Findings Of Fact The Respondent, Gary R. Berkson, is a licensed real estate salesman, holding license No. 034697. From September 27, 1980, until May of 1983, the Respondent as a salesman working as an independent contractor for Act Now Real Estate, Inc., a corporate broker whose active qualifying brokers and officers were Robert F. Picheny and Thelma R. Sarkas. Robert F. Picheny was subpoenaed and requested to bring with him the records of Act Now Real Estate, Inc., showing the disbursement of commissions to the Respondent. These records did not contain any entries relating to rental transactions involving the persons named in the complaint as having paid commissions to the Respondent. The only lease offered and received in evidence was between Samuel Schnur, as lessor, and lessees named Davis and Johnston. Samuel Schnur, presented as one of the Petitioner's witnesses, did not pay a rental commission to the Respondent in connection with this lease. Another lease transaction where the Respondent was alleged to have received rental commissions was between Sami Elmasri, as landlord, and Donald Bauerle, as tenant. Sami Elmasri, presented as another of the Petitioner's witnesses, testified that he paid a $300 commission, but that this was not paid to the Respondent. This commission was paid to another salesman, Wendy Corman. The final witness for the Petitioner, except for the Respondent, was Wendy Corman. She showed Mr. Elmasri's property to persons wishing to rent through a lead given by the Respondent. She was paid a $300 commission by Mr. Elmasri. The Respondent did not receive any of this commission. The Petitioner's final witness was the Respondent, who testified that he never received a commission for rental property. The only money he received in connection with rental properties was a management fee he received on some properties owned by Richard Jacobson. This fee was in payment for management services consisting of arranging for repairs to the properties such as painting it, repairs to the plumbing and the garage door, and being available to tenants with problems in the absence of the owner. These management fees continued even after the Respondent left Act Now Real Estate, Inc., until Mr. Jacobson assumed the management duties himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed against the Respondent, Gary R. Berkson, be DISMISSED. This Recommended Order entered this 13th day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 13th day of June, 1984.
Findings Of Fact On January 23, 1984, the Secretary of the Department of professional Regulation (hereinafter "Department") signed an Administrative Complaint, count one of which alleges, in pertinent part: Respondents in their capacity as real estate brokers employed Doris H. Swanton as a real estate broker and office manager from approximately October 20, 1980 to April 18, 1982. On or about April 8, 1982 to the present, Doris H. Swanton has made numerous and repeated demands upon Respondents for the payment of a share of the compensation received by Respondent and earned by Doris H. Swanton while in the employ of the Respondents in the amount totalling approximately $7,815.52 involving a number of brokerage transactions. A copy of a list reflecting the transactions, dates and amounts owing is attached as Petitioner's Exhibit 1. Since April 8, 1982, Respondents have failed, refused and neglected to give a reasonable accounting or to pay Doris H. Swanton the $7,815.52 or any part thereof notwithstanding the demands for same made upon Respondents by Doris H. Swanton, the person entitled to said money. That by reason of the foregoing, Respondents are guilty of having failed to account and deliver a share of a real estate commission and other compensation to Doris H. Swanton in violation of Subsection 475.25(1)(d), Florida Statutes. The Administrative Complaint signed on January 23, 1984, does not contain an allegation that there has been a judicial determination that Respondents are not entitled to retain the property claimed by Doris H. Swanton. On February 22, 1984, the Respondents served an Answer and Written Defenses in which the Respondents, inter alia, admit the first of the paragraphs quoted in finding number 1, above, and deny the other three paragraphs quoted above. The Respondents' Answer and Written Defenses also sets forth a detailed itemization of Respondents' reasons for contending that Doris H. Swanton is not entitled to the full amount of a single one of the twelve commissions she claims are due her from the Respondents. ANALYSIS OF THE ISSUES The thesis of the Motion to Dismiss filed by Respondents is that a broker cannot be disciplined for failure to account for and deliver non-escrowed property until there has been a judicial determination that the broker is not entitled to retain the property in dispute. The case of Golub v. Department of Professional Regulation, F.R.E.C., 9 FLW 460 (Fla. 5th DCA, Feb. 23, 1984), appears to be exactly on point. There a majority of the court concluded: Once there is a judicial determination that a broker is not entitled to retain non-escrowed property then this statute [475.25(1)(d)] is authority to discipline the broker for a failure to account and deliver the property to any person, including a salesman, who is entitled to its prossession. Corollary to the quoted language from Golub is the conclusion that until there is a judicial determination that a broker is not entitled to retain non- escrowed property, the statute does not authorize discipline of a broker for failure toe account and deliver the property. In other words, when the property in dispute is non-escrowed property, a judicial determination that a broker is not entitled to retain the property is an indispensable prerequisite to the establishment of a violation of Section 475.25(1)(d), Florida Statutes, on the basis of a failure to account for or deliver such property. Accordingly, until a court determines that the Respondents in this case are not entitled to retain the property in dispute in this case, it cannot be established that Respondents have violated Section 475.25(1)(d), Florida Statutes. And inasmuch as the Administrative Complaint fails to allege that there has been any such judicial determination, the Administrative Complaint is fatally deficient.
Recommendation Based on the foregoing Findings of Fact, Analysis of the Issues, and Conclusions of Law, I recommend that the Florida Real Estate Commission issue a Final Order in this case dismissing the Administrative Complaint without prejudice to the refiling of an Administrative Complaint against these Respondents if and when a court determines that the Respondents are not entitled to the property claimed by Doris H. Swanton. DONE and ORDERED this 3rd day of July, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1984. COPIES FURNISHED: Robert W. Lee, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 G. Michael Keenan, Esquire Post Office Box 1900 Fort Lauderdale, Florida 33302 Mr. Harold R. Huff, Director Division of Real Estate Legal Section 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact At all times material to this proceeding, the Respondent Bruce R. Dowell was licensed as a real estate salesman in the State of Florida and presently holds license number 0022658. The Respondent is employed as a real estate salesman by Allen Pacetti, a licensed real estate broker doing business as Pacetti Realty Company, 49 Cordova Street, St. Augustine, Florida 32084. Mr. Pacetti has a policy within his office of permitting his real estate salespersons to assist members of their immediate families with real estate transactions without involving the office or notifying the broker. Accordingly, the Respondent did not inform Mr. Pacetti of his efforts to rent his daughter's home. The Respondent's daughter and son-in-law, Mr. and Mrs. William Kasperski, owned a residence next door to the Respondent at 202 Coquina Avenue, St. Augustine, Florida, which they rented while they were out of the state for extended periods of time. The home would be shown to prospective tenants by either Mr. Dowell, his wife or other family members depending upon who was home when prospective tenants arrived. The rental property had been leased to at least two other tenants prior to the incident which prompted the instant complaint. In March, 1980, the Respondent placed an ad in the general classified section of the St. Augustine Record advertising the Kasperski home for rent. The advertisement was seen by a co-worker of Mr. and Mrs. G. David Petty who inspected the home and recommended it to them. Mr. Petty and his wife Frances Petty subsequently examined the home and orally agreed to a monthly rental of $265. Neither the Petty nor the Respondent requested or offered to sign a written lease. The Respondent informed the Petty that the owner was not expected to return to Florida for at least a year. The Pettys made an initial payment to the Respondent of $85 which represented a pro-rata share of the March rent. The Respondent would collect the checks from the Pettys and forward them to the Kasperskies who at the time were residing in Pennsylvania. The Respondent did not receive a fee, commission or any other renumeration in return for renting his daughter's home. During the course of the Petty three-month occupancy, the Respondent became concerned over the condition of the home and alterations which were made by the Pettys without prior authorization from the owners. The Respondent conveyed his concerns over the condition of the property to his son-in-law who in turn contacted an attorney in Pennsylvania, Louis D. Poulette. Mr. Poulette informed the Pettys by letter that the lease was terminated by the owners effective July 31, 1980. The Pettys vacated on July 15, 1980, and were refunded the balance of their rent payment for July, 1980. On August 1, 1980, the Respondent readvertised the property and it was rented in September, 1980 for $265 per month.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Real Estate, enter a final order dismissing the Administrative Complaint filed against the Respondent, Bruce R. Dowell. DONE and ORDERED this day 3 of February, 1982, in Tallahassee, Florida. SHARYN L.SMITH 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 3rd day of February, 1982. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Robert F. Spohrer, Esquire ZISSER ROBISON SPOHRER WILNER & HARRIS, P.A. 303 Liberty Street Jacksonville, Florida 32202 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all times material hereto, Respondent was a licensed real estate salesman having been issued license number 0413725. On November 8, 1983 Respondent submitted a Request for Active Salesman's License indicating the name of the firm at which he would be employed as Corporate Investments of Florida, Inc., d/b/a Corporate Investment Business Brokers and his broker as Lynne Levy. Respondent worked as a salesman with Lynne Levy as his broker until he was terminated by her on or about May 22, 1984. Respondent testified he was not told of his termination until 4:00 p.m. on May 25, 1984 at which time Lynne Levy also resigned as broker with Corporate Investments of Florida, Inc. Respondent's license was cancelled on May 29, 1984 due to the fact that his license was no longer placed with a broker. From May 29 until July 9, 1984 Respondent's license was not placed with a broker and was therefore in a "cancelled" status. On July 9, 1984 Respondent's license was reactivated since he had been employed by another real estate broker. On or about June 1, 1984 Respondent attempted to have Mr. Bert Malone register as broker for Corporate Investments of Florida, Inc., d/b/a Corporate Investment Business Brokers, but that application was never accepted by the Florida Real Estate Commission due to Respondent's failure to submit information requested by the Commission, including a copy of the corporation's minutes when Lynne Levy's resignation was accepted and Respondent was elected an officer or director. Respondent was co-owner with Robert L. Levy, Lynne Levy's husband, of Corporate Investments of Florida, Inc., d/b/a Corporate Investment Business Brokers. Lynne Levy was President, Vice President, Secretary and Treasurer of the Corporation, as well as its broker. Robert L. Levy and Respondent each owned 50% of the corporation, but Respondent held a 51% voting interest to Levy's 49%. Respondent obtained his franchise on June 17, 1983 to open an office in Florida from Corporate Investment Business Brokers, Inc., a franchisor. Respondent contributed the franchise to the corporation he formed with Levy and agreed to keep the franchise current. The franchisor terminated its franchise agreement with Respondent on May 17, 1984 due to Respondent's failure to make payments due thereunder. On June 12, 1984 the franchisor notified Respondent that it would not reconsider the termination of the franchise. On or about May 30, 1984 Respondent attended the closing of a real estate transaction between Fred Hage, seller, and Frank De Santo, buyer. This was while Respondent's license was cancelled and inoperative. The property had been listed by Respondent and he received a check for $9000 made out to Corporate Investments of Florida, Inc., which represented the broker's commission. On the same day Respondent opened a checking account at Barnett Bank of Central Florida, Longwood Office, and deposited the $9000 commission check in that account without the knowledge or consent of Lynne Levy, his former registered employing broker. On August 16, 1984 Respondent disbursed $3750 to Robert L. Levy, Lynne Levy's husband, from this checking account as the co-partner's share of the $9000 commission. Respondent had obtained the listing agreement from Fred Hage on this property on March 14, 1984 at which time Respondent and Hage agreed to a $6000 commission, or 12% of the total price upon consummation of a sale. Or or about April 4, 1984 Hage signed another listing agreement which reflected a $9000 commission. When the transaction closed on or about May 30, Respondent collected the $9000 commission. Hage signed the closing statement and the purchase contract for this transaction, both of which disclosed the $9000 commission. Hage did not question the commission amount at the closing but waited until June 6, 1984 to raise his objection in a letter to Lynne Levy. On or about May 21, 1984 Respondent discussed with Paul Russell, II, the acquisition of a 50% partnership interest in his real estate franchise in the central Florida area for $50,000. Respondent admits that he was informed on May 17, 1984 that his franchise had been terminated and this termination was reconfirmed on June 12, 1984. Respondent did not inform Russell during their discussions that his franchise had already been terminated, but Russell decided not to go through with the deal. On or about June 2, 1984 while his license was cancelled and inoperative, Respondent received a check for $400 from Kenneth L. and Mary Lou Welker which represented one- half of the appraisal cost on certain property they were selling through Respondent as the selling agent. Respondent represented that he immediately ordered the appraisal as the Welkers requested, but Mrs. Welker learned that it had not been ordered by June 5 and stopped payment on the check.
Conclusions The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), Florida Statutes. In pertinent part Petitioner contends that Respondent is subject to disciplinary action for having been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing or breach of trust in a business transaction in violation of Section 475.25(1)(b) having failed to account for or deliver a share of a real estate commission to a person entitled thereto or to notify the Florida Real Estate Commission concerning doubts or conflicting demands being placed upon such funds as required by Section 475.25(1)(d): and having failed to immediately place with his registered broker money entrusted to him by persons dealing with him as a real estate salesman in violation of Section 475.25(1)(k), F.S. Petitioner also urges that Respondent violated Sections 475.42(1)(a) and (b), F.S., by operating as a broker or real estate salesman without a valid and current license, or for a person not registered as his employer. Finally, it is alleged that Respondent violated Section 475.42(1)(d), F.S. which states, in part: No salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer: . . . The evidence clearly and convincingly establishes that between May 29 and July 9, 1984, Respondent did not have a current active salesman's license due to his termination by his broker, Lynne Levy. Yet during this time when his license was inoperative and cancelled, Respondent engaged in real estate transactions with Fred Hage on May 30, and with Kenneth L. and Mary Lou Welker on June 2. In each transaction Respondent collected money from these persons without the express consent of an employing broker since Respondent's license had been cancelled and was not placed with an employing broker at the time. Respondent did not immediately place these moneys which he received while acting as a salesman with a registered broker. Thus, Respondent violated Sections 475.42(1)(d) and 475.25(1)(k) on these two occasions. His actions on these occasions also constituted violations of Sections 475.42(1)(a) and (b) since he was operating during these real estate transactions as a salesman without a current valid license and without a registered employing broker. Respondent also violated Section 475.25(1)(d) by improperly placing the $9000 commission he received from Fred Hage in a checking account he opened on the same day he received the commission check. At the time he was not properly licensed to engage in real estate transactions and receive commissions, and he should reasonably have foreseen that doubts would arise and conflicting claims would be made for these funds, as in fact they were. Under these circumstances, Respondent was required to notify the Florida Real Estate Commission of such doubts or conflicting demands, which he never formally did. Respondent did subsequently resolve the conflicting demand on these funds with the disbursement $3750 to Robert L. Levy on August 16, 1984, but his technical violation of Section 475.25(1)(d) by failing to formally notify the Commission remains. The evidence presented at the hearing does not establish clearly or convincingly that Respondent violated Sections 475.25(1)(b), F.S. It cannot be concluded that Respondent dealt fraudulently or dishonestly with Fred Hage when he collected a $9000 commission from the transaction on May 30. Although Hage had previously signed a listing agreement with Respondent that provided for a lesser commission, Hage did sign a second listing agreement on April 4 which called for the $9000 commission. There is no evidence of fraud or misrepresentation in the execution of this second agreement. In fact, Hage specifically acknowledged the $9000 commission at closing by signing the closing statement and the purchase contract, both of which disclosed the commission amount. Hage did not object to the commission until June 6, one week after the closing and two months after he signed the second listing agreement with Respondent which provided for this commission. Respondent's discussions with Paul Russell, II, about acquiring an interest in his franchise do not constitute a violation of Chapter 475. Although at the time of these discussions on May 21 Respondent had been notified by his franchisor of the termination of his franchise, the franchisor did not reconfirm this termination until June 12. By this time Russell had already decided not to go through with the deal or pursue discussions with Respondent. Russell was not harmed by these discussions and the simple fact that these discussions took place prior to the reconfirmation of the franchise's termination does not constitute a violation of Section 475.25(1)(b). In summary, it has been clearly and convincingly established that Respondent violated Sections 475.42(1)(a)(b) and (d) and 475.25(1)(k) in his dealings with Fred Hage and the Welkers on May 30 and June 2, 1984, and also that he violated Section 475.25(1)(d) in his handling of the $9000 commission he received from Hage. However, no violation of Section 475.25(1)(b) has been established. The violations in this case arise from two transactions occurring within a three day period. There is no evidence that Respondent engaged in a recurring course of conduct which would justify the imposition of the penalty of revocation of his license under the circumstances as established herein. Pauline v. Borer, 274 So. 2d 1 (Fla. 1973) Kopf v. Florida Real Estate Commission, 379 So. 2d 1327 (Fla. 3rd DCA 1980). Therefore, a reasonable suspension of Respondent's license is appropriate in this case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued suspending Respondent's license for a period of ninety (90) days. DONE and ENTERED this 17th day of July, 1985 at Tallahassee, Florida. DONALD D. CONN 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 17th day of July, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Wallace E. Hunter 214 East Hornbeam Drive Longwood, Florida 32779 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the respondent's license as a real estate broker should be revoked, suspended, or otherwise disciplined because respondent entered a plea of guilty to the offense of unlawful compensation.
Findings Of Fact Respondent is and was at all times pertinent to this proceeding a licensed real estate broker with the State of Florida, holding license number 0166810. On June 18, 1982, an information was filed in the circuit court charging that between the dates of December 10, 1980 and December 1, 1981, the respondent "did corruptly request, solicit, accept or agree to accept money not authorized by law for past, present, or future performance, to wit: by sending business to Don's Alignment Shop, which said ALBERT RONALD HURLBERT did represent as having been within his official discretion in violation of a public duty or in performance of a public duty, in violation of Section 838.016, Florida Statutes." On July 16, 1982, the respondent appeared before Judge Thomas Oakley and entered a plea of guilty to the offense of unlawful compensation as charged in the information. Adjudication of guilt was withheld and respondent was placed on probation for a period of four years. Respondent was given an early release from probation on August 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter an order finding that the respondent has been convicted or found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing and revoking the respondent's real estate license. DONE and ENTERED this 27th day of February, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Mr. Albert R. Hurlbert c/o Hurlbert Realty 8117 Lakeland Street Jacksonville, Florida 32205 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32303 Howard Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802
Findings Of Fact Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted. Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence. Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details. Paragraph 6: Rejected as contrary to the greater weight of the evidence. Paragraph 7: Accepted in substance, with additional findings for clarity and completeness. Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence. Findings Proposed by Respondent: All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent. Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details. Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS 816 BROAD STREET JACKSONVILLE, FLORIDA 32202 DARLENE F. KELLER, EXECUTIVE DIRECTOR DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact While in Puerto Rico, in 1971, the Respondent was charged with violation of Article 29, Drug and Narcotics Law, which charges were brought in the Superior Court of Puerto Rico, Court of Aguadilla. These case numbers were information numbers, G-71-54 and G-71-55. These charges were made on March 9, 1971 for alleged offenses which were committed on February 16, 1971. The information which shows these case numbers can be found in Petitioner's Exhibit "D", admitted into evidence. On March 10, 1971, the Respondent was found guilty of the offenses charged in cases G-71-54 and G-71-55. The record shows that in case no. G-71-54, the Respondent was convicted by a judgement entered on March 10, 1971. On April 14, 1971, in case number G-71-54 and case number G-71-55 the Superior Court, of Puerto Rico, Court of Aguadilla, sentenced the Respondent to a term of five to eight years in prison by confinement at hard labor, which sentences were suspended. By such suspension, the Respondent was committed to the legal custody of the court until the expiration of the maximum term of the sentence under certain general conditions for the Respondent's conduct, and was given a special condition that he contact the Florida Parole and Probation Commission, District Office, at Room 180, Courthouse, Ft. Lauderdale, Florida. The judgement in case number G-71-54 and the conditions of sentence may be found in Petitioner's Exhibit "F", admitted into evidence. The judgement in case number G-71-55 may be found in Petitioner's Exhibit "E" admitted into evidence. On September 16, 1973, the Respondent completed an application for registration as a real estate salesman with the Florida Real Estate Commission, which application was completed under oath. Within that application for registration is found a question number "9". This question reads as follows: "9. Have you ever been arrested for or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgement has been reversed or set aside or not, or pardon or parole granted?" to which the Respondent replied, "yes". Question nine further stated, "if yes state details in full", to which the Respondent replied, "(see attached statement)". The attachment spoken of is found in the Petitioner's Exhibit "C", and this attachment sets forth the Respondent's explanation of his answer to the initial part of question nine. Subsequent to the completion of the form the Respondent was registered with the Florida Real Estate Commission as a real estate salesman, from February 21, 1974 through March 31, 1975. From May 8, 1975, up to, and including March 31, 1975, the Respondent has been accepted as a registrant, non-active real estate salesman.
Recommendation It is recommended that the Respondent be released from accountability under the charge found in the subject administrative complaint. DONE and ENTERED this 20th day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Charles Lawrence Ross 3789 Southwest 41st Street Hollywood, Florida 33023
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 1 hereby recommend: 1. That the Defendant, James Rosati, Jr., license to practice as a registered real estate broker be suspended for a period of one year. Recommended this 8th day of February, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 James Rosati, Jr. 109 Harbor View Lane Largo, Florida 33540
