Findings Of Fact Based upon the documentary evidence and the testimony taken at the hearing, the following relevant facts are found: At all times material hereto, Respondents were licensed by the Florida Real Estate Commission and subject to the jurisdiction of the Department of Professional Regulation. Their license numbers are 0151878 and 0195386, respectively. By previous order of the Board, the license of Respondent Gerald Rosen has been revoked. At all times material herein, Riken Realty, Inc., was a licensed corporate broker and doing business at 1742 N.E. 163rd Street, North Miami Beach, Florida 33162. Respondent Mishkin was a salesman associated with Riken Realty, Inc., and was the principal owner of said corporation. At all times material herein, Riken Realty, Inc., had Its escrow account at the Intercontinental Bank, North Miami branch, bearing escrow account number 401-001039. Respondent Mishkin was an authorized signatory on this account. On or about February 28, 1980, Victor Rosenbloom of Clifton, New Jersey, entered into an oral sublease agreement for the period commencing March 1, 1980 through April of 1980 for premises known as Apartment C 307, Summerwinds Apartment Complex, 494 N.W. 165th Street, North Miami Beach, Florida, at $900 a month. The total rent of $1,800 was paid by Rosenbloom by Traveler's Checks on February 28, 1980 to Riken Realty, Inc. Further, Rosenbloom gave to Riken Realty on March 1, 1980 his Traveler's Checks in the amount of $900 as security damage deposit on said apartment. The lease was negotiated by an associate of Riken Realty, Inc., which had a rental listing on said premises. At all times material herein, Respondent Mishkin was lessee of said premises, subletting to Rosenbloom. Rosenbloom vacated said premises on April 29, 1980, on which day Respondent Mishkin inspected the premises and found no damages; as a result, no deductions were to be made on said $900 security damage deposit. Rosenbloom requested Mishkin to refund said deposit in full, Respondent Mishkin agreed to said refund and to this effect issued his written statement that a refund would be made by May 15, 1980. On or about June 14, 1980, Respondent Mishkin issued a refund check to Rosenbloom in the amount of $811.00 on the escrow account of Riken Realty, Inc., bearing check number 1765 and dated June 14, 1980, to the order of Vic Rosenbloom. The stated check was not honored upon presentation for the reason that the account had been closed on June 17, 1980. Further, when Respondent Mishkin issued said check the escrow balance was seventy-six cents, which balance occurred on or about May 21, 1980 and continued until the account was closed on June 17, 1980. The stated check for $811.00 was, in fact, insufficient refund since the refund should have been for the full amount of the deposit, specifically, $900. Rosenbloom individually and by and through his attorney, made repeated demands both orally and in writing for a full refund of the deposit. Respondent eventually repaid Rosenbloom $811.00 but failed to pay the service charge incurred by the previously transmitted dishonored check and failed to render an accounting for the deductions made from the $900 security deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED: That Riken Realty, Inc. and Steve Mishkin be found guilty of violating Section 475.25(1)(b) and (d), Florida Statutes, and their licenses be suspended for a period of six (6) months. Since Respondent Gerald Rosen's license has already been revoked, the charges against him should be dismissed. DONE and ORDERED this 7th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 7th day of October, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Bldg. 2715 East Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Brian Hal Leslie, Esquire 1795 North East 164th Street North Miami Beach, Florida 33160 Riken Realty, Inc. 1742 North East 163rd Street North Miami Beach, Florida 33162 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the state of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is now and was at all times material hereto a licensed real estate broker in the state of Florida having been issued license number 0223671 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Sunshine Express Realty, 300 S. Pine Road 262, Fort Lauderdale, Florida 33324. On or about November 22, 1983, an information was filed in the Circuit Court of the 17th Judicial Circuit, Broward County, Florida, charging Respondent with one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes; and two counts of grand theft in the first degree, in violation of Sections 812.014(1)(a), 812.014(1)(b), and 812.014(2)(a), Florida Statutes. On March 27, 1985, a verdict was rendered which found Respondent guilty of one count of insurance fraud by false or fraudulent claim, and two counts of grand theft in the first degree. The Court adjudged Respondent guilty of one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes, and two counts of grand theft in the first degree in violation of Section 812.014(1)(a), Florida Statutes. The Court thereupon sentenced Respondent to a prison term of eighteen months in state prison to be followed by a term of five years of probation. The Respondent does not appear to be possessed of the mental skills necessary to be the master-mind behind a complex fraud scheme, nor has he demonstrated a tendency to be devious, shrewd, calculating, or cunning. To the contrary, the Respondent appears to be gullible and vulnerable to being taken advantage of, which tendencies may account for the circumstances which led to his conviction. The Respondent enjoys an excellent reputation in spite of his criminal convictions and probably would not be a danger to the real estate community if he were allowed to keep his license. The quality of the Respondent's reputation is reflected by the fact that in spite of his convictions, he is currently employed in another broker's real estate company and holds the positions of vice president and head of the commercial department. With the exception of the incident which led to his convictions, the Respondent appears to have demonstrated a high degree of honesty and integrity in his personal and business dealings. The Respondent has excellent teaching skills in the field of real estate and is probably one of the better technicians in the field of real estate.
Recommendation Based upon the resolution of all disputed issues of fact and law by the stipulation of the parties to this proceeding, which includes the agreed penalty as set forth above, it is RECOMMENDED that the Board of Real Estate (now Florida Real Estate Commission) adopt the stipulation of the parties, together with the agreed penalty, in its final order to be entered herein. THIS RECOMMENDED ORDER entered this 26th day of May, 1982, in Tallahassee, Florida. COPIES FURNISHED: James Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Eric A. Lanigan, Esquire 1214 East Robinson Street Orlando, Florida 32801 Fred Wilsen, Esquire 130 North Monroe Street Tallahassee, Florida 32301 WILLIAM B. THOMAS, 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 May, 1982. Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times relevant hereto, Jon A. McVety was registered with the Florida Real Estate Commission as a salesman affiliated with Lee County Realty, Inc., a corporate broker. Frederick C. Huth was the qualifying broker for Lee County Realty, Inc. On March 26, 1986, Frederick C. Huth entered into a contract to purchase a residence in Fort Myers Beach from Larry and June Hildreth, the owners of the residence. The contract provided for a deposit of $500 to be held in escrow by Lee County Realty, Inc., and was contingent upon the buyer, Huth, obtaining a firm commitment for a first mortgage loan within 30 days for $37,000 with interest at 11 percent and payments amortized over a 30-year period. (Exhibit 5) For his $500 down payment, Huth, unbeknownst to the sellers, signed a promissory note for $500. Huth had formerly owned and operated a motel on Fort Myers Beach which went bankrupt. Huth called several lending institutions to obtain financing pursuant to the contract, but when he disclosed his bankruptcy, he was disapproved. He never submitted a formal application for a loan. By letter dated April 23, 1986, Huth advised the Hildreths that he was unable to obtain financing pursuant to the contract and would be unable to close the deal. At this time, Huth made no reference to his deposit. Between March 26 and Huth's resignation, Huth showed McVety the promissory note he had signed. In response to the question asking if he knew what McVety did with the note, Huth answered (TR p. 12): Well, we couldn't put a note in an escrow account so we really didn't know what to do with it, to tell you the truth. So we put it in his desk drawer, as I remember. With regard to disposition of the promissory note, Huth later testified at TR p. 26, "I think I--my words were something to the effect, I don't know what to do with this. Would you like to stick it in your drawer?" By letter to McVety dated April 22, 1986, which was not received by McVety until April 30, Huth resigned as broker for Lee County Realty, Inc., and the company ceased doing business until a new qualifying broker was obtained. At Huth's request and upon receipt of Huth's resignation, McVety returned the promissory note to Buth. Huth advised McVety that he had been unable to obtain financing for the purchase and, before any other demand was made, McVety returned the promissory note to Huth. Prior to his resignation, Huth had given McVety no other instructions regarding the promissory note, nor had he made McVety aware of the contract between him and Hildreth. Subsequent to Huth's departure, a certified letter addressed to Huth at Lee County Realty from Hildreth, dated May 3, 1986, was received and opened by McVety (Exhibit 7). This letter demanded the $500 down payment on the contract be forfeited and paid to the sellers. At this time the promissory note was no longer in the possession of McVety or Lee County Realty. By letter dated May 7, 1986 (Exhibit 8), McVety, as registered owner of Lee County Realty, Inc., responded to Hildreth that the $500 deposit had been returned to Huth when the transaction did not close, that Huth was no longer associated with Lee County Realty, and that further inquiry should be addressed to Huth at the latter's residence. When the $500 deposit was not forwarded, June Hildreth apparently filed a formal complaint with the Real Estate Commission as she had threatened to do in her letter of May 3, 1986 (Exhibit 7). Following an investigation, Huth voluntarily surrendered his license for revocation and on August 25, 1986, a final order was entered revoking Huth's license as a broker (Exhibit 10). This action did not result in Hildreth receiving the $500 deposit she had demanded and no evidence was presented regarding any action taken to have this $500 given to her. However, on September 23, 1986, these charges against McVety were signed, they were filed on October 1, 1986, and these proceedings commenced. McVety's only connection with the controversy between Huth and Hildreth is that at the time the contract was signed, he owned all of the stock in Lee County Realty and he wrote the Hildreths one letter advising them Huth was no longer associated with Lee County Realty. The evidence is uncontradicted that McVety was unaware of the transaction until Huth resigned as broker and the real estate business was forced to close until a new qualifying broker was obtained. That this business was closed is confirmed by Hildreth's testimony that when she called the realty office after Huth's departure, only an answering machine responded with a recorded message. While he was active broker for Lee County Realty, Inc., Huth was also president and secretary of the company (Exhibit 2). No evidence was submitted suggesting that Huth was other than the chief operating officer of the company while he served as active broker, that McVety had knowledge of the contract (Exhibit 5) before Huth's resignation, or even saw a copy of this contract before receiving a copy attached to the Administrative Complaint in October 1986.
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Respondent, Eduardo A. Cardounel (Cardounel), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0013037. Cardounel was the owner and sole qualifying broker for Respondent, Alexena Realty, Inc., a Florida corporation, registered as a real estate broker, license No. 0000851. In 1981 the Hamptons Development Corporation of Dade had under construction a condominium development in North Miami Beach, Florida, to be known as the Hamptons. In August 1981 Cardounel introduced Harold and Amparo Carvajal and Ulpiano and Maria Barona to the Hamptons project, and represented that he was the broker for the development and that these condominiums could be a good investment for them. Respondents concede they acted as agents for the Carvajals and Baronas at all times material to these proceedings. The Carvajals and Baronas each decided to purchase two units at the Hamptons. To guarantee the reservation of the units they had selected, they were required to place a small deposit and by December 31, 1981, have on deposit with the Hamptons a total of 10 percent of the purchase price of each unit. Dr. Carvajal left $4,000 with Cardounel, and Mr. Barona left $7,500, for the reservations deposits. The Carvajals and Baronas are residents of Columbia, South America. American dollars are not readily available, and the transfer of funds out of that country is not an easy task. Accordingly, the Carvajals and Baronas had to make arrangements to ensure that any funds which might be required to effect their purchases were available in the United States as those sums became due. The manner in which monies were delivered to Cardounel was, therefore, quite natural and necessary under the circumstances. On December 31, 1981, in Columbia, South America, Cardounel personally delivered four purchase and sale agreements for the Hamptons units to the Carvajals and Baronas for execution. The Carvajals executed agreements to purchase Units 905 and 1503, for $197,000 and $216,000, respectively. The Baronas executed agreements to purchase Units 605 and 1405 for $194,000 and $201,000, respectively. These agreements provided that the purchase price be paid as follows: Ten percent upon execution of the agreement, An additional 5 percent when the slab was poured on the floor on which the unit lies, An additional 5 percent when the slab was poured on the main roof, and The balance at time of closing. Prior to execution of the agreements, the Carvajals and Baronas had made arrangements to have those monies available in the United States. On November 9, 1981, Dr. Carvajal delivered an additional $37,300 to Cardounel for his initial 10 percent deposit. These monies, together with the $4,000 already on deposit, totaled the 10 percent deposit due for Units 905 and 1503. In September 1981 Mr. Barona delivered an additional $30,000 to Cardounel toward the initial 10 percent deposit that would be due on his units. Mr. Barona instructed Cardounel to place these funds in a "terminal deposit," a certificate of deposit, earning interest until the monies were due. 1/ On December 31, 1981, upon execution of the agreements, Mr. Barona delivered an additional $2,000 to Cardounel, which sum, together with the prior sums, totaled the 10 percent deposits due on his units. The record is unclear as to when the 10 percent deposit monies the Carvajals and Baronas had entrusted to Cardounel were paid to the Hamptons. They were paid, however. Initially the parties anticipated that the first additional 5 percent deposit would be due the latter part of 1982, and the second additional deposit in June 1983. Accordingly, in April 1982, Dr. Carvajal delivered $50,000 to Cardounel with instructions that the monies be invested in an interest-bearing account pending payment of the additional 5 percent deposits, and with the correspondent understanding that these monies would be available to pay the deposits as they came due. Mr. Barona transferred $30,000 to Cardounel, $10,000 in September 1982 and $20,000 in October 1982, to be applied toward the 5 percent additional deposits as they became due. Mr. Barona, consistent with his prior instructions, directed that these monies be held in a certificate of deposit, earning interest until the additional 5 percent deposits became due. By letters dated February 24, 1983, and March 2, 1983, to Dr. Carvajal and Mr. Barona, respectively, Cardounel advised them that the 5 percent deposits had not been paid in December 1982 because the Hamptons was late in construction and it had refused to pay interest on any deposits. In his letter to Mr. Barona, Cardounel advised him that the 5 percent deposit on Unit 605 would be due the end of March and on Unit 1405 the middle of April. In his letter to Dr. Carvajal, Cardounel advised him that the 5 percent deposit on Unit 905 would be due approximately April 1, and on Unit 1503 approximately the middle of April. Subsequent to Cardounel's letters, the Hamptons inquired directly of Mr. Barona concerning his failure to make the additional deposits. By letter of March 20, 1983, Mr. Barona replied that the monies for these deposits had been delivered to Cardounel and authorized the Hamptons to secure the monies from Cardounel. Mr. Barona also instructed Cardounel to immediately deliver the deposits to the Hamptons. At the end of March 1983, Dr. Carvajal and Mr. Barona, having been informed by friends that there might be a "problem" with the purchase of the Hamptons units, traveled to South Florida to confer with Cardounel regarding the status of their agreements and their deposit monies. Their initial meeting occurred on Sunday, at which time Cardounel informed them that he could not get them the monies because the bank was closed. They arranged to meet at his office the next day. On the following day, Dr. Carvajal and Mr. Barona met with Cardounel, but no monies were tendered. Instead, Cardounel exhibited to Dr. Carvajal two original promissory notes purportedly executed by a corporation known as Marfred International Investment, Inc. The first promissory note, dated April 17, 1982, in the amount of $50,000, was for a term of six months, and was represented by Cardounel to be an investment of the $50,000 Dr. Carvajal had entrusted to him. This note was purportedly secured by real property of a value of $120,000. The second promissory note exhibited to Dr. Carvajal, and payable to his order, was an unsecured note dated January 18, 1983, for a term of six months, in the sum of $36,000. This note, purportedly a reinvestment of the proceeds of the first note, did correctly reflect the balance that was due Carvajal, since $14,000 had, with his consent, been previously used for other purposes. This was, however, the first Dr. Carvajal had seen or heard of the January 1983 note. At the sane meeting, Cardounel exhibited four original unsecured promissory notes to Mr. Barona. These notes were not models of draftsmanship. They variously described the payor as Florida Investors Const. Co., Inc., and Florida Investors Const. Co., Inc., and one even named Florida Investors Const. Co., Inc., as payer but was executed by Florida Investors Const. Co., Inc. The notes exhibited to Mr. Barona were as follows: A note dated January 27, 1983, for a term of six months, in the sum of $20,500, A note dated February 2, 1983, for a term of six months, in the sum of $10,250, A note dated October 1, 1983, for a term of 90 days, in the sum of $10,000, and A note dated October 16, 1983, for a term of 9 days, in the sum of $20,000 2/ Prior to this meeting, Mr. Barona had no knowledge of the promissory notes, nor that his monies had not been invested as he had instructed. Dr. Carvajal and Mr. Barona voiced objection to the fact that Cardounel had "invested" their money in the fashion he had, since the monies would not be available as they became due under their agreements with the Hamptons. Further, Cardounel had violated Mr. Barona's instructions to place the sums in a certificate of deposit. In "satisfaction" of the notes, Cardounel issued four postdated checks, payable to Young, Stern and Tannenbaum-- escrow agents for the Hamptons- -and drawn on the personal account of "Eduardo Cardounel or Ena Cardounel." Check No. 4082, in the sum of $20,650, and check No. 4083, in the sum of $19,750, each dated April 7, 1983, represented the amount of monies needed to make the first 5 percent deposits on the Carvajal and Barona units. Check No. 4087, dated July 18, 1983, in the sum of $18,050, and check No. 4088, dated August 2, 1983, in the sum of $12,845, were to be applied to the respective accounts of Carvajal and Barona towards their second 5 percent deposits. Dr. Carvajal and Mr. Barona tendered their respective checks to Young, Stern and Tannenbaum. Each of the checks was deposited on the due dates and each was dishonored and returned for insufficient funds. To date, despite demand, Cardounel has failed to deliver the monies due Dr. Carvajal or Mr. Barona. The events which transpired after Cardounel's receipt of the Carvajals' and Baronas' additional monies are suspect. Cardounel concedes that commencing in 1982 through 1984 his real e state business had not produced any income for him. He had been compelled to sublease space in his offices just to keep his office open, and even then was losing money. Notwithstanding this downturn in the real estate market, Cardounel "invested" the monies entrusted to him with two small development companies with whom he was intimately connected. The monies which Dr. Carvajal entrusted to Cardounel, in April 1982, were purportedly lent to Marfred International Investment, Inc. (Marfred), as evidenced by a secured promissory note dated April 17, 1982, and a renewal unsecured promissory note dated January 18, 1983. Marfred is a Panamanian corporation authorized to do business in Florida. According to Cardounel, Marfred was a real estate developer to whom he had sold property. Cardounel admitted he was the registered agent for Marfred, but denied he was ever an officer of that company. Further, Cardounel could not recall the names of the corporate officers. The records in the office of the Secretary of State, State of Florida, confirm that Cardounel was the registered agent for Marfred, that he filed every Annual Report for Marfred, and that he was a vice president of Marfred in 1983 and 1984. While the first promissory note executed by Marfred, April 17, 1982, purported to be secured by real property of a value of $120,000, the property was described only by lot and block number with no city, county, or state designated. No mortgage on the real property was executed or recorded in connection with this promissory note. Cardounel concedes that absent a mortgage, the promissory note was unsecured, and further testified that he had no idea as to the real value or actual location of the property in question. Cardounel had no explanation as to why the second promissory note, January 18, 1983, was unsecured. The $30,000 which Mr. Barona entrusted to Cardounel, between September and October 1982, was purportedly evidenced by unsecured promissory notes executed by Florida Investros Const. Co., Inc., Florida Investors Const. Co., Inc., or named as payer, Florida Investros Const. Co., Inc., but executed by Florida Investors Constr. Co., Inc. These notes were unconditionally guaranteed by Cardounel. Cardounel was the registered agent for Florida Investros Const. Co., Inc. Coincidentally, Cardounel testified that contemporaneously with his meeting with Dr. Carvajal and Mr. Barona in March 1983, he learned that both Marfred and Florida Investros Const. Co., Inc., were in trouble and there was serious doubt that they could repay the monies. Notwithstanding this "fact," Cardounel tendered to Dr. Carvajal and Mr. Barona his four postdated checks in "satisfaction" of the promissory notes. It is worthy of note that the six promissory notes Cardounel exhibited to Dr. Carvajal and Mr. Barona were all originals, which Cardounel had retained in his possession. Additionally, Cardounel, upon tender of his checks in "satisfaction" of the promissory notes, at no time requested or obtained an assignment of those notes but, rather, had them marked "paid."
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate broker in the State of Florida having been issued license number 0072124. On or about September 6, 1986, the Respondent as seller/owner and Kenneth and Alicia Pelczar as purchasers entered into an agreement for the sale and purchase of Lot 10, Bowden Acres Subdivision, located in Duval County, Florida for the total purchase price of $79,000. Upon execution of the agreement, the purchasers deposited the sum of $1,500.00 with the Respondent which was to be part of the down payment, provided the sale of the property was finalized. The check from the Pelczars was cashed by the Respondent on October 24, 1986. The agreement provided remedies to both the seller and the purchasers if either party defaulted. Under the agreement no commission was to be paid on the sale of the property. The Pelczars were aware that the Respondent owned the property and that they were dealing with her as the owner, not as a real estate broker. The deposit was not paid to Respondent as a real estate broker to be held in trust but was paid to Respondent as part of a down payment to be applied to the total purchase price, if the transaction closed, and subject to being retained as liquidated damages if the purchasers defaulted under the agreement. The Respondent suffered financial difficulties, and on November 19, 1986, the bank foreclosed on several parcels of property owned by the Respondent, including the property Respondent had under contract with the Pelczars. However, the bank gave Respondent written authority to go forward with the sale to the Pelczars. The reason for the Pelczars' refusal to close the transaction on November 14, 1986, is not clear but they refused and demanded the return of the deposit. Respondent retained the deposit under the default clause of the agreement, and has refused to return any portion.
Recommendation Based upon the Findings of Fact, Conclusions of Law the evidence in the record and the demeanor and candor of the witnesses, it is RECOMMENDED that the Commission enter a Final Order DISMISSING the Amended Administrative Complaint filed herein. Respectfully submitted and entered this 15th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 15th day of Decemeber, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2646 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. Adopted in Finding of Fact 6 but clarified. The fact that the closing was to be on November 14, 1986, is adopted in Finding of Fact 6. The balance of paragraph 5 is rejected as not being supported by substantial competent evidence in the record. The fact that the bank authorized the sale of the house after foreclosure is adopted in Finding of Fact 6. The balance of paragraph 7 is rejected as not supported by substantial competent evidence in the record with the exception of the fact that Respondent has not returned the deposit. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. 5.-7. Adopted in Finding of Fact 6. 8.-9. Rejected since it is a statement of Respondent's and Kenneth Pelczar's testimony rather than a finding of fact. Adopted in Finding of Fact 3. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Larry L. Bryan, Esquire 1420 North Third Street Jacksonville, Florida 32250 Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times pertinent to the charges, Respondent Shanker S. Agarwal was a real estate broker in the State of Florida, having been issued License No. 0312860. At all times pertinent to the charges, Respondent Agarwal was the owner, president, and sole qualifying broker for Respondent Super Realty, Inc., a corporation registered as a real estate broker, having been issued License No. 0231636. The Respondents were properly and appropriately served with the Administrative Complaint herein and have had sufficient notice of formal proceedings in this cause, commensurate with the applicable statutes and rules governing disciplinary proceedings. On or about March 13, 1985, Jeanette and David Miller tendered an offer to purchase real estate owned by the Veterans Administration (VA). On March 18, 1985, the VA accepted their offer. Upon making the offer to purchase, Mrs. Miller entrusted to the Respondents an escrow deposit of $500. Upon the offer being accepted, and pursuant to the terms of the contract, Mrs. Miller entrusted an additional escrow deposit of $9,500 to the Respondents. The transaction was scheduled for closing on June 26, 1985. The VA prepared a deed for closing which was sent to the Respondents. At the scheduled date and time of closing, Mrs. Miller appeared prepared to pay by certified checks in her possession, the balance she understood would be due so as to effect the transfer of the new property. However, prior to actually signing the closing papers at the scheduled date and time of closing, she discovered that an extra $6,000 had been added to the closing documents. That amount involved a mortgage with a balloon payment to Respondent Agarwal's wife and one or more mortgages or liens placed upon Mrs. Miller's present home. The closing documents which would have been the best evidence of fraud were not offered at hearing but adequate evidence of their unavailability was made and I accept the unrefuted testimony of Mrs. Miller concerning what she read on the closing documents at the time in question. Mrs. Miller questioned these items in the closing package. Then questioned, Respondent Agarwal first stated that Mrs. Miller should sign and he would explain when they got back to his office. When she persisted, Agarwal flew into a rage. He berated and cursed Mrs. Miller in the presence of several third parties gathered for the closing. When he called her a "bitch," Mrs. Miller was reduced to tears. Mr. Agarwal then stormed out of the room in which the closing was to be conducted. The closing was never consummated. Although still anxious to purchase the house in question, the Millers, through an attorney, demanded from Respondent Agarwal the return of their $10,000, which they understood had been placed in escrow. They sought the help of an attorney because they were unable to get any response from Agarwal despite numerous telephone calls. However, they did not ever demand the deed from Respondents. On August 5, 1986, during the investigation of this matter by the Petitioner, Investigator Anthony Nicola served upon Respondent Agarwal's wife, Pushpa Agarwal, who was present at the offices of Respondent Super Realty, Inc., a subpoena intended for and addressed to "Mr. Shanker Agarwal, c/o Super Realty, Inc." This subpoena was a Department of Professional Regulation subpoena duces tecum number A-004804 issued in Department of Professional Regulation Case No. 0153241 requesting production of "Escrow Account records relative to $500.00 deposit received from Jeanette & David Miller on March 13, 1985." It required production of these papers at another address on August 6, 1986, at 9:00 a.m. The Respondents did not respond to the subpoena. On or about October 17, 1985, the VA, upon learning of the aborted transaction, directed the Respondents to send $500 to the VA, along with a return of the deed. The VA further instructed the Respondents to return the balance of $9,500 to the Millers. The $500 demanded by the VA was in the nature of a penalty or forfeiture for having tied up the property for the intervening months since the closing had been scheduled. Respondent Agarwal notified the VA on November 16, 1985 that because there were conflicting demands on the money, he could not turn over the money or deed to the VA until the Circuit Court resolved the demands. However, neither the VA nor the Millers are aware of any legal action instigated by Respondent. Mrs. Miller, however, had instituted suit against the Respondents to recover her $10,000. No notification of doubt or conflicting demands on deposit in escrow was received by the Florida Real Estate Commission from the Respondents pursuant to Section 475.25(1)(d), Florida Statutes. To the date of formal hearing, the Respondents had never accounted for or delivered to either the VA or the Millers any part of the $10,000 nor the deed. Further, the Respondents never advised the Millers that the VA had directed them how to disburse the funds. The Millers testified they had become aware of the disbursement recommended by the VA through calls placed to the VA by them and their lawyer, that such a disbursement would have been acceptable to them, and that such a disbursement by Respondents would have resolved any dispute they had with Respondents had that disbursement been made by Respondents. Mrs. Miller testified that her lawsuit has been protracted and is yet to be resolved because Respondent Agarwal's outbursts of temper and assorted motions have resulted in rotation of three judges and in Mrs. Miller having to obtain new legal counsel, however he is aware that the VA and the Millers agree to the disbursement proposed by the VA. Respondent Agarwal also threatened to turn Mrs. Miller over to the Internal Revenue Service. Mrs. Miller does not know what this threat was intended to mean or what it was supposed to accomplish. Petitioner elected to put on no evidence in support of Counts IX and X of the Administrative Complaint.
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 finding Respondents guilty only on Counts I through TV of the Administrative Complaint, exacting a penalty of revocation of both licenses therefore, and dismissing Counts V through X of the Administrative Complaint. DONE AND RECOMMENDED this 28th day of July, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 28th day of July, 1987. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Shanker S. Agarwal c/o Super Realty, Inc. 6147 Washington Street Hollywood, Florida 33023 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether or not the Respondent, Robert William Snyder, obtained his registration as a real estate salesman with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation of subsection 475.25(2), Florida Statutes, and operated as a real estate salesman without being a holder of a valid current registration certificate at the time of operating as such, in violation of subsection 475.42(1)(a), Florida Statutes, and for these violations whether the real estate license of Robert William Snyder should be suspended and/or revoked. Whether or not the Respondent, Robert William Snyder, has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings, trick, scheme or device, or breach of trust in a business transaction as stated in the Information in violation of subsection 475.25(1)(a), Florida Statutes, and for these violations the real estate license of Robert William Snyder should be suspended for such a violation.
Findings Of Fact On February 9, 1972, the Respondent made application to be registered as a real estate salesman in the State of Florida. (See Petitioner's Exhibit no. 1). The Respondent was subsequently registered a real estate salesman in the State of Florida, and was so registered on March 11, 1975, when he was given a notice of the Information in this cause, as indicated by Petitioner's Exhibit no. 2. On the date of the hearing in this cause, Respondent was still registered as a real estate salesman with the State of Florida. It would appear that the initial registration certificate became effective on June 1972. When responding to Paragraph 18(a) and 18(b) of the application for registration, which is Petitioner's Exhibit no. 1, the Respondent answered those questions in the negative. The statement of questions 18(a) and 18(b) in the application were as follows: "18(a) Have you in this state operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate broker, within one year next prior to the filing of this applica- tion? 18(b) Have you in this state operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman, within one year next prior to the filing of this application, without being the holder of a valid current registration certificate authorizing you to do so?" Prior to the answers to the questions in the form as stated above, discussions of a purchase of real estate in the State Florida had been entered into between the Respondent and his mother, Eleanor C. Russell. The first of these conversations had occurred while returning to the northeastern United States from a vacation trip to Florida. The exact location of that initial discussion is not known; however, the conversation took place in the Fall of 1971. During 1971 Mrs. Russell lived with the Respondent and his wife for a period of six to eight weeks. During that time frame Mrs. Russell entered into a contract for construction, with the Lake Placid Construction Company, Inc.. The terms of this contract are found in Petitioner's Exhibit no. 8. The date of the contract was November 27, 1971. The contract indicated that Lot 2, Block 153, in Unit 12 Placid Lakes, Highland County, Florida, was the contemplated real estate site upon which a duplex home was to be built. The contract was signed by Mrs. Russell and witnessed by Betty Jane Snyder, the Respondent's wife. The contract was subject to financing being obtained. Respondent appeared in the contract as Robert Snyder, a Connecticut broker. The purchase that was considered was a joint venture between the Respondent and his mother, Eleanor C. Russell. The contract was signed by Mrs. Russell because of certain tax advantages, according to the Respondent, and also because the Respondent was not financially able to get a mortgage in his name solely. When an application for mortgage money was applied for in the name of Eleanor C. Russell, this request was turned down. It was turned down based upon the age of the applicant and the Respondent was required to be a co-signer with his mother for the mortgage commitment to go through. On February 29, 1972, the Respondent signed an agreement for deed on the same parcel of land as shown in the contract which is Petitioner's Exhibit no. 1. The terms of the agreement for deed are found in Respondent's Exhibit no. 1. This agreement for deed was supported by a cash down payment from the Respondent, and was signed solely by the Respondent. Eleanor C. Russell had put up money in the amount of $14,000.00 for the purchase of the real estate indicated in the contract of November 27, 1971. The amounts of the checks can be found as part of the attachment to Petitioner's Exhibit no. 3. The purchase of the property was to be effectuated with $14,000 to be paid by Eleanor C. Russell to William Snyder, to be given to the Lake Placid Holding Company, and by funds which the Respondent expected to derive from the sale of the property which he was going to purchase with his mother. The funds were commissions for the sale of the lot according to the contract with the Lake Placid Holding Company, which is Petitioner's Exhibit 9, and also, funds as a commission for the sale of the building itself, which is in accordance with the contract, Petitioner's Exhibit no. 9. The contract was never consummated due to a disagreement between the Respondent and his mother. The $14,000 which the mother had paid to the Respondent has never been reimbursed to the mother and a judgment has been rendered in favor of Eleanor C. Russell, in the amount of $14,000.00. (See Petitioner's Exhibit no. 6). The formal negotiations for the sale of the contract for the benefit of the Respondent and his mother, Eleanor C. Russell, occurred in the State of Florida, as it pertains to the contract which she signed, Petitioner's Exhibit The contracts with the bank for financing, and the agreement for deed, Respondent's Exhibit no. 8, signed by the Respondent were in Florida. On the subject of the commissions which the Respondent intended to claim, he intended to claim those commissions as a Connecticut broker, although the sale would have occurred in Florida. The rationale for claiming the commissions, was that the Respondent was entitled to those commissions for the sale of the property to himself, in the same fashion that he would be entitled to the commissions for sales of property to a client in the State of Connecticut, acting as a Connecticut real estate broker. An indication of the Respondent's perception of his status is supported by the words "Connecticut Broker," found on the aforementioned checks signed by Eleanor C. Russell, the contract signed by Mrs. Russell and the agreement for deed signed by the Respondent. The money which was given to the Respondent by his mother as a part of the purchase of the real estate and home, has been spent by the Respondent for debts and for furniture, none of these items for the benefit of the mother, Eleanor C. Russell.
Recommendation It is recommended that the real estate registration certificate of Robert William Snyder, the Respondent, to be a real estate salesman in the State of Florida be revoked. DONE and ENTERED this 7th day of June, 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: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Robert William Snyder 2078 Sunset Point Road, Apt. 82 Woodlake Condominiums Clearwater, Florida 33515
