The Issue The issue is whether Respondent should grant Petitioner a real estate broker license.
Findings Of Fact Mr. Mouflouze has held real estate licenses in New Hampshire and Maine for about 28 years. He lives in Portsmouth, New Hampshire, which abuts the Maine border. It was because he lives in close proximity to Maine, that he maintained a license there, also. The Commission, pursuant to Chapter 475, regulates real estate brokers and sales associates. The Commission accomplishes this regulation through the Division of Real Estate of the Department of Business and Professional Regulation. Mr. Mouflouze currently holds a broker's and salesperson's license in New Hampshire. He has not experienced any disciplinary action in that state. These licenses have an expiration date of April 1, 2008. From 1982 until 2004, Mr. Mouflouze held a designated broker's license in Maine. Prior to February 19, 2004, Mr. Mouflouze failed to complete the required hours of continuing education in Maine, according to the Maine Real Estate Commission (Maine Commission). He disagreed with this conclusion. He attended a hearing before the Maine Commission and after the hearing the Maine Commission ordered him to pay a fine of $900 and to complete six hours of continuing education. Mr. Mouflouze refused to pay the fine or otherwise obey the order. As a result, the Maine Commission had another hearing in his case on August 19, 2004, based on his failure to comply with its order. As a result of that hearing, his designated broker license was revoked effective the date of the hearing. As of the date of the hearing in this case, his license in Maine had not been reinstated. Mr. Mouflouze is a person who is regarded as a highly qualified and ethical real estate broker. He is reputed to be honest and hard-working.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission deny William Peter Mouflouze's application for licensure as a real estate broker. DONE AND ENTERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William Peter Mouflouze Bill Mouflouze Real Estate Post Office Box 6541 Portsmouth, New Hampshire 03802-6541 Nancy B. Hogan, Chairman Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the real estate license of Loran V. Carlton should be suspended or revoked.
Findings Of Fact Loran V. Carlton is a registered real estate broker who holds License No. 0013194. Mr. Carlton was employed as a registered real estate salesman in the employ of broker George H. Inman doing business as Inman Realty Company in the years 1973 and 1974 and at the time the subject business transaction took place. On September 11, 1972, Respondent Loran V. Carlton entered into an agreement to lease certain property owned by R. Vance Barden, located in Jefferson County, Florida, which is the property involved in subject real estate transaction. The lease contained an option to purchase property which is the subject of this hearing. Mr. Joseph F. Carrin, a real estate appraiser, appraised the subject property at the request of Respondent Carlton for the Barden estate and submitted an appraisal report dated May 22, 1973. August 10, 1973 Carlton drafted a contract receipt between Virgil R. Norris and Brian T. Hayes, trustee to purchase the subject property for $135,000. It was executed September 1973. A contract was entered into by Carlton dated the 14th day of August, 1973, to purchase said property from Henry Henriquez, as executor of the estate of R. Vance Barden, deceased, for a total cash price of $55,000. On or about August 15, 1973, the executor of the estate of R. Vance Barden petitioned the Court for an. Order of Sale of the subject property based on the exercise of the option contained in the contract between the testator Barden and Respondent Carlton dated September 11, 1972. Carlton purchased said property on August 20, 1973 from Henry Henriquez, as executor of the estate of R. Vance Barden, deceased, for a total cash price of $55,000. By an instrument dated August 1973, Carlton and his wife mortgaged subject property to the Farmer's and Merchant's Bank of Monticello. On or about September 12th or 13th, 1973, Loran V. Carlton and Lucille V. Carlton entered a trust agreement to convey the said property to Brian T. Hayes as trustee. By deed dated September 12, 1973, Carlton and his wife conveyed subject property to Brian T. Hayes, trustee. A title binder on the subject property was sent to Virgil R. Norris on February 12, 1974, which referred to the mortgage of August 1973 between the Carltons and the bank. A Purchase Agreement Extension and Receipt between Mr. Norris and Thomas G. Ellis and Mr. Hayes was executed April 12, 1974. Inman Realty Company was paid a commission of $6,750.00 on April 12, 1975, a portion of which commission was paid Respondent Carlton as salesman for Inman Realty Company. On May 1, 1974 the trustee sent the satisfaction of the mortgage to Mr. Norris. In August or September of 1973 Carlton and Ellis had discussed the purchase of subject property. There has not been a final closing of the transaction as of the date of this hearing. Mr. Virgil R. Norris died November 16, 1975. On April 1, 1976 the Florida Real Estate Commission filed an Administrative Complaint seeking to "revoke or suspend or otherwise discipline" the Respondent Loran V. Carlton for the reason that the Respondent "failed to disclose to Virgil R. Norris or Thomas G. Ellis, Jr. the facts concerning Carlton's personal interest in the subject property," and further charging "that by reason of the foregoing, the Respondent, Loran V. Carlton, is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing, trick, scheme or device, or breach of trust in a business transaction in this state in violation of Subsection 475.25(1)(a), Florida Statutes."
Recommendation Dismiss the complaint. DONE and ORDERED this 24th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Room 530 Carlton Building Division of Administrative Hearings Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann III, Esquire Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Stanley Bruce Powell, Esquire 317 East Park Avenue Tallahassee, Florida 32302
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: Respondent, Robert E. Zimmerly (Zimmerly) is a licensed real estate broker having been issued license No. 0127833, with last known address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a real estate broker. Respondent, Haines City Realty, Inc. (Haines City) is a licensed corporate real estate broker having been issued registration No. 0146307, with its last known business address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a corporate real estate broker. Haines City's license is currently in an inactive status. At all times pertinent to these proceedings, Zimmerly was the sole broker, of and for Haines City, and was its President. Several weeks prior to April 23, 1981, the date N. B. Willoughby (Willoughby) signed the first offer to purchase the property (offer), Zimmerly along with Barbara Costello (Costello) and Chancellor I. Hannon (Hannon) showed the property described as "Lots 230 and 233 of the Lucerne Park Fruit Association Subdivision, P1at Book 3, Page 67, Public Records of Polk County, Florida" (property), consisting of approximately 20 acres and contiguous to the city limits of Winter Haven, Florida to Willoughby, a prospective buyer, along with Ray Workman (Workman), Willoughby's associate. Costello at the time was a sales person for American Realty of Haines City, now known as American Realty of Polk County, Inc., (American Realty). Zimmerly was representing Haines City. Hannon was representing Ridge Holding Association, Inc., (seller) the owner of the property. The property had originally been listed with Haines City but presently was considered as being listed with American Realty. Subsequent to having seen the property, Willoughby instructed Zimmerly to prepare an offer to purchase, with a purchase price of $70,000, subject to the condition, among others, that the seller would obtain a special exception for a mobile home park. A deposit check for $500 was submitted along with the offer. Costello submitted the offer to Hannon for seller. Sometime around April 25, 1981, Hannon notified Costello that the seller had rejected Willoughby's offer because of the condition concerning a special exception for mobile home park. Within a day, Costello notified Zimmerly of the rejection. Zimmerly requested rejection in writing which Hannon did not furnish until May 11, 1981 due to his involvement in personal matters. Willoughby was not notified of seller's rejection of his first offer until around May 11, 1981. On April 27, 1981, after a verbal notification by Costello of rejection of Willoughby's offer, Zimmerly prepared and submitted an offer to purchase (Ridge offer) from Ridge Crest, Ltd., Agent, (This was apparently meant to be Ridge Crest Villas, Ltd.) signed by Bob Zimmerly, a general and limited partner, to seller, with a purchase price of $72,000, subject to the condition, among others, that seller furnish a letter requesting a special exception for mobile homes park. The Ridge offer was submitted to Hannon for the seller and was accepted by seller on May 5, 1981. On May 18, 1981 Willoughby submitted his second offer to purchase (second offer), with deposit, to seller through Zimmerly. The second offer was identical to the first offer except for the deletion of the condition requiring a special exception for mobile home park. Zimmerly did not advise Willoughby at this time, or at any other time material to the transaction, that Zimmerly was involved in an attempted purchase of the property through Ridge Crest Villas, Ltd. even though the Ridge offer had been accepted on May 5, 1981. Although the Ridge offer indicated a closing date of May 15, 1981, the transaction did not close for reasons not clear in the record, until May 27, 1981. The warranty deed and the mortgage deed executed on day of closing shows Ridge Crest Villas, Ltd. as the Grantee and Mortgagor, respectively. The deposits submitted with both of Willoughby's offers were timely refunded by Zimmerly. Willoughby was notified by Hannon after the closing that his second offer was rejected. On November 6, 1980, a limited partnership known as Ridge Crest Villas Ltd., was filed with the Secretary of State. The record is not clear, but apparently this limited partnership was involuntarily dissolved for failure to file an annual report and on October 14, 1981, an identical limited partnership, with the same name was filed with the Secretary of State. Both limited partnerships listed Robert E. Zimmerly as a general partner with 5 percent interest and listed Robert E. Zimmerly and Dolores J. Zimmerly as limited partners with 45 percent and 50 percent interests, respectively. Respondent Zimmerly's testimony was that: (1) he wanted a written (firm) rejection before notifying Willoughby because of previous dealings with Willoughby; (2) it is not uncommon to use limited partnerships in real estate transactions because of the availability of tax advantages when using a limited partnership; (3) he was acting for Jones and Destefano when he made the offer and purchased the property in the name of the limited partnership; (4) he intended for Jones and Destefano to own the property through the limited partnership and took a promissory note for the down payment; (5) he did not advise Willoughby of his involvement in the purchase of the property, other than in general terms "that some fellows from up north are interested" (Destefano is "from up North") because he had been taught in real estate schools, and it was his policy, not to discuss one prospective buyer's offer with another prospective buyer; and (6) it is common practice to have a "backup" offer as with Willoughby's second offer because you are never sure if a particular transaction will close. Mainly, this testimony went unrebutted by the petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that respondent be found guilty of a violation of Section 475.25(1)(b), Florida Statutes 1981) For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand and impose an administrative fine of $1,000.00. DONE and ENTERED this 10th 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 10th day of May, 1985. COPIES FURNISHED: James R. Mitchell Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite 308 P.O. Box 1900 Orlando, Florida 32802 Arthur C. Fulmer, Esquire P.O. Drawer J Lakeland, Florida 33802 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire 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 West Robinson Street P.O. Box 1900 Orlando, Florida 32802
The Issue Whether Respondent engaged in acts and/or conduct amounting to fraud, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction for which his real estate license should be disciplined.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to, inter alia, Chapters 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, John Wilson Claffey, is now and was at times material hereto, a licensed real estate salesperson in Florida, having been issued licensed number 0419730. The last license issued was as a salesperson, c/o Venice Properties and Investments, Inc., 628 Cypress Avenue, Venice, Florida. During 1985, Respondent and Mary Lou Retty (Retty), while Respondent was acting as the licensed general contractor in the employ of Venice Construction Management, Inc., entered into a verbal agreement to build five commercial structures (for Retty) in Venice, Florida. The agreement provided that Respondent would charge Retty actual costs plus a supervisory fee for each building. Respondent built the first two buildings as agreed in keeping with the projections he provided Retty. However, a dispute later arose between Respondent and Retty during construction of the third building about some of the billings and other accounting practices with the end result that Retty suspected that Respondent was overcharging by falsifying invoices and purchasing materials which were used for other projects, but were charged to the building he was erecting for Retty. During 1986, Retty filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit for Sarasota County, Florida. Retty's object was to recover monies that she suspected Respondent had misappropriated and wrongfully charged to her project. On April 25, 1990 and June 28, 1990, Retty obtained two final judgments. The first judgment ordered Respondent to pay Retty $40,263.47 and the second final judgment ordered him to pay her the sum of $10,263.47 for civil theft, attorney fees and court costs. The interest rate for both judgments was 12% per annum. (Petitioner's Exhibits 1-4.) During counsel's preparation and discovery for trial, it became evident that Respondent altered several billing invoices which he sought to collect from Retty. Respondent submitted falsified invoices and charged Retty for materials that he used on other projects. Respondent unsuccessfully appealed the final judgments. To date, Respondent has not paid any of the monies he was ordered to pay in the final judgments referenced herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent engaged in proscribed conduct as alleged and that his real estate license be suspended for seven (7) years. It is further RECOMMENDED that Respondent Claffey pay an administrative fine of $1,000.00 to Petitioner within thirty (30) days of the entry of its Final Order. DONE and ORDERED this 29th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1993. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John Wilson Claffey 312 Venice Avenue East #126 Venice, Florida 34292 Darlene F. Keller/Executive Director Florida Real Estate Commission Hurston Building-North Tower 400 West Robinson Street Orlando, Florida 32801 1772 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
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 Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1989.
Findings Of Fact Respondent filed application for registration as a real estate salesman on June 24, 1974 and was issued a license pursuant to this application on October 25, 1974. At the time of the filing of the application and subsequent thereto, Respondent was employed by Florida Savings and Loan Services, Inc. and its predecessor company, Florida Informanagement Services, Inc. in the capacity of a real estate appraiser and head of the appraisal department for said company. On July 26, 1975 Respondent performed appraisal services on behalf of Central Development, Inc. to ascertain the fair market rental appraisal of 5 Pizza Huts. For this service his company, then Florida Informanagement Services, Inc. billed Central Development, Inc. $3,000. Respondent performed other appraisals during the period in question which were not specifically delineated at the hearing.
