Findings Of Fact The Petitioner applied to the Board of Real Estate for licensure as a real estate saleswoman on or about July 28, 1980. After due deliberation the Board informed the Petitioner, on October 31, 1980, that she had been denied licensure due to her answers to question 6 of the application which revealed that she had a criminal record involving an arrest for larceny. The Petitioner exercised her rights to a formal proceeding pursuant to Chapter 120.57, Florida Statutes, and appeared at the hearing pro se, without witnesses, being permitted to testify on her own behalf. The Petitioner admitted that in 1977 she had been arrested and convicted in Leon County for the crime of grand larceny by embezzlement. She was employed as Manager of a Burger King restaurant at the time and was, in effect, convicted of embezzling bank deposits for the restaurant. The Petitioner pled not guilty to the charge but was found guilty pursuant to jury verdict. Upon her conviction she was sentenced to six months in the Florida State Prison at Lowell, Florida, followed by four years probation. The Petitioner remains on probation for that conviction and is making restitution payments to replace the money stolen. She was unable to testify precisely when her probationary period will expire, but it is to be approximately in October, 1981, and would have been sooner had she not fallen in arrears in making restitution payments. She is now making her payments currently and regularly and there is no other impediment to her being released from probation once full restitution is made. During the course of her cross-examination the Petitioner also admitted that she had been arrested by the Tallahassee Police Department in 1972 for the crime of larceny and further admitted that she had not disclosed this arrest on her application with the Board of Real Estate. The Petitioner indicated she had forgotten about the arrest and she felt that it was so remote in time as to not be pertinent to the application process. She was found guilty of the charge of larceny in connection with the 1972 arrest, the sentence being payment of a fine and restitution to the victim. Subsequent to her release from prison, the Petitioner has married, and is the mother of two young sons. She is currently employed by the Polk County School Board as a teacher's aid for disabled children. In order to qualify for this employment position she had to have a high school degree and sufficient college credit hours to meet the requirements for employment as a teacher's aid. Prior to this job she was employed in Polk County as a substitute teacher. The Petitioner is a member of a church and attends regularly and her general demeanor and the overall tenor of her testimony demonstrates that she has matured significantly since the unfortunate criminal behavior in which she engaged end has achieved a stable family life and employment pattern. She has demonstrated significant maturity of character since the time of the arrest and conviction, measured by the fact that she has accepted and successfully discharged the responsibility of marriage, the rearing of two children, and the concomitant duties and responsibilities of employment for the partial support of her family.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, as well as the candor and demeanor of the witness, it is RECOMMENDED that a final order be entered by the Board of Real Estate denying the application of Earnestine D. Davis for licensing as a real estate saleswoman at this time, but that she be given prompt and beneficial consideration for licensure upon appropriate reapplication when her current criminal probationary status has terminated. DONE AND ENTERED this 7th day of May, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1981. COPIES FURNISHED: Earnestine D. Davis 880 Parkham Court Bartow, Florida 33830 Jeffrey A. Miller Assistant Attorney General Department of Legal Affairs Office of Attorney General Tallahassee, Florida 32301 Nancy Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 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 June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the Respondent's real estate license should be disciplined because the Respondent has been found guilty of a crime which directly relates to the activities of a licensed real estate salesman or involves moral tupitude or fraudulent or dishonest dealing.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times pertinent to the charges, the Respondent was a licensed Florida real estate salesman having been issued license number 0400199 in accordance with Chapter 475, Florida Statutes. The license issued during all times material to the facts alleged in the Administrative Complaint was as salesman, % Emerson Realty Group of Volusia County, Inc., 322 Silver Beach Avenue, Daytona Beach, Florida 32018. The Respondent, in the United States District Court, Middle District of Florida, entered a plea of guilty to one count of filing a false tax return, a felony, whereupon on October 17, 1988, the Respondent was sentenced to a period of probation and fined $2,500. Via letter dated October 31, 1988, the Respondent's attorney timely notified the Petitioner of the felony charges, plea and disposition. In mitigation, Respondent testified and his exhibits indicate that Respondent's former wife was the office manager and book keeper until 1983. Respondent did not prepare the income tax return for which he entered his plea, his former wife did so. He relied on his former wife's competency and goodwill in preparing all documents relating to his main business, the pest control business. She reported the errors on his income tax returns to the Internal Revenue Service out of spite and greed (in hopes of collecting a 10% reward). The basis for the conviction of filing a false tax return did not involve a real estate transaction. Respondent has no prior convictions for any other crime.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondent William Lea be found guilty of having violated Subsection 475.25(1)(f), Florida Statutes (1987) as charged in the Administrative Complaint. It is further: RECOMMENDED that Respondent William Lea receive a reprimand, an administrative fine of $400.00. DONE and ENTERED this 27th day of June, 1989 in Tallahassee, 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 27th day of June, 1989. 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 Recommended Order: Paragraphs 1 - 3. Accepted Respondent's Proposed Recommended Order: Respondent did not submit separate findings of fact. COPIES FURNISHED: STEVEN W. JOHNSON, ESQUIRE SENIOR ATTORNEY DPR - DIVISION OF REAL ESTATE 400 W. ROBINSON STREET P.O. BOX 1900 ORLANDO, FLORIDA 32802 HARRISON SLAUGHTER, ESQUIRE 56 EAST PINE STREET, SUITE A ORLANDO, FLORIDA 32801 DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE 400 W. ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 KENNETH E. EASLEY, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE 1940 NORTH MONROE STREET SUITE 60 TALLAHASSEE, FLORIDA 32399-0792
The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material to this proceeding, the Respondent Bruce R. Dowell was licensed as a real estate salesman in the State of Florida and presently holds license number 0022658. The Respondent is employed as a real estate salesman by Allen Pacetti, a licensed real estate broker doing business as Pacetti Realty Company, 49 Cordova Street, St. Augustine, Florida 32084. Mr. Pacetti has a policy within his office of permitting his real estate salespersons to assist members of their immediate families with real estate transactions without involving the office or notifying the broker. Accordingly, the Respondent did not inform Mr. Pacetti of his efforts to rent his daughter's home. The Respondent's daughter and son-in-law, Mr. and Mrs. William Kasperski, owned a residence next door to the Respondent at 202 Coquina Avenue, St. Augustine, Florida, which they rented while they were out of the state for extended periods of time. The home would be shown to prospective tenants by either Mr. Dowell, his wife or other family members depending upon who was home when prospective tenants arrived. The rental property had been leased to at least two other tenants prior to the incident which prompted the instant complaint. In March, 1980, the Respondent placed an ad in the general classified section of the St. Augustine Record advertising the Kasperski home for rent. The advertisement was seen by a co-worker of Mr. and Mrs. G. David Petty who inspected the home and recommended it to them. Mr. Petty and his wife Frances Petty subsequently examined the home and orally agreed to a monthly rental of $265. Neither the Petty nor the Respondent requested or offered to sign a written lease. The Respondent informed the Petty that the owner was not expected to return to Florida for at least a year. The Pettys made an initial payment to the Respondent of $85 which represented a pro-rata share of the March rent. The Respondent would collect the checks from the Pettys and forward them to the Kasperskies who at the time were residing in Pennsylvania. The Respondent did not receive a fee, commission or any other renumeration in return for renting his daughter's home. During the course of the Petty three-month occupancy, the Respondent became concerned over the condition of the home and alterations which were made by the Pettys without prior authorization from the owners. The Respondent conveyed his concerns over the condition of the property to his son-in-law who in turn contacted an attorney in Pennsylvania, Louis D. Poulette. Mr. Poulette informed the Pettys by letter that the lease was terminated by the owners effective July 31, 1980. The Pettys vacated on July 15, 1980, and were refunded the balance of their rent payment for July, 1980. On August 1, 1980, the Respondent readvertised the property and it was rented in September, 1980 for $265 per month.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Real Estate, enter a final order dismissing the Administrative Complaint filed against the Respondent, Bruce R. Dowell. DONE and ORDERED this day 3 of February, 1982, in Tallahassee, Florida. SHARYN L.SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Robert F. Spohrer, Esquire ZISSER ROBISON SPOHRER WILNER & HARRIS, P.A. 303 Liberty Street Jacksonville, Florida 32202 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact On October 3, 1975, Respondent filed an application with Petitioner for registration as a real estate broker (Stipulation, Petitioner's Exhibit 2). That said application contained therein Question 8 which is set forth in paragraph 2 of the Amended Complaint and to which Respondent answered "No." (Stipulation, Petitioner's Exhibit 2.) That thereafter the application was approved and the Respondent subsequently received his registration as a real estate broker and has been continuously registered the Petitioner as a broker since December 22, 1975 (Stipulation.) That at the time of the execution of the application, as aforesaid, Respondent'S answer to Question 8 was incorrect in that he failed to reveal, disclose and fully explain a Complaint filed against him on August 6, 1973, in the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, by one Kenneth Beard, an individual, which complaint alleges false representations on the part of the Respondent in a business transaction. A judgment of the aforesaid Circuit Court in the above-mentioned action was in the process of appeal at the time Respondent filed his application for registration as a real estate broker (stipulation.) Respondent testified at the hearing substantially as follows: After the civil action had been filed against him, he sought the advice of counsel who informed him that the complaint therein was defective as a matter of law. He was therefore of the opinion that there was not a viable suit against him at the time he filled out his application, and thus was not attempting to mislead or hide any facts from the Petitioner. He also felt that, since he had not, in fact, committed any fraud or misrepresented any matters to the purchaser of the business in question, a negative answer on the question in the application was justified. However, upon reflection at the hearing, he conceded that, probably he had misread the question and misconstrued its meaning. Respondent's good reputation for truth and veracity in the community and in his business dealings was attested to by past officials of the Clearwater, Largo, Dunedin Board of Realtors (Testimony of Merhige, Blanton).
Recommendation That the Complaint against Respondent, William D. Folz, be dismissed. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard B. Moritz, Esquire 801 West Bay Drive Suite 704 Largo, Florida 33540
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 has been a licensed real estate broker salesman in the State of Florida at all times material hereto having been issued license number 0158288 in accordance with Chapter 475, Florida Statutes. On June 10, 1985 a Recommended Order was entered by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118 concerning Respondent, which recommended that "a Final Order be issued suspending Respondent's license for a period of two (2) years and imposing an administrative fine in the amount of one thousand dollars ($1,000)." On July 16, 1985 the Florida Real Estate Commission entered a Final Order imposing the penalty against Respondent which had been recommended by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118. The Final Order provided further that, "This Order shall be effective thirty (30) days from the date of filing, with the Clerk of the Department of Professional Regulation." The Final Order was filed with the Clerk of the Department of Professional Regulation on July 24, 1985. To date, Respondent has not paid the $1,000 fine imposed by the Florida Real Estate Commission in Division of Administrative Hearings Case Number 85- 0118. Petitioner contends that Respondent was required to pay the $1,000 fine within thirty (30) days of entry of the Final Order, referenced above. Rule 21V-10.31, Florida Administrative Code, imposes a thirty-day time limit for the payment of fines imposed by the Florida Real Estate Commission from the date of imposition by order of the Commission.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license-number 0158288. DONE AND ENTERED this 24th day of November, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0989 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 3. Adopted in Findings of Fact 3 and 4. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Roy Ahringer 232 Harmony Avenue Lake Placid, Florida 33852 Harold Huff Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact George A. Heyen is a duly registered real estate salesman with the Florida Real Estate Commission, and was so registered and has been so registered continuously since October 1, 1972, as evidenced by Petitioner's Exhibit number 1. While serving in the capacity as a real estate salesman, the Respondent entered into a listing agreement with one Thomas S. Bowers and Brenda L. Bowers, his wife. This agreement was drawn on December 11, 1973 and is Petitioner's Exhibit number 4. On February 6, 1974, a purchase and sell agreement was drawn up by the Respondent and entered into between Maria A. Hindes and the Bowers. This purchase and sell agreement is Petitioner's Exhibit number 3. This contract of February 6, 1974 was submitted to Molton, Allen and Williams, Mortgage Brokers, 5111 66th Street, St. Petersburg, Florida. The contract, as drawn, was rejected as being unacceptable for mortgage financing, because it failed, to contain the mandatory FHA clause. When the Respondent discovered that the February 6, 1974 contract had been rejected, a second contract of February 8, 1974 was prepared. A copy of this contract is Petitioner's Exhibit number 5. The form of the contract, drawn on February 8, 1974, was one provided by Molton, Allen and Williams. When, the Respondent received that form he prepared it and forged the signature of Mr. and Mrs. Bowers. The explanation for forging the signatures as stated in the course of the hearing, was to the effect that it was a matter of expediency. The expediency referred to the fact that the parties were anxious to have a closing and to have the transaction completed, particularly the sellers, Mr. and Mrs. Bowers. Therefore, in the name of expediency the signatures were forged. Testimony was also given that pointed out the Bowers were very hard to contact in and around the month of February, 1974, and some testimony was given to the effect that the Bowers made frequent trips to Ohio, but it was not clear whether these trips would have been made in the first part of February, 1974. The Bowers discovered that their name had been forged when they went to a closing on April 11, 1974. They refused to close the loan at that time. On April 24, 1974, a new sales contract was followed by a closing which was held on April 26, 1974 and a copy of the closing statement is Petitioner's Exhibit number 6. The Respondent has received no fees or commissions for his services in the transaction and there have been no further complaints about the transaction. Prior to this incident, the Respondent, George A. Heyen, was not shown to have had any disciplinary involvement with the Florida Real Estate Commission and has demonstrated that he has been a trustworthy individual in his business dealings as a real estate salesman.
Recommendation It is recommended that the registration of the registrant, George A. Heyen, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George A. Heyen c/o Gregoire-Gibbons, Inc. 6439 Central Avenue St. Petersburg, Florida 33710
The Issue The issue in Count I is whether Section 475.42(1)(j) absolutely prohibits a broker or salesman from filing a lien or other encumberance against real property to collect a commission. The issue in Count II is whether the Respondents violated a lawful order of the Commission by failing to remove the motion of lis pendens contrary to Section 475.25(1)(e), Florida Statutes.
Conclusions Section 475.42(1)(j), Florida Statutes, provides as follows: "No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose." Clearly the Respondents placed or caused to be placed the notice of lis pendens in question. A notice of lis pendens is clearly an "other writing which purports to effect the title of, or encumber, any real property." The Florida Real Estate Commission argues that this provision is an absolute bar to the filing of any lien for the purpose of collecting a commission. The Respondents argue that this provision is not an absolute bar and there are circumstances when a broker may file a notice of lis pendens. They also assert that the notice of lis pendens falls within the exception because the Circuit Court refused to remove the notice of lis pendens upon motion of the property owner. Lastly, it is argued that the notice was filed by counsel for the Respondents in good faith on an action at law and that this mitigates their action even if there was a violation. The language of Section 475.42(1)(j) cannot be read to absolutely prohibit a broker from obtaining a lis pendens. When given this construction, it effectively denies brokers and salesmen access to the courts for redress of injury as provided in Article I, Section 21 of the Florida Constitution. Section 475.42(1)(j) is a complex provision which is subject to two interpretations. One interpretation would prohibit a broker or salesman from filing an encumberance if the same were known to him to be false, void or not authorized by law; if not authorized to be upon the public records; if not executed in the form entitling it to be recorded; if the execution of recording thereof has not been duly authorized by the owner of the property; if maliciously (filed); if for the purpose of collecting a commission, if to coerce payment of money to the broker or salesman or other person; or if for any other unlawful purpose. This first interpretation would consider each clause a separate limitation on filing an encumberance. The facts analyzed under this interpretation do not show any knowledge by Respondents that the lis pendens was false, void or not authorized to be filed or not on a form entitling it to be recorded. The facts do not show that Respondents filed the lis pendens maliciously, for the purpose of collecting a commission, or for the purpose of coercing payment of money to the broker or salesman, or for any unlawful purpose. The nature of lis pendens would not require the owner's authorization of execution for recording. The facts show that the lis pendens was filed by Respondent's attorney in conjunction with a suit brought by the Respondents against Perrin. The record also shows that the circuit court determined that the lis pendens was recordable when it denied the motion to remove it. The notice of lis pendens was neither malicious, coercive or for the purpose of collecting the commission. The notice was for the purpose of perfecting the claim against the property for execution of the judgment if the Respondents prevailed in the suit. Executing on a judgment is different from collecting the commission or coercing payment. Under this interpretation the Respondents have not been shown to violate Section 475.42(1)(j). A second interpretation would read the clause, ". . . if the same is known to to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been authorized by the owner of the property. . ." as the first of two criteria to be met to establish a violation. The second criteria would consist of proof that the encumberance was recorded maliciously or for the purpose of collecting a commission, or to coerce payment of money to the broker or salesman, or for any unlawful purpose. Again the facts do not show there was knowledge by the Respondents of the falsity, or impropriety of the notice of lis pendens, as stated above. Again the facts show that the lis pendens was filed in conjunction with a law suit pending between the Respondent and the property owner, and that the court before which the action was pending refused to remove it. The file of the notice by Respondent's counsel was a legitimate method of perfecting the Respondent's claim should they prevail and obtain judgment. The facts do not indicate that the filing of the notice was malicious, coercive or for the purpose of collecting a commission. Under either interpretation, Respondents did not violate the statute. COUNT II The Respondents are charged in Count II with violation of Section 475.25(1)(d), Florida Statutes, which provides that the registration of a registrant may be suspended for up to two years for violation of a lawful order of the Commission. Clearly, the facts reveal that the Respondents had a substantial interest involved in the litigation with Perrin. The order, of the Florida Real Estate Commission to remove the notice of lis pendens substantially affected their rights in this litigation. Therefore, any final order directing Kay to remove the notice of lis pendens should have issued after an opportunity for hearing pursuant to Section 120.57, Florida Statutes. The evidence reveals that the Florida Real Estate Commission did not notice a hearing under Section 120.57, and therefore its order cannot be "lawful." The provisions of Section 475.25(1)(d) require that registrants not violate lawful orders. The Respondents have not violated Section 475.25(1)(d), Florida Statutes, by not removing the notice of lis pendens as directed by the order of the Florida Real Estate Commission.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken against the Respondent, Sam Kaye and Sam Kaye, Inc. DONE and ORDERED this 23rd day of September 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William E. Boyes, Esquire Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A. Post Office Box 3466 West Palm Beach, Florida 33402
