The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
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 both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
Findings Of Fact At all times material hereto, Fetters has been a licensed real estate broker in the State of Florida, trading as RONTRON Realty and Investment, with offices in Largo, Florida, and Choudhury has been a licensed real estate salesperson at RONTRON Realty. Fetters was Choudhury's broker at all times material hereto. Stanley and Mary K. Jankiewicz listed their home for $189,000 with Harvey Seybold, a licensed real estate broker, and neighbor. On January 28, 1988, Choudhury contacted Seybold and asked to see the Jankiewicz house. Seybold showed the house that same day. On January 30, 1988, Choudhury presented a contract for the sale and purchase of the home to Seybold and Jankiewicz. The purchasers, John and Gail Taylor, offered $185,000, but this offer was unacceptable to Jankiewicz because it called for him to hold a $150,000 purchase money mortgage. Jankiewicz proposed a counteroffer, which still provided for a sales price of $185,000, but only required him to hold a purchase money mortgage of $25,000. It also required the Taylors to obtain a firm financing commitment within 45 days for a first mortgage in the amount of $129,000. The Taylors accepted this counteroffer, and the transaction was scheduled to close on March 30, 1988, as proposed in Jankiewicz' counteroffer. Jankiewicz and Seybold testified that Choudhury told them, on January 30, 1988, that the Taylors had a net worth of from $2 to $3 million, and that he had a copy of their financial statement in his office, which he had reviewed. They claim that he promised to provide them with a copy of this financial statement on February 1, 1988. Jankiewicz testified that Choudhury's representation about the financial condition of the Taylors was a significant inducement for him to propose his counteroffer, and he would not have gone through wish this sale had he known on January 30, 1988, what he subsequently learned about their net worth. Choudhury denies making any representation about the Taylors' net worth. He testified that he had only met the Taylors on one occasion, and had no way of knowing their net worth since he denies having a copy of their financial statement at that time. When the Taylors' financial statement was not provided on February 1, 1988, Jankiewicz and Seybold made repeated attempts to contact Choudhury, most of which were futile. He would not return their calls. Finally, on March 7, 1988, Choudhury did send Seybold a copy of the Taylors' financial statement, and Seybold immediately forwarded it to Jankiewicz. The financial statement is dated January 31, 1988, and indicates a net worth of $238,100. Choudhury testified that he forwarded this financial statement to Seybold as soon as he received it from the Taylors, but that when he looked it over he was "shocked". Choudhury offered no credible explanation of why he would be "shocked" to see the Taylors' financial statement, unless he had expected a far higher net worth. Yet, he testified that he had no knowledge of their net worth. Based upon the demeanor of the witnesses, and after considering the testimony of Choudhury, Seybold and Jankiewicz, as well as Choudhury's unexplained testimony about being "shocked" to see the Taylors' net worth, it is found that Choudhury did represent to Jankiewicz and Seybold on January 30, 1988, that the Taylors had a net worth of from $2 to $3 million. This statement was false, but it was a material inducement which led Jankiewicz to make his counteroffer, accepting a $25,000 purchase money mortgage. The contract for sale did not provide any contingency which addressed Jankiewicz' concerns about the Taylors' net worth. He and Seybold believed Choudhury's representations, and admitted at hearing that it was an oversight on their part not to insist on a contingency in the sales contract. They simply took Choudhury's word that he had seen their financial statement, and it showed a net worth of $2 to $3 million. When he received the Taylors' financial statement in early March, 1988, Jankiewicz tried to back out of the deal, but because there was no contingency in the sales contract, and because the Taylors threatened to sue him for breach of contract if he did not close, he went through with the sale. The sale closed, as scheduled, on March 30, 1988. The Taylors had obtained a first mortgage through bank financing in early March, and have subsequently made payments to Jankiewicz under the purchase money mortgage which he holds, although on occasion they have been late with their payments. At no time did Fetters participate in the discussions which took place with Jankiewicz and Seybold concerning this sale. Choudhury made all contacts with them, presented the sales contract, and attended the closing. The Petitioner's investigator, Leo Huddleston, visited Fetters on June 28, 1988, to examine Fetters' records concerning the Jankiewicz transaction, but Fetters brought no records with him to this meeting. He claimed that Choudhury had all of these records. Subsequently, he did provide Huddleston with escrow records showing a $20,000 deposit in his escrow account, and copies of three checks from the Taylors totaling $20,000, which he claimed he received as their deposit on the Jankiewicz house, and which he stated he then deposited in his escrow account. These checks do indicate on their face that they were for a house deposit. However, Fetters was never able to produce a copy of his deposit slips or bank records which would directly establish that the Taylors' checks were in fact deposited into his escrow account. There was no indication on the face of the checks that they were deposited into his escrow account, or that he had an escrow account established for this purpose. Fetters testified at hearing, that he had lost his bank records, and presumed that a former tenant had taken them when he moved. Fetters failed to keep adequate records of his escrow account that would allow an audit of funds deposited into, and withdrawn from, such account. He could not establish that he had an escrow account on which he was signatory. He was also negligent in failing to safeguard any such records which he may have had, and could not produce complete records of his escrow account which would establish that the Taylors' deposit checks were placed in his escrow account, and remained there until they were withdrawn by a $20,000 cashier's check that was exchanged at closing. Following initial investigation of a complaint filed by Jankiewicz against Fetters and Choudhury, a probable cause panel decided not to issue an Administrative Complaint, and they were informed, in August, 1988, that this complaint file had been closed. Subsequently, however, new evidence was discovered concerning the fact that Seybold had also been present on January 30, 1988, when Choudhury met with Jankiewicz, and Seybold confirmed Jankiewicz' recollection of Choudhury's statements. Thereupon, this complaint was resubmitted to a probable cause panel, and the Administrative Complaint which is at issue in this case was filed.
Recommendation Based upon the foregoing, it is recommended that Florida Real Estate Commission enter a Final Order suspending Respondent Fetters license for a period of six months, and suspending Respondent Choudhury's license for a period of one year. DONE AND ENTERED this 17th day of July, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX The Petitioner did not timely file Proposed Findings of Fact. Respondent Choudhury did file a Memorandum of Law which contains unnumbered paragraphs under a section referred to as "Facts". This Memorandum has been considered in the preparation of this Recommended Order, but specific rulings cannot be made on the matters contained in the section labeled "Facts" since this consists largely of argument on the evidence without any citation to the record as required by Rule 22I-6.031(3), F.A.C. Rulings on the Respondent Fetters' Proposed Findings of Fact: 1-2. Adopted in Finding 1. 3. Adopted in Findings 2, 8. 4-5. Adopted in Findings 3, 4. Rejected in Finding 5, and as argument on the evidence, rather than a proposed finding of fact. Adopted and Rejected in part in Findings 10, 11. Rejected in Finding 11. Not a proposed finding of fact. COPIES FURNISHED: ARTHUR R. SHELL, ESQUIRE DIVISION OF REAL ESTATE P. O. BOX 1900 ORLANDO, FLORIDA 32802 LESLIE M. CONKLIN, ESQUIRE 2120 U.S. 19, SOUTH SUITE 210 CLEARWATER, FLORIDA 34624 RONALD P. TEEVAN, ESQUIRE 200 NORTH GARDEN AVENUE SUITE A CLEARWATER, FLORIDA 34615 DARLENE F. KELLER DIVISION DIRECTOR P. O. BOX 1900 ORLANDO, FLORIDA 32802 KENNETH EASLEY, GENERAL COUNSEL NORTHWOOD CENTRE 1940 NORTH MONROE STREET SUITE 60 TALLAHASSEE, FLORIDA 32399-0792 =================================================================
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following facts were found: At all times relevant hereto, respondent was licensed as a real estate salesman in the State of Florida having been issued license No. 0204657 which license was inactive and scheduled to expire on March 31, 1983. Respondent's license was renewed on April 1, 1983. On or about May 13, 1983, on Information filed by the office of the State Attorney of the 12th Judicial Circuit in the State of Florida, respondent was charged with the commission of prostitution, lewdness or assignation; contrary to Section 796.07, Florida Statutes. Thereafter, on December 19, 1983, respondent made her appearance in the County Court of Sarasota County, Florida, before the Honorable Robert Stahlschmidt, County Court Judge, and entered a plea of no1o contendere to the charge of prostitution. On the same day, Judge Stahlschmidt, withheld adjudication; sentenced respondent to sixty (60) days in the county jail which was suspended; fined respondent $340, including court costs; placed respondent on supervised probation for a period of one (1) year under the supervision of the Salvation Army Correction Division upon the condition that she serve 50 hours of community services and not be involved in any acts of prostitution.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the respondent be found guilty of violation of Section 475.25(1)(f), Florida Statutes, 1983. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of REPRIMAND to the respondent. Respectively submitted and entered this 17th day of May, 1985 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 17th day of May, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Gerald C. Surfus, Esquire 150 East Avenue South Sarasota, Florida 33577 Sharla Speakman Post Office Box 4202 Sarasota, Florida 33578 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802
Findings Of Fact The Respondent, Joyce Chandler, prior to February 2, 1982, was a real estate salesman employed by Frank Ambrose, a real estate broker. On February 2, 1982, Chandler became licensed as a real estate broker with the State of Florida, and holds license number 0348072. On February 8, 1982, the Respondent drafted an offer to purchase for herself property located at 811 Perrine Avenue in Miami, which belonged to Dr. Harry Moskowitz. The purchase price of the offer was $140,000. The Respondent took the offer to Carol Rebhan, the listing salesman of the property who was employed by Tauber-Manon Red Carpet Realty. The offer provided that an earnest money deposit of $100 would be placed in the escrow account of Roberta Fox, the Respondent's attorney, with an additional $5,000 to be deposited in Roberta Fox's escrow account within three working days of acceptance of the offer. The contract also called for a ten percent brokerage fee to be divided equally between the Respondent and Tauber-non Red Carpet Realty. Carol Rebhan and the Respondent presented the offer to Eugene Lemlich, attorney for the seller Dr. Harry Moskowitz. After contacting Dr. Moskowitz in Texas, Lemlich accepted the offer on his behalf. Three working days after the offer was accepted, Carol Rebhan called Roberta Fox's office repeatedly to determine whether the additional $5,000 deposit had been placed in escrow. Fox's office advised Rebhan that they did not have the $5,000 deposit. Rebhan confronted the Respondent with this information, and the Respondent stated that she was going to deposit the monies with Frank Ambrose at Landmark Title. The next day, Rebhan contacted Landmark Title and was informed that they did not have the deposit in escrow. On or about the 14th of February, 1982, Rebhan contacted Frank Ambrose personally and inquired about the $5,000 deposit. Ambrose told Rebhan that Landmark Title was in possession of the deposit. This was not true. Rebhan requested that Ambrose send her an escrow letter acknowledging possession of the $5,000 deposit. By letter dated February 18, 1982, Ambrose informed Rebhan that Landmark Title was in possession of the $5,000 deposit. On February 18, 1982, the Respondent gave Ambrose a $5,000 check payable to Landmark Title Company. The check was for the additional deposit on the Moskowitz property and was post-dated to February 28, 1982. The check was deposited on February 19, 1982. On February 25, 1982, Ambrose was informed that there were insufficient funds in the Respondent's account to pay the check. Ambrose notified the Respondent that the check had been returned unpaid. She advised him that she was expecting some funds, and would make the check good within a few days. Ambrose took no action to notify the parties at this time. In the first week of March, 1982, when Ambrose had still not received funds from the Respondent to cover the check, he contacted Carol Rebhan and informed her of the series of events which had occurred with regard to the deposit check. When Rebhan subsequently contacted the Respondent and told her that her $5,000 check had bounced, the Respondent seemed shocked at the news. The Respondent has not made good the check returned to Landmark Title Company, nor has she placed the $5,000 deposit in escrow in accordance with the terms of the contract with Dr. Moskowitz. Throughout the entire transaction, the Respondent misled the parties involved with regard to the location and existence of the earnest money deposit, she represented that she would replace the dishonored check or make it-good but has not done so, and she has thereby breached her contract to purchase the subject property from Dr. Moskowitz. The Respondent contends that she informed all parties that the $5,000 check would be post-dated, but there is not sufficient evidence to support this assertion. Nevertheless, the post-dated check given by the Respondent has never been made good, so the Respondent's contention that she advised the parties at the outset that the $5,000 check would be post-dated, is irrelevant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of the Respondent, Joyce A. Chandler, be suspended for a period of one year. THIS RECOMMENDED ORDER ENTERED this 9th day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Joyce A. Chandler 11231 S.W. 201st Street Miami, Florida 33189 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The parties stipulated on the record that the issues for determination in this proceeding are: Whether the crime of manslaughter for which Ms. Antel was convicted is a crime of moral turpitude, and Whether sufficient rehabilitation has taken place since the crime was committed.
Findings Of Fact Petitioner, Donna Antel, submitted her application for license as a real estate salesperson on August 1, 1966. In that application she revealed information regarding conviction of a crime. In December 1982, Donna Antel moved to Florida with her husband, to start a new life after a series of business, financial and personal problems in New York State. Shortly afterwards, it became obvious that the problems also moved with them--the ex-wife began harassing them and the husband's children came to stay, causing severe financial and emotional stress on the relationship. In August 1983, Ms. Antel sat in the bedroom with a rifle, contemplating suicide. He husband walked in, and she shot him. She was tried for 1st degree murder. On December 14, 1984, she was convicted of manslaughter in a jury trial, in Brevard County, Florida. Ms. Antel was sentenced to ten years in prison; she served eleven months in prison and six months on a work release program. On May 6, 1986, she was released on parole. After release from prison, Ms. Antel received psychological counseling and has completed her course of therapy. She has committed no parole violations and is due to be fully released sometime in 1993. For the six months proceeding the final hearing Ms. Antel was employed as an assistant property manager.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 20th day of July, 1987, in Tallahassee, Florida. MARY CLARK 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 20th day of July, 1987. APPENDIX The following constitute my specific rulings on the findings of fact proposed by the Respondent. Adopted in Paragraph #1. Adopted in Paragraph #1. Adopted in Paragraph #3 Rejected as unnecessary. Adopted in paragraph #2. Adopted in paragraph #2 Rejected as cumulative and unnecessary. Adopted in paragraph #3. Adopted in paragraph #3. Petitioner's post-hearing submittals were filed on July 15, 1987, well after the established deadline. COPIES FURNISHED: Harold Huff Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Vincent W. Howard, Jr., Esquire Howard & Reyes, Charter 210 North Park Avenue Sanford, Florida 32771 Lawrence S. Gendzier, Esquire Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is now, and has been since April 6, 1981, a licensed real estate broker holding license no. 0077440. On August 17, 1984, Respondent was convicted in the United States District Court, Southern District of Florida, of the following offenses: Two counts of mail fraud; Three counts of the use of mail to defraud; Four counts of wire fraud; Two counts of interstate transportation of stolen property; One count of conspiracy to commit mail and wire fraud. The Petitioner was sentenced to total confinement of 15 years, total probation of 5 years and a total fine of $100,000.00. The court further ordered that the Petitioner not engage in any activity involving the solicitation of investors while on probation. The Respondent did not inform or otherwise advise the Florida Real Estate Commission in writing within 30 days of having been convicted of the aforementioned felonies.
Recommendation Based on the foregoing Conclusions of Law and Findings of Fact it is recommended that Respondent's license as a real estate broker be REVOKED. DONE and ORDERED this 10th day of December, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 10th day of December, 1985. COPIES FURNISHED: Sue Hartmann, Esq. Department of Professional Regulation Florida Real Estate Commission West Robinson Street Orlando, Flordia 32801 Steven J. Sawyer Holiday Drive Hallandale, Florida 33009 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802
The Issue Whether Respondent's registration as a real estate salesman should be suspended or revoked, pursuant to Section 475.25, Florida Statutes. At the hearing, respondent moved to dismiss certain portions of petitioner's second amended administrative complaint on various grounds. Ruling on the motion was reserved and it will be considered in Conclusions of Law herein. At the conclusion of petitioner's case, respondent's motion for a directed verdict was denied.
Findings Of Fact On October 12, 1973, respondent filed application with the petitioner for registration as a real estate salesman. Question 9 on the form application as completed by respondent reads as follows: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of municipality, state or nation, including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted If yes, state details in full Minor traffic tickets-No court involved." Thereafter, on March 15, 1974, respondent was issued certificate No. 0126461 as a registered real estate salesman in Ft. Lauderdale, Florida. The registration was renewed on April 1, 1975, with expiration date of March 31, 1977. (Petitioner's Composite Exhibit No. 1) On June 22, 1959, respondent was arrested by federal authorities in Miami, Florida, pursuant to a warrant issued by the U.S. District Court of the Middle District of North Carolina upon an indictment charging him with failure to file income tax returns in violation of Title 26, U.S. Code, Section 7203. Respondent pleaded guilty to the offense and, on February 19, 1960, was sentenced to pay a fine of $2,000 and to be confined for a period of one year. The execution of the prison sentence was suspended and respondent was placed on probation for a period of three years subject to payment of the fine and delinquent income tax. (Petitioner's Exhibit 2) On August 13, 1974, the United States Attorney, United States District Court for the Southern District of Florida, filed an information against respondent charging him with willfully filing a fraudulent and false document as to a material matter in an application for enrollment to practice before the Internal Revenue Service, in violation of Title 26, United States Code, Section 7207. On August 27, 1974, respondent pleaded guilty to the offense and was sentenced to pay a fine of $250.00 The offense of which respondent was convicted was based on a negative answer to a question on the application which was similar to question 9 on the application for registration as a real estate salesman. (Petitioner's Exhibit 3, Testimony of Respondent) Respondent testified in denial of any intention to mislead or deceive petitioner as to the fact of his federal conviction in 1960. It was his opinion, based on advice of counsel representing him during those proceedings, that the conviction would be "wiped out" or otherwise expunged from the records in a period of ten years. Accordingly, when his wife was filling out the real estate application for him and inquired about an answer to question 9, respondent told her not to list the arrest and conviction since it has been "wiped out." Petitioner states that he did not read his application before signing and submitting it to petitioner because he relied upon his wife who customarily prepared such documents for him. Petitioner's explanation for his failure to fully answer question 9 of the application is not deemed credible and is insufficiently supported by other evidence. (Testimony of respondent, Sheila Noritis) Petitioner is a competent and efficient accountant and real estate salesman who enjoys a good reputation for truth and honesty in his community. (Testimony of Stratton, Francis, M. Hartigan, J. Hartigan, Langberg, Deschamps, Cubbison, Mullenski, McTaggart; supplemented by respondent's Exhibits 2-4) Respondent sought to introduce into evidence the results of a voluntary polygraph examination to show that in the opinion of the polygraph examiner, respondent was being truthful in his answers to questions bearing on his honest belief that the federal conviction had been "wiped out." Petitioner's objection to the receipt of such evidence was sustained. (Respondent's Exhibit 1 for identification [rejected]).
Recommendation It is recommended that respondent's registration as a real estate salesman be suspended for a period of sixty (60) days, but that the enforcement thereof be held in abeyance for a like period. DONE and ENTERED this 16th day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Bruno Di Giulian and John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33394
Findings Of Fact At all times relative to the issues presented herein, Respondent, Nick A. Amorginos, was a licensed real estate broker in the State of Florida under Florida license number 001406. On June 27, 1984, he was found guilty in the Circuit Court of Marion County, in case number 83-227-CF-B-Z, based on his plea of nolo contendere of the offense of bookmaking and was thereafter placed on probation for a period of 18 months. As part of the conditions of probation, Respondent was ordered to pay $5,000.00 as investigative costs to the Ocala Police Department Law Enforcement Trust Fund. Notwithstanding his conviction of bookmaking, Respondent has a reputation in and around his community of being fair, honest, and informed in both his personal and business dealings. Such individuals as the Mayor of Tarpon Springs, Florida, the City Manager of Tarpon Springs, the priest of St. Nicholas Greek Orthodox Cathedral in Tarpon Springs, and others who have known him for an extended period of time concur in that analysis. His business associates such as a mortgage broker, a consulting engineer, employees, and those who have retained him to represent them in real estate transactions concur indicating confidence in his professional ability and personal integrity even though they, or some of them, are aware of the charge of which he has been found guilty. Other real estate brokers and professionals in other disciplines such as pharmacy and insurance agree.
Findings Of Fact When Petitioner applied to take the Florida Real Estate Salesman's Licensure Examination in approximately 1971 or 1972, it was discovered that criminal charges were still pending against Petitioner as a result of a check which had "bounced" in 1962, or 1963. He therefore made restitution on that check, even though the charges had been pending for almost ten years, and Petitioner was allowed to take the licensure examination. He failed to achieve a passing score. Petitioner did not immediately attempt to sit for the licensure examination a second time but rather simply continued operating his retail florist business. In 1976 he had a dispute with an intermittent employee who had just left Petitioner's employment and started working for one of Petitioner's competitors. When an insurance/salary reimbursement check made payable to petitioner's florist shop and that employee arrived, Petitioner endorsed the names of both payees and cashed the check. Charges arising from that $46.00 check were dismissed after Petitioner had been arrested and had made restitution. For approximately three years before her death in 1973, Petitioner and his wife "cared for" his mother-in-law who was in a nursing home. During that time her only source of income was her Social Security checks, and Petitioner had a power of attorney to sign her name and cash her checks. After her death the checks continued to come although Petitioner called and wrote the Social Security Office. He started collecting them and storing them in a box. In 1975 his florist business encountered financial difficulties, and Petitioner signed his name and his deceased mother-in-law's name to the checks he had been collecting and cashed them. He was subsequently arrested by the F.B.I. and charged with 46 counts of uttering forged U.S. Treasury checks, one count for each check. On December 12, 1977, Petitioner plead guilty and was found guilty. He was committed to some type of work release program on one count. As to counts two through 46, sentence was withheld and he was placed on probation for a period of three years with the additional condition that restitution be made. Petitioner did make restitution. Toward the end of 1982 Petitioner realized that his educational credits would soon expire and he again wished to apply to take the Real Estate Licensure Examination. Where questioned on his application whether he had ever been arrested or charged with any offenses, Petitioner responded in the affirmative and listed the 1963 bad check which was paid, the "1977" check which was paid, and a 1978 three year probation with restitution. Based upon that information, Respondent denied Petitioner's application to take the licensure examination.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 27th day of August, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 27th day of August, 1984. COPIES FURNISHED: Mildred Smith Brown, Esquire 4173 Southwest LeJeune Road Miami, Florida 33146 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32001
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 20, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating and disciplining real estate licensees. At all times material to the allegations of this case, the Respondent has been a real estate licensee having been issued salesman's license no. 0455312. In March, 1989, Respondent met with Thomas and Cheryl Bellaw regarding the purchase of real property. The Bellaws were interested in investment property which would enhance their retirement options. Respondent showed the Bellaws a 7.5 acre tract which he claimed could be subdivided into smaller lots and resold at a substantial profit. As an inducement to convince the Bellaws to make the purchase, the Respondent drew several plans to show how the tract could be divided, made resale projections to compute the buyers' estimated profits from the subdivision of the land, and gave the buyers sales comparables from other lots to justify the figures he presented. In truth, the tract could not be subdivided and was the subject of a county ordinance which prohibited its division. Respondent knew that the tract could not be subdivided but nevertheless encouraged the Bellaws to complete the purchase. Once the purchase was completed, the Bellaws listed the property for resale with the Respondent at a substantial increase. At no time prior to the purchase by the Bellaws or prior to the subsequent relisting, did the Respondent advise the Bellaws that the tract could not be subdivided. When the listing produced no offers, the Bellaws investigated and discovered that the tract they had purchased had been illegally subdivided earlier from a 10 acre parcel. Respondent admitted that the 10 acres had been owned by a married couple who, in the course of their divorce, quitclaimed part to the wife (the portion not sold to the Bellaws) and part to the husband (the portion purchased by the Bellaws), and that this subdivision was impermissible. The Bellaws then went to the county for relief. They sought after-the- fact permission to subdivide the 10 acre parcel so that their tract would be able to receive a building permit. That relief was denied. Consequently, the Bellaws have been unable to assure that a building permit can be issued for their property and are unable to use the tract for the purpose for which it was purchased. Respondent should have known of the county ordinance which prohibited the subdivision of the 10 acre tract as it had been enacted some seven to eight years prior to the transaction which is the subject of this case. A prudent real estate licensee checks governmental restrictions which might impair the marketability of a parcel.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license. DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is accepted but is irrelevant to the allegations of this case. Paragraphs 4 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: James H. Gillis Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Paul Edward Ebbert, Jr. 1000 Abernathy Lane, #206 Apopka, Florida 32703 Paul Edward Ebbert, Jr. 770 Lake Kathryn Circle Casselberry, Florida 32307 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
