The Issue Whether Petitioner should be granted an exemption under Section 478.221(3), Florida Statutes, from the provisions of the Florida Uniform Land Sales Practices Law, Chapter 478, Florida Statutes. By stipulation dated February 14, 1978, the parties agreed that the Division of Administrative Hearings take jurisdiction in the matter under Section 120.57(1), in the absence of disputed issues of material fact. The parties also agreed to waive the notice requirements under Chapter 120. The parties stipulated to the facts of the case (Exhibit 4), and to the admission in evidence of Petitioner's application and supporting documents (Composite Exhibit 1), a letter of Respondent acknowledging receipt of the Claim of Exemption dated July 15, 1977, (Exhibit 2), and Respondent's notice to Petitioner, dated September 19, 1977, that the Claim of Exemption was rejected (Exhibit 3). Petitioner submitted an answer filed by the Respondent as Defendant in civil judicial proceedings based on its denial of the exemption claim in the Circuit Court of Leon County, Case No. 77-220, which was rejected by the Hearing Officer as irrelevant to the proceedings in view of the accepted Stipulation of Facts. (Appellate Exhibit 1)
Findings Of Fact The Stipulation of Facts is as follows: On July 14, 1977, Petitioner submitted to the Respondent and the Director thereto, a claim of exemption as required by Florida Statute 478.221(3); and claiming compliance with the provisions thereunder. Pursuant to the discretionary authority as provided for in Section 478.221(3), Florida Statutes, the Director of the Division of Florida Land Sales and Condominiums, by letter dated September 19, 1977, informed Petitioner that its claim for exemption was denied. Said letter is attached hereto and incorporated herein by reference as exhibit 1. The substance of said letter indicated that the Director, pursuant to his discretionary authority, provided for in Section 478.221(3), Florida Statutes, was not satisfied "that all necessary conditions of the exemption are present, i.e., in particular that the property is usable for the purpose for which it is offered." Said denial was based upon a letter received from the Chairman of the Board of County Commissioners of the County of Martin, State of Florida, dated August 8, 1977, and objecting to any exemption on the grounds that: "Gold Coast Ranches has not applied to Martin County for plat approval as required in our subdivision regulations," and; "Gold Coast Ranches, Inc., has not applied for road opening permits as required by Martin County ordinances." Said letter from the County of Martin, also indicated that since the parcels created by Gold Coast Ranches, Inc., were smaller than 20 acres, they were subject to the subdivision regulations of the County. A copy of said August 8, 1977, letter from the Chairman of the Board of County Commissioners, for the County of Martin, State of Florida, is attached hereto and incorporated herein by reference as Exhibit 2. The roads proposed by Gold Coast Ranches, Inc., are to be of a private nature. The subdivision in question is not to be platted, but lots are to be sold pursuant to a metes and bounds description in excess of 5 acres.
Recommendation That Respondent deny Petitioner's request for exemption pursuant to Section 478.221(3), Florida Statutes. Done and Entered this 16th day of March, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire 725 South Bronough 210 Johns Building Tallahassee, Florida 32304 L. M. Taylor, Esquire Post Office Box 14577 North Palm Beach, Florida 33408
The Issue The issue is whether the Respondents are subject to discipline for offering and selling lots in a subdivision. The Department contends that the Respondents were required to obtain an order of registration before selling land, and to comply with other requirements with respect to their sales practices. The Respondents contend they are exempt from the registration and other regulatory requirements.
Findings Of Fact The Division is the state agency responsible for the enforcement of the Florida Uniform Land Sales Practices Act, Chapter 498, Florida Statutes. Orlando East Corporation is a Florida corporation formed in 1980 by Robert J. Loughlin which engages in the business of selling unimproved real estate in the State of Florida. It is not a government agency. Robert J. Loughlin is the President and sole shareholder of Orlando East Corporation. Between 1980 and 1986 the corporation acquired title to approximately 97 lots in the Partin Park Subdivision, a plated subdivision which contains 768 lots located in Orange County, Florida. The plat is recorded in Plat Book N at page 67 in Public Records of Orange County. The subdivision was originally approved by the Board of County Commissioners of Orange County, on February 9, 1926. On April 15, 1980, Orlando East purchased lots 1-24 and 25A in block 5 of the subdivision and lots 24-48 in block 14; on December 5, 1985, the corporation purchased lots 1-24 in block 8 of the subdivision; on June 27, 1986, the corporation purchased lots 25-48 of block 8 of the subdivision. Obviously, Orlando East Corporation is not the original subdivider of Partin Park. The Respondents have offered for sale, and sold 60 of the lots they had purchased in Partin Park by conveying 3-lot parcels in 20 sales transactions. Some of the parcels were sold by agreements for deed (nine sales), or by warranty deed or exchange agreements (11 sales). The relevant documents were executed by Mr. Loughlin on behalf of the corporation. All sales took place before February 16, 1987. One of the purchasers under an agreement for deed was Shirley Katonka. Mr. Loughlin solicited purchasers for the parcels owned by Orlando East through long distance telephone calls to out-of-state purchasers. The Respondents have not obtained an Order Of Registration to sell the lots under Sections 498.005(12), and 498.029, Florida Statutes. Neither do the Respondents have a current Public Offering Statement approved by the Division for the lots offered for sale or sold in the Part in Park subdivision. None of the land conveyed by Orlando East Corporation in the subdivision was sold as part of a reservation program approved by the Division under Section 498.024, Florida Statutes. None of the lots were re-platted after Respondents purchased them. The lots were not offered for sale as cemetery lots. The offer to sell parcels in Partin Park subdivision was not registered with the Florida Department of Banking and Finance, Division of Securities, nor with the United States Securities and Exchange Commission. The sales of each 3 lot parcel in the subdivision were for $5,000 or less. The parcels were sold without any residential or commercial buildings located on them and without the obligation of Orlando East Corporation or Mr. Loughlin to construct residential or commercial buildings on them for the purchasers. The Division had not granted an order exempting Part in Park subdivision from the registration requirements of Chapter 498 Florida Statutes, before any of the 20 sales were made by the Respondents. None of the 20 purchasers the Respondents solicited for sales received a synopsis, which had been approved by the Division, of the sales script used in conjunction with the long distance telephone solicitations. The original plan Orlando East Corporation and Mr. Loughlin had for the distribution of the lots was to sell all lots to fewer than 45 persons. This was accomplished by grouping the lots into parcels of 3-lot units. There were no covenants, declarations, or legal restrictions on the property which prohibited Orlando East Corporation from disposing of the property as individual lots. One of the reasons lots were sold in 3-lot units was to provide a purchaser a large enough piece of property so that the owner might be able to build a house on it, after obtaining a variance from the local government. The property was not sold as a home-site subdivision, however. The individual lots as plated measured 25' x 140', but the 3-lot units meet the county requirements that building lots have 75 feet of frontage and a minimum of 10,000 square feet. Of the eleven agreements for deed, eight of the original purchasers are making payments on their lots. Ms. Shirley Katonka cancelled her purchase several years ago. The Respondents are receiving a gross income of $750 per month for the eight active agreements for deed. The monthly expenses of operation for the Respondents' business is between $300 and $350 per month, leaving the Respondents a net profit of between $400 and $450 per month for the eight active contracts, assuming the purchasers continue to pay under their agreements for deed. Orlando East Corporation currently has $450 in the bank. Respondents are not offering or selling lots now, but are awaiting the outcome of this proceeding. There is no evidence that the Respondents have been selling lots in Partin Park under a common promotional plan with any other person or entity, and the Division does not contend that they are involved in a common promotional plan with any other person or entity. The Respondents argue that their subjective plan of disposition for their 97 lots is determinative of whether they are entitled to an exemption from the registration requirements of Section 498.025(1)(d), Florida Statutes. They contend that their plan of distribution would have provided for no more than 32 sales.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents to be subject to Chapter 498, to have violated Section 498.051(1)(a) and (d), fining them $1,000 each, and requiring them to give purchasers the opportunity to rescind their purchases under Sections 498.023(2)(c) and 498.051(3)(a), Florida Statutes. DONE and ENTERED this 24th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 90-1904 and 90-2515 Rulings on findings proposed by the Department: Adopted in Finding 2. Adopted in Finding 2. Implicit in Finding 3. 4 - 7. Adopted in Finding 3. To the extent necessary, adopted in Finding 2. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 2. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9, but amended to reflect the figure of $5,000. 18 and 19. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Adopted in Finding 16. Rejected as argument. Rulings on findings proposed by the Respondent: Adopted in Finding 1. Adopted in Finding 2. Adopted in Findings 2 and 3. Rejected as unnecessary. Rejected as unnecessary. Rejected as a conclusion of law. Adopted in Finding 4. Adopted in Findings 4 and 5. Rejected as unnecessary, but implicit in Finding 4. Rejected as unnecessary. Only the conduct of the Respondent is at issue here. Implicit in Finding 12. Implicit in Finding 12, although there is no legal impediment to selling individual lots. Adopted in Finding 12, except for the final sentence which is rejected as unnecessary. Adopted in Finding 12. Implicit in Finding 12. Sentence one adopted in Finding 4, the remainder rejected as a conclusion of law. Adopted in Finding 7. Adopted in Finding 13. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 15. Rejected as irrelevant. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 16. 28 - 30. Rejected as unnecessary, because the Division's policy is derived from the language of the act and is consistent with the decision in Associated Mortgage Investors v. Department of Business Regulation, 503 So.2d 379 (Fla. 1st DCA 1987). COPIES FURNISHED: Calvin L. Johnson, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Matthew Carter, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violation of Sections 475.25(1)(a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florid Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent Alfred Landin is now a registered real estate salesman and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 7).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwim who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James R. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for its. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to ,sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that thee property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowners Service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, In fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel, Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent Alfred Landin be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J.R. Parkinson, Esquire and Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Stanley M. Ersoff, Esquire 1439 West Flagler Street Miami, Florida 33135
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, Janis K. Hinsch (Hinsch), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0350063. Hinsch was the vice president and sole qualifying broker of Respondent, Huntco of Marco, Inc., a Florida corporation, licensed as a real estate broker in the State of Florida, license No. 0222987. During all times material hereto Huntco was the owner of the Sea Oats Beach Club, a condominium located in Charlotte County, Florida. Huntco marketed the Sea Oats Beach Club under a time-share plan. The gravamen of the complaint in this case involves the sale of eight time-share units during the period of April 9, 1983 through August 11, 1983. The purchase agreements executed by the eight purchasers in question provided in pertinent part: 8. CLOSING AND TITLE At closing, . . . Seller shall deliver its warranty deed conveying fee title to the Unit Week(s) to Buyer under a plan of Interval Ownership as defined in the Declaration of Condominium . . . . The closing will be . . . not later than one (1) year from the date of this Agreement. Petitioner contends Hinsch and Huntco are guilty of violating Section 475.25(1)(b), Florida Statutes, because the deeds for the eight units were not delivered to the clerk of the court for recording within one year of the date the purchase agreements were executed. Petitioner's assertion is ill-founded. The deeds for each of the units in question were executed within 30 days of the date the purchase agreements were executed. The deeds, together with other pertinent documents, were delivered to a title company for closing and for issuance of an owner's title insurance policy. The title company, subsequent to closing, was to have forwarded the deed to the clerk for recording and, upon return of the recorded deed by the clerk, to have delivered the deed to the purchaser(s). However, the title company, through a clerical error, failed to deliver the deeds for these eight units to the clerk for recording. Respondent, upon receiving notice that purchasers had not received their deeds, immediately inquired of the title company to discern the reason, the error was discovered, and the deeds were promptly recorded. Admittedly, the deeds were not recorded within one year of the date the purchase agreements were executed, but the purchase agreements only required that the closing be held within one year. There is no evidence to suggest that the deeds in question were not delivered to the title company, or that these transactions were not closed, within one year of the date the purchase agreements were executed.
Findings Of Fact The Respondent has been a registered real estate salesman with the Florida Real Estate Commission from February 17, 1967, until the present. The Respondent was indicted by a federal grand jury in the Middle District of Florida and charged with devising and intending to devise a scheme and artifice to defraud certain named persons and entities by use of the mails and further charged with the commission of an overt act in furtherance of said scheme. U.S. v. Hawk, Case No. 68-47-ORL CR, U.S. District Court for the Middle District of Florida, Orlando Division. On October 11, 1968, the Respondent pled guilty to the offense of devising a scheme to defraud others and executing said scheme by use of the United States Mail and by telephone in violation of Title 18, Section 1341, U.S.C. The Respondent was sentenced to four years' imprisonment upon his plea of guilty. He served 17 months of his sentence before being paroled, which parole ended in October, 1972. The charge to which the Respondent pled guilty and was found guilty did not, in any manner, involve the sale of real property. Since his conviction and release from prison, the Respondent has worked as a real estate salesman. The Florida Real Estate Commission has shown no complaint lodged against Mr. Hawk regarding his registration as a real estate salesman from February 17, 1967, until the present, other than the complaint and allegations presently being considered. There has been no showing that Nelson F. Hawk engaged in any conduct warranting suspension of his registration as a real estate salesman other than that conviction heretofore referred to in 1968. Nelson F. Hawk is guilty of a crime against the laws of the United States involving fraudulent dealing as evidenced by the certificate of Wesley R. Thies, Clerk, United States District Court for the Middle District of Florida.
Findings Of Fact The Petitioner is the Department of Professional Regulation charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and the Rules promulgated pursuant to the statutes. At all times material to the Administrative Complaint, Respondent David Knaus was licensed as a certified general contractor in the State of Florida, holding License No. CG CO35153. At all times material hereto, Respondent's licensure was registered at the Construction Licensing Board as the qualifying agent for Homes of Port Charlotte, Inc. The primary operating officers of said corporation were Respondent and Barclay Ryder. As to Case No. 105157 On or about April 17, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with John W. Gunn to construct a house at 2474 Colon Lane, Port Charlotte, Florida, for the amount of $91,291.00. After completion of the house, a certificate of occupancy was issued. The Respondent provided the customer with a final contractor's affidavit, which claimed that all subcontractors and suppliers were paid. Thereafter, a number of claims of lien were filed against the property, the claims were in excess of $10,000 for work and/or supplies for which the general contractor had already been paid by the escrow agent, Florida State Land Title Company. Said claims were paid off by the owners of the property. Neither the Respondent, nor the company, had the liens removed within 30 days after the date of the filing of the liens. As to Case No. 105718 On or about September 28, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with Wallace and Pamela Nichols to construct a house at 116 Peckham Street Southeast, Port Charlotte, Florida, for the amount of $90,027.00. After virtual completion of the construction, Homes of Port Charlotte received all of the money due them under the contract. The Respondent provided the Nichols with final contractor's affidavit which claimed that all subcontractors and suppliers were paid. Thereafter, a number of claims of liens were filed against the property for services rendered and/or materials supplied by subcontractors during the construction of said home, but remained unpaid. The general contractor had already been paid for said supplies and/or services on previous draws by Naples Federal, the lending institution. The Nichols had to pay approximately $5,000.00 additional in order to complete unfinished items and/or to bring the house to a state of completion called for in the original contract and to satisfy the liens. Neither the Respondent, nor the company, had the liens removed within 30 days after the date of the filing of the liens. As to Case No. 105774 On or about April 29, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with Victor and Angelina Wasilow to construct a house at 7234 Bargello Street, Englewood, Florida, for the amount of $54,207.90. After completion of the construction of the home, the Respondent furnished the Wasilows with final contractor's affidavit which claimed that all subcontractors and suppliers were paid. Thereafter, a number of claims of lien were filed by subcontractors for services rendered and/or materials supplied in the construction of the home, but remained unpaid. The general contractor had already been paid for said supplies and/or services by the escrow agent, Florida Land Title Company. The owners, Mr. and Mrs. Wasilow, had to pay extra for the completion of the cesspool, which was to have been included in the original contract, and incurred attorney fees in the amount of $300.00 for legal advice associated with the problems. Neither the Respondent, nor the company, had the liens removed within 30 days after the date of the filing of the liens. As to Case No. 016937 On or about April 20, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent is the qualifying agent, contracted with Chris and Lorraine D'Angelo to construct a house at 581 Queens Avenue, Port Charlotte, Florida, for the amount of $70,758.00. When the house was approximately 60 to 65 percent complete, construction stopped, and the Respondent's company abandoned the project due to the company's declaration of bankruptcy. The D'Angelos subsequently finished construction of the house on their own. However, a claim of lien was filed by Nicks Title Company in the amount of $846.12 for work that had been ordered by the general contractor and performed prior to the general contractor leaving the job. The D'Angelos in completing their house according to the original specifications were required to spend approximately $10,000.00 in additional funds. As to Case No. 107168 On or about March 28, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent was the qualifying agent, contracted with Alfred and Adele Schmidt to construct a house at 1130 Birchcrest Boulevard, Port Charlotte, Florida, for the amount of $84,932.00. In the early part of August, 1988, when the contractor had drawn all of its money due under the contract, with the exception of $7,542.50, the Schmidts attempted to move into their home only to find the house approximately only 60 percent complete and the job abandoned. The Schmidts recommenced construction of the house on their own and expended the remainder of the money left in the escrow account (about $9,000.00) and an additional $25,622.00 in order to complete the house according to the original contract specifications. Subsequently, a number of claims of lien were filed on their property by subcontractors for services performed and/or supplies furnished during the construction of the house, which work or supplies had already been paid for to the general contractor by the Schmidts. Neither the Respondents, nor the company, had the liens removed. As to Case No. 110301 On or about April 15, 1987, Homes of Port Charlotte, Inc., the entity for which the Respondent is the qualifying agent, contracted with Louis and Phyllis Silva to construct a house at 447 Carolyn Street, Port Charlotte, Florida, for the amount of $74,400.00. After the contractor had received all monies due under the contract, including payment for all extras ordered, a number of claims of lien were filed against the property by subcontractors and/or suppliers for services performed and/or supplies furnished during the construction of the home. The general contractor had already received payment for said supplies and services. The Respondent had provided the customer with final contractor's affidavit claiming all subcontractors and suppliers had been paid. Neither the Respondent, nor the company had the liens removed within 30 days after the date of the filing of the liens. As to All Cases On June 1, 1990, after trial on a thirty count Amended Information before the Circuit Court for Charlotte County, Florida, a jury returned a verdict of guilty as to eight counts of grand theft, a felony, and nine counts of misuse of monies, a misdemeanor. Each count related to the practice of contracting. Motions to set aside the verdict are pending. A presentence investigation was ordered by the presiding judge, and disposition and sentencing was scheduled for a date subsequent to the date of the formal hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Section 489.129(1)(l), Florida Statutes, as to Case Nos. 105157, 105718, 105774 and 110301; violating Section 489.129(1), Florida Statutes, as to Case Nos. 105157, 105718, 105774, 016937 and 107168; violating Sections 489.129(1)(m) and 489.129(1)(j), 489.119 and 489.105(4), Florida Statutes, as to Case Nos. 105157, 105718, 105774, 016937 and 107168; and that Respondent be found not guilty of violating Section 489.129(1)(b), Florida Statutes. FURTHER RECOMMENDED that a final order be entered revoking Respondent's contractor's license in accordance with disciplinary guidelines set forth in section 21E-17.001 (9), (10), and (19), Florida Administrative Code. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. Daniel M. Kilbride 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 1st day of February, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,8,9 and 10 (in part) Rejected as not supported by clear and convincing evidence: paragraph 10 (in part) Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,5,11 (#105157) 1,2,3 (#105718) 1,2, (#105774) 1,2,3,4 (#106937) 1,2 (#107168) 1; (#110301) 1,2 Rejected as against the greater weight of the evidence: paragraphs 4,8,10, (#105157) 4, (#105718) 3 (#105774) 5, (#106937) 3, (#107168) 2; (#110301) 3 Rejected as not relevant: paragraphs 6,7,9 Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McGill, Esquire 1101 South Tamiami Trail Suite 101 Venice, FL 34285 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202
