lots. At that time, Respondent had not contacted Murray Realty regarding her request, and he was unaware that Murray Realty had returned the deposit. Shortly thereafter, but also in the month of June 1992, Respondent agreed to return the $13,120, less the value of services he had already rendered, to Ms. Schuetze but requested additional time in which to so do since he had spent the money. She agreed to give Respondent additional time. On or about December 4, 1992, Respondent gave a statement to Petitioner in which he agreed to return, within 12 months, the $13,120 less 10 percent for the services that he believed that he had already rendered, leaving a balance of $11,808 to be returned. At the time of hearing on October 13, 1993, Respondent had failed to refund any of the money to Ms. Schuetze. Respondent has no history of disciplinary action.
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 II of the amended administrative complaint; and SUSPENDING the broker's license of Robert A. Schwartz for five years. Provided, however, that the duration of his suspension may be lessened upon the return to Ms. Schuetze of the $13,120. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of May 1994. ERROL H. POWELL 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 26th day of May 1994.
Findings Of Fact Respondent filed application for registration as a real estate salesman on June 24, 1974 and was issued a license pursuant to this application on October 25, 1974. At the time of the filing of the application and subsequent thereto, Respondent was employed by Florida Savings and Loan Services, Inc. and its predecessor company, Florida Informanagement Services, Inc. in the capacity of a real estate appraiser and head of the appraisal department for said company. On July 26, 1975 Respondent performed appraisal services on behalf of Central Development, Inc. to ascertain the fair market rental appraisal of 5 Pizza Huts. For this service his company, then Florida Informanagement Services, Inc. billed Central Development, Inc. $3,000. Respondent performed other appraisals during the period in question which were not specifically delineated at the hearing.
Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
Findings Of Fact Respondent, George May, at all times relevant thereto, was a licensed real estate broker-salesman, having been issued license number 0056693 by Petitioner, Department of Professional Regulation, in 1976 (Petitioner's Exhibit 1). On or about October 8, 1979, Respondent filed an application for licensure as a broker-salesman to associate himself with Lee Holliday, a registered real estate broker with offices at 6191 SW 45th Street, Davie, Florida (Petitioner's Exhibit 1). The application was signed by both May and Holliday on October 4, 1979, and received by the Department on October 8, 1979. Prior to that time, May's license had been in an inactive status for approximately eight months. May registered with Holliday with no intention of actively engaging in real estate transactions. He simply desired to keep his license active in the event other opportunities arose. May subsequently left Holliday some "two or three weeks" later. During his association with Holliday, neither May nor Holliday consummated any real estate transactions. In November, 1979, May became a salesman for Riken Realty, Inc., located at 1742 NE 163rd Street, North Miami Beach, Florida. The exact date was never disclosed. However, May was observed at Riken Realty by a Department investigator on or about November 15, 1979, and signed rental agreements on behalf of Riken shortly thereafter, which corroborate the approximate date of employment given by May. On November 13, 1979,May signed a Form 400.5 to transfer his registration to Riken Realty. This form is used to request a registration certificates for a number of categories, including "a change of broker or owner by a salesman or broker-salesman". A change of an employer by a salesman requires that both the salesman and the broker-employer execute the form. After May signed the form, he gave it the same day to Steve Mishken, the office manager. Mishken filled out a portion of the space where the broker is to sign, and then gave it to Gerald Rosen, the active broker of the firm. The date on which Mishken gave it to Rosen was not disclosed. Rosen eventually signed the form on December 11, 1979. The form itself reflects receipt by the Florida Real Estate Commission on December 11, 1979, and by the Board of Real Estate on January 11, 1980. 1/ However, the Department considers January 11, 1980, to be the official date on which the form was received. Rosen was unable to account for the four weeks that it took him to sign the form, or why it was apparently not mailed for several weeks thereafter. Mishken, who initially received the form, could not explain the reason for the delay. The standard practice followed by Riken Realty when processing a Form 400.5 was immediate execution of the form by the broker. The broker then assumed the responsibility of promptly submitting it to the Department. After becoming associated with Riken Realty, May was actively involved in both sales and rental transactions, and received compensation for his services. Riken Realty closed its offices in early 1980. At the direction of Steve Mishken, May became associated with National Home Realty, Inc., in Hollywood, Florida, in early February, 1980. 2/ The exact date was never disclosed. National's active broker was Gerald Rosen and its principal stockholder was Mishken. May claims he signed and gave a Form 400.5 to Mishken when he transferred to the firm. However, this was not corroborated by Mishken or Rosen, who testified at the hearing, and the Department has no record of any form being filed. On February 10, 1980, a Department investigator visited the offices of National Home Realty and observed May working in the capacity of a salesman. The investigator advised Rosen and Paul Katchmere, the office manager, that a transfer of registration for May would be required. Rosen was under the mistaken impression that a transfer was not needed between corporations owned and operated by the same principals. May subsequently left National two days later (February 12, 1980) to begin his own real estate firm and the form was never executed. On February 15, 1980, May executed a Form 400.5 requesting that his registration be transferred to Real Estate Merchandisers, Inc., located at 2300 West Oakland Park Boulevard, Fort Lauderdale, Florida, a firm which May owns and operates. He has continued working as its active broker since that time. The records of the Department reflect the form was received on March 24, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of violating Subsections 475.42(1)(a) and (b), Florida Statutes, and Rule 21V-6.06, Florida Administrative Code, for failing to register as an employee of National Home Realty, Inc. in February, 1980. It is further RECOMMENDED that Respondent to be given a private reprimand for the aforesaid violations. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1981. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of 1981.
Findings Of Fact The Respondent, Shirley Holland, a licensed real estate salesman, was convicted of the crime charged in the administrative complaint by entering a plea of nolo contendere in the Dade County Circuit Court, Miami, Florida, on September 30, 1975. Evidence of this plea :as admitted over the objections of counsel for the Respondent and it would be appropriate now to discuss the admissibility of those documents. There is no question that evidence of a plea of "no contest" is inadmissible in a civil proceeding to prove truth of the charge; however, the above proceeding was conducted under the authority of Chapter 120 Florida Statutes. Section 120.58(1), F.S., states: "Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida." Considering that the plea of nolo contendere is tantamount to a plea of guilt and that rules of evidence for an administrative proceeding are somewhat less stringent than those in the courts of this State, it is the opinion of the under signed Hearing Officer that, under the circumstances of this case, evidence of a plea of "no contest" or nolo contendere should be admitted to consider whether the holder of a professional license issued by the State of Florida should be disciplined. Licensing agencies of the State have an obligation to maintain high standards in a licensed occupation and should not be prevented from imposing standards of responsibility through evidence which appears to be unequivocal. Although the Respondent testified and presented other evidence of his reasons for having plead "no contest" to the charge and to the high reputation he enjoys in the community, such testimony is insufficient to rebut the conviction of the crime.
The Issue The issue is whether Respondent should grant Petitioner a real estate broker license.
Findings Of Fact Mr. Mouflouze has held real estate licenses in New Hampshire and Maine for about 28 years. He lives in Portsmouth, New Hampshire, which abuts the Maine border. It was because he lives in close proximity to Maine, that he maintained a license there, also. The Commission, pursuant to Chapter 475, regulates real estate brokers and sales associates. The Commission accomplishes this regulation through the Division of Real Estate of the Department of Business and Professional Regulation. Mr. Mouflouze currently holds a broker's and salesperson's license in New Hampshire. He has not experienced any disciplinary action in that state. These licenses have an expiration date of April 1, 2008. From 1982 until 2004, Mr. Mouflouze held a designated broker's license in Maine. Prior to February 19, 2004, Mr. Mouflouze failed to complete the required hours of continuing education in Maine, according to the Maine Real Estate Commission (Maine Commission). He disagreed with this conclusion. He attended a hearing before the Maine Commission and after the hearing the Maine Commission ordered him to pay a fine of $900 and to complete six hours of continuing education. Mr. Mouflouze refused to pay the fine or otherwise obey the order. As a result, the Maine Commission had another hearing in his case on August 19, 2004, based on his failure to comply with its order. As a result of that hearing, his designated broker license was revoked effective the date of the hearing. As of the date of the hearing in this case, his license in Maine had not been reinstated. Mr. Mouflouze is a person who is regarded as a highly qualified and ethical real estate broker. He is reputed to be honest and hard-working.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission deny William Peter Mouflouze's application for licensure as a real estate broker. DONE AND ENTERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 October, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William Peter Mouflouze Bill Mouflouze Real Estate Post Office Box 6541 Portsmouth, New Hampshire 03802-6541 Nancy B. Hogan, Chairman Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
