Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Charles Vincent Suter (Suter), is a licensed real estate salesman having been issued license number 0502107 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesman for Tom Roderick Realty, 2440 Palm Ridge Road, Sanibel, Florida. He has been licensed as a salesman since September 1987. Through a mutual friend, Mary Jane Briney, Suter was introduced in 1988 to Norma Winkler, a resident of Indianapolis, Indiana, who occasionally visited Sanibel Island near Fort Myers on vacation during the winter months. Winkler was interested in renting a three bedroom condominium on the beach in January and February 1989. Briney recommended to Winkler that she rent a unit at an apartment/condominium complex known as Janthinia located on Sanibel Island and that she use respondent as her rental agent. Relying on Briney's recommendation, Winkler agreed to rent the unit and telephoned Suter in September 1988 and requested that he make reservations for her. Although Suter did not normally handle rental transactions, he agreed to assist Winkler and thereafter made reservations with Executive Services, Inc. (ESI), a corporation which managed various units in the Sanibel area including Janthinia. On September 21, 1988, Suter sent Winkler a letter confirming her reservations for Unit 2A at Janthinia with an arrival date of January 26, 1989 and a departure date of February 23, 1989. The total rent, including tax, was $7,091.23. Suter also advised Winkler that she needed to furnish a 10% deposit, or $709.12, within ten days to secure the reservation. On September 30, 1989, Winkler sent a check in the amount of $709.23 made payable to Tom Roderick Realty. The check was deposited into the firm's escrow account the same day. On October 4, 1989, the realty company issued a check in the same amount to ESI as a reservation deposit for Winkler. After the deposit was forwarded to the real estate firm, Winkler changed her date of arrival in Florida from January 26 to January 20 but kept her date of departure the same. On December 9, 1989, ESI confirmed Winkler's reservation for those dates and sent a 10% commission to the realty company. The rental fee was shown as $8,395.42 less the deposit, or a total amount still due of $7,686.30. On January 30, 1989, Suter was paid $352.75 as his share of the commission. Approximately a week before her scheduled arrival, Suter telephoned Winkler and advised her the total amount due was $8,686.30, or $1,000 more than was reflected on ESI's statement. However, Winkler had requested that Suter furnish her with a VCR, liquor, piano and other items so Suter estimated the total bill would be approximately $1,000 greater than the rent still due. On January 20, 1989, Winkler, her sister, niece and a neighbor flew from Indianapolis to Fort Myers. They were met at the airport by Suter and two mutual friends. That same morning, and before Winkler arrived, Suter received by mail Winkler's check in the amount of $8,686.30. When Suter received Winkler's check, he immediately deposited it in his own checking account and not the firm's account. The check was made out to Suter, and not the realty firm, since Winkler had suggested that she make it out in that manner. Upon depositing the check, Suter immediately asked the bank to verify if it was good, and after receiving assurances that it was, he went across the street and wrote a $7,686.30 check to ESI to pay for Winkler's rent. When Winkler, Suter and other members of the group reached Janthinia, Suter advised Winkler that he owed her a refund. Winkler told him not to worry, that she would settle up later. She then had Suter purchase a quantity of liquor and obtain a VCR for her apartment. During one of the social gatherings attended by Winkler and Suter a few weeks later, the two had a falling out. At that point, Winkler telephoned Suter's broker and told him she was due money from Suter. On February 7, the broker confronted Suter around 4:00 p.m. regarding Winkler's allegation. Suter readily acknowledged that Winkler still had money due and that he would immediately pay her. He also acknowledged that the money had been placed in his own bank account rather than the broker's escrow account. Although Suter volunteered to hand carry a check to Winkler that afternoon, she insisted he pay it to the broker who would then write her a check. Suter did so within the hour and Winkler later received a check for $1,000 from the real estate firm. The broker then made an inquiry with the Division concerning Suter's actions, and upon advice from a Division attorney, filed a complaint against Suter. Winkler was described by a longtime friend as a 1,dangerous person", a "troublemaker", and someone who had caused problems for many persons over the years with various types of accusations, most of which were unfounded. Suter denied that he knew it was unlawful to deposit the rent check in his personal account since he considered the transaction as a favor for a friend. He blamed the entire episode on Winkler who became mad at him for paying too much attention to a young widow, and not Winkler, at a dinner party in early February 1989. There was no intent on the part of Suter to use the deposited funds in an illicit manner or to defraud his broker and Winkler. Even so, Winkler's check should have been deposited in the broker's escrow account. There is no evidence that Suter has ever been disciplined by the Division on any prior occasion. Further, Suter's initial reluctance to give a statement to an investigator was founded on the valid reason that he first wished to consult an attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts II, III, and IV of the administrative complaint and that Count I be dismissed with prejudice. It is further RECOMMENDED that respondent be given a $500 fine to be paid within thirty days from date of order. DONE and ENTERED this 8th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1990. APPENDIX Petitioner: 1-3. Partially adopted in finding of fact 1. 4. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 6 and 8. 9-10. Partially adopted in finding of fact 2. 11. Rejected as being unnecessary. 12-13. Partially adopted in finding of fact 6. 14. Partially adopted in findings of fact 7 and 8. 15-16. Partially adopted in finding of fact 10. 17-18. Partially adopted in finding of fact 12. 19-21. Partially adopted in finding of fact 10. Respondent: 1-2. Partially adopted in finding of fact 1. Partially adopted in finding of fact 2. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 5 and 6. 8-9. Partially adopted in finding of fact 5. 10-11. Partially adopted in finding of fact 8. Partially adopted in finding of fact 7. Partially adopted in finding of fact 9. 14-15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 10. Note - Where findings have been partially used, the remainder has been rejected as being cumulative, unnecessary, subordinate, irrelevant or not supported by the more credible and persuasive evidence. COPIES FURNISHED: Steven W. Johnson, Esquire P. O. Box 1900 Orlando, FL 32802-1900 Jerrold S. Stern, Esquire P. O. Box 112 Sanibel, FL 33957 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Darlene Keller, Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900
The Issue The issues are whether Respondent is guilty of issuing checks from his escrow account without sufficient funds so as to constitute culpable negligence, breach of trust, misrepresentation, or concealment, in violation of Section 475.25(1)(b), Florida Statutes; failing to reconcile escrow accounts, in violation of Section 475.25(1)(e) and (k), Florida Statutes, and Rule 61J2-14.012, Florida Administrative Code; employing an unlicensed person, in violation of Section 475.42(1)(c), Florida Statutes; failing to maintain business records, in violation of Section 475.5015, Florida Statutes; and violating a lawful order of the Florida Real Estate Commission by failing to pay a citation within the required time, in violation of Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these allegations, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson in 1987. The following year, he became a licensed real estate broker, and he has remained a broker continuously since that time. From September 30, 1996, through January 30, 2000, Respondent was the qualifying broker of Express Realty and Investments, Inc. (Express Realty). At no time relevant to this case was Novellete Faye Hanse a Florida-licensed real estate broker or real estate salesperson. At all relevant times, Ms. Hanse was the office manager of Express Realty. Respondent formed Express Realty in 1995. Respondent was the sole director and president. Ms. Hanse's son was an officer of Express Realty from the time of its formation. Respondent met Ms. Hanse in 1991. She informed Respondent that she was a licensed mortgage broker. Respondent and Ms. Hanse agreed in late 1991 to form a joint real estate/mortgage broker operation in a single office. However, when Hurricane Andrew struck in 1992, Respondent, who has been a licensed general contractor since 1978, engaged exclusively in construction until 1995. Respondent formed Express Realty to pursue the prior plan of a joint real estate/mortgage broker operation. The two businesses occupied an office building owned by Ms. Hanse, who did not charge Respondent's business any rent. The address was 6306 Pembroke Road in Miramar. Express Realty served as an escrow agent in a contract dated May 9, 1999, for the sale and purchase of real property located at 6360 Southwest 23rd Street in Miramar. In this capacity, Express Realty, held various funds in escrow for the closing. For the closing, Express Realty issued two checks payable to the closing agent, totaling $19,169.08, and drawn on its escrow account. The checks, which are dated July 15, 1999, and signed by Ms. Hanse, bear the name, "Express Realty & Investments, Inc. Escrow Account" and bear the address 6306 Pembroke Road in Miramar. The bank failed to pay these checks due to insufficient funds. After receiving a complaint that Express Realty had failed to produce these escrow funds at the closing, Petitioner's investigator conducted an audit of Respondent's escrow account. At the audit, which took place the day prior to the day scheduled, the investigator found Ms. Hanse, but not Respondent, at the Express Realty office. Despite repeated requests on and after the day of the office visit, the investigator could not obtain relevant records from Ms. Hanse or Respondent concerning the real estate transaction for which Express Realty had issued escrow checks with insufficient funds. On August 23, 1999, the Florida Real Estate Commission issued a citation to Respondent at 6306 Pembroke Road in Miramar. The citation was served on Respondent within one week of the date of issuance. The $100-citation was for the failure to give the required disclosure or notice in a real estate transaction. The citation gave Respondent 30 days to contest the citation or 60 days to pay the citation. After the deadline, the investigator contacted Respondent and asked him about the citation. Respondent stated that he had forgotten about it. When Respondent still failed to pay the citation, the investigator called again, and Respondent stated that he had mailed the money, but it had been returned due to a faulty address. Respondent paid the citation approximately four months after it had been served on him. Shortly after Respondent belatedly paid the citation, Petitioner received another complaint concerning a contract for the sale and purchase of real property located at 850 Southwest 9th Avenue in Hallandale. In this transaction, Ms. Hanse represented herself to be a licensed real estate broker, showed the property to prospects, and accepted $5000 in escrow on behalf of Express Realty. In July 2000, Petitioner's investigator conducted an audit of Express Realty's escrow account. Again, the investigator was unable to find any documents by which he could undertake an independent reconciliation of the account or otherwise document the role of Express Realty in the subject transaction. At the hearing, Respondent claimed that he was unaware that Ms. Hanse had been conducting real estate business without his authority in the name of Express Realty. Although he admitted that she was an employee of Express Realty, he disclaimed any knowledge that she had removed him from the escrow account and otherwise taken over the management of the real estate broker company. However, Respondent could not explain why, after his claimed discovery of these misdeeds in the summer of 1999, he did nothing to prevent Ms. Hanse from continuing to use Express Realty as the means by which to conduct unlicensed real estate activities, as she did a few months later. Under the circumstances, Petitioner proved that Respondent was at all times aware that Ms. Hanse was conducting unlicensed real estate activities through Express Realty.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of the allegations contained in Counts I-IV and VI of the Amended Administrative Complaint, imposing a $5000 administrative fine, and suspending his license for three years; provided, however, if Respondent fails to pay the fine in full within 180 days of the final order, his license shall be revoked without further notice. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 9th day of July, 2002. COPIES FURNISHED: Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Dean Saunders, Chairperson Florida Real Estate Commission Division of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Carstarphen Watkins Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Wayne Wagie 11900 North Bayshore Drive, Unit No. 5 Miami, Florida 33181
Findings Of Fact Horacio A. Sotolongo (Respondent) is, and at all times involved in the Administrative Complaint was, a real estate broker registered with the FREC. Respondent was served with a copy of the Administrative Complaint and requested a hearing on the charges. Thereafter Respondent was notified of the time and place of the scheduled hearing by Registered/Certified Mail sent to the last address registered with the FREC. In May, 1974 Respondent negotiated the sale of a tract of land near Stuart, Florida between Hypoloxo Enterprises, Inc. seller, and Harry Soccorso, buyer. When the buyer was unable to close the transaction Respondent procured another buyer to whom the contract was assigned by the original buyer. Respondent told the seller that the new buyer (Enrique Torres) was the owner of the Florida Lumber Company located in Miami and that Torres could not speak English. The property was deeded to Torres in accordance with the contract. Subsequent thereto Torres became delinquent in his mortgage payments and quitclaimed the property back to the seller in satisfaction of the mortgage. At no time was Torres more than an employee of Florida Lumber Company and he owned no stock and held no corporate office in this company. Torres is fluent in English and was so fluent at the time of the transaction. On August 29, 1974 Respondent produced a potential buyer for property owned by Ft. Pierce Sand and Minerals, Inc. and presented an offer to purchase the property for $150,000 under terms specified in the offer. Although the contract recited an earnest money deposit by buyer of $5,000, only $2,500 was received by Respondent. The offer was not accepted by the seller and buyer demanded return of his deposit. Upon receipt of the check representing the earnest money deposit Respondent did not deposit it in his escrow account but cashed the check at the First National Bank and Trust Company of Tequesta on which the check had been drawn. At the time of receipt of the $2,500 deposit Respondent's escrow account balance was zero and there has been no activity in the account since that time. The $2,500 deposit was returned to the buyer some two months after the offer had been refused by the seller.
Findings Of Fact In February, 1974 Respondent was a registered real estate salesman working for John R. Finn, a registered real estate broker who operated a branch office at Lake Panasoffkee, Florida. Sam R. Perroni, the father of Respondent, was the office manager of this branch office and a registered real estate salesman. Sam Perroni obtained an open listing on a parcel of land with a house trailer affixed thereto from Eugene Bays, President of Bays Construction Company, the owner of the property. Bays agreed to pay the usual commission of 6 percent if the property was sold through the effort of Finn Realty. The list price of the property was $12,500. Mrs. Dorothy B. Johnson was shown the property by Respondent and thereafter the property was shown to her and her husband Joseph P. Johnson. Following this visit to the property the Johnsons inquired of Respondent if seller would take $12,000, to which he replied he didn't think so. Johnson then offered to pay Respondent $250 if he could persuade the seller to sell the property for $12,000. Respondent then called Eugene Bays in the Johnsons' presence to advise Bays that he had an offer of $12,000 for the property and asked if Bays would accept. When Bays called back to advise he would accept the offer, the contract was prepared by Sam Perroni, executed by the Johnsons, and delivered to the seller for acceptance on Monday, February 25. Receipt for Johnson's earnest money deposit of $250 was dated February 23, 1974 as was the contract. When Respondent told Sam Perroni of Johnson's offer he also advised him Johnson had offered him a bonus of $250. Sam Perroni advised Respondent that this bonus offer should be reported to the seller, and that he, Sam Perroni, would take care of it. The executed contract was returned to Perroni on February 26, 1974 by C. V. Watson, an officer in Bays Construction Company. At this time Perroni says he advised Watson of the bonus offer, but Watson recalls no mention of any such deal. Bays was never advised and would not have sold the property for $12,000 if he had known of the bonus offer. Sam Perroni told Respondent that the sellers had been made aware of the bonus offer. On March 2, 1974, while having dinner at Sam Perroni's, Johnson delivered to Respondent a check (Exhibit 6) for the $250 bonus agreed upon. On the day of the closing when Johnson indicated he was a little short of cash for closing costs, Sam Perroni gave him a check for $60 drawn on Finn Realty. Joseph Finn accepted the contract as the broker in this transaction and was never made aware of the bonus. Of the $720 commission on the sale, $360 went to Respondent. He also retained the $250 bonus. Upon advising Sam Perroni of the offer and acceptance Respondent was not further involved in the property or the closing. Sam Perroni assisted the purchaser in securing a $4,000 purchase money mortgage on the property and in correcting the deed to the property. He considers the services performed on behalf of the purchaser merited the bonus. Some time later Johnson, who thought he had purchased a 10' x 60' trailer learned the trailer was only 55' in length and complained to the Real Estate Commission. During the course of the inquiry on this complaint Johnson "mentioned" the bonus and the charges herein involved resulted.
Findings Of Fact During December of 1979, Fred H. Greene and his wife Marie L. Greene, decided to sell their residence located in St. Augustine, Florida. They listed the property with Respondent for a selling price of $55,000. Ms. Farrell holds a real estate salesman's license issued by the Florida Real Estate Commission. At all times pertinent to this case she has been so licensed. In January 1980, Ms. Farrell presented an offer to purchase the Greene's home for $50,000. They agreed to the offer and entered into a Contract for Purchase and Sale on January 15, 1980. In the course of discussing how to structure the financing of the sale, Ms. Farrell suggested that the Greenes take back a $6,000 second mortgage from the purchasers, Harry and Margaret Carlyle. Mr. Greene wanted to know from Ms. Farrell how much in proceeds he would receive when the parties closed the sale. She made the following calculations: $50,000.00 Purchase Price -$31,000.00 Greene's First Mortgage held by McCaughn $19,000.00 $19,000.00 -$ 3,562.00 ----------- $15,438.00 Commission and Closing Costs tary Stamps, Abstract Cost) (Documen- $15,438.00 +$ 8,490.00 (Six Thousand Dollars Second Mortgage ----------- and Interest thereon at 10 percent) $23,928.00 These computations are incorrect. At closing the $6,000 second mortgage was not to be part of the cash distribution to the Greenes, but, was a debit against the cash proceeds. The above incorrect calculation is the only error made by Respondent in discussing the sales transaction with the Greenes. At all times relevant the Greenes were properly apprised of all the other details concerning the sale of their house. The miscalculation was an honest mistake on the part of Ms. Farrell. There is no evidence that it was made with the intent of misrepresenting anything to the Greenes. Furthermore, there is no evidence that the miscalculation was made negligently. Neither Ms. Farrell nor the Greenes knew she had made a mistake until the closing which was held on March 24, 1980. During the closing Ms. Judy White who was the closing agent for St. Johns Title and Abstract Company began to explain to the Greenes their closing statement. Mr. Greene pushed the statement away and said, "That's not what I expected to get." The statement showed that his cash proceeds were $9,144.46. The statement properly reflected the $6,000 second mortgage as a sellers' debit. Ms. White explained the statement to Mr. Greene several times, but he still did not understand why the cash proceeds did not equal the amount computed for him by Ms. Farrell during their early discussion. Mr. Greene was visibly upset and directed several angry questions towards Ms. Farrell concerning the discrepancy. Because she felt a need to control the closing proceedings, Ms. White vigorously intervened and attempted to answer Mr. Greene's questions. Both of the buyers who were also present at the closing urged the Greenes not to sign the closing documents if they had any questions or doubts about the sale. During the closing Ms. Farrell was not aware of her original mistake in miscalculating the closing proceeds. Neither the Carlyles, Ms. Farrell or Ms. White did anything to influence Mr. Greene to execute the closing documents. During his heated discussion of the figures with Ms. White, Mr. Greene's wife repeatedly urged him to be quiet and execute the documents. At one point she said, "Oh sign it, you son-of-a-bitch." Finally Mr. Greene relented and executed all of the closing documents which were then recorded. The proceeds of the sale were then disbursed. Prior to executing the closing documents the Greenes were fully apprised of all significant financial facts concerning the sale of their home to Harry and Margaret Carlyle. During the foregoing transaction Ms. Farrell represented the Greenes as their real estate salesperson. She did not become aware of the mistake in her calculation of the closing proceeds, until she discussed the matter with her real estate sales manager after the closing. Ms. Farrell has an excellent reputation for competency in the real estate profession, both in St. Johns County where the above transaction took place and in Broward County where she is now employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Respondent, Mary P. Farrell be DISMISSED. DONE and RECOMMENDED this 18th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 18th day of October,1982
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 475, Florida Statute, and rules promulgated pursuant thereto. Respondent Dean O. Vanderwoude is now a real estate broker and was at all times material hereto a real estate salesman in Florida having been issued license number 0432878 in accordance with Chapter 475, Florida Statutes. On August 15, 1988, Respondent passed an examination to be licensed as a broker and was licensed as a broker on September 1, 1988. At all times material hereto, Respondent was licensed as a salesman and operated under the direction, control, or management of a licensed real estate broker, Anne M. Graffunder, and P.M.M. Properties under a 100 percent commission agreement whereby Respondent rented office space from his broker Graffunder. Respondent was affiliated with Graffunder and P.M.M. Capital, Inc., from approximately November 4, 1986, to October 16, 1987. When Respondent became affiliated with P.M.M., he had been licensed less than one year having first been affiliated with Security Realty Florida from December 20, 1985, to November 4, 1986. Under Graffunder's supervision, Respondent received little assistance in the form of guidance or instructions as to the methods and manner of presenting purchase contracts to sellers, little or no office support in the form of clerical assistance or technical training in the methods of handling escrow funds, no malpractice insurance coverage in the form of errors or omission's policy and no sales/training seminars. On approximately April 6, 1987, Respondent obtained a sales listing from Gary Alan Dahl (Dahl), a real estate investor, concerning real property, the record owner of which was Joe Belcik who had granted to Dahl equitable title to the property by Quit Claim Deed yet unrecorded. (Petitioner's Exhibit 2). The real property located at 2785 Adrian Avenue, Largo, Florida, had been purchased by Belcik from Dahl who had previously purchased the property from the Veteran's Administration. Respondent was aware of the condition of the title to the property listed by him for sale as he reviewed an abstract of the property. On April 6, 1987, prospective purchasers David and Donna A. Kiser (herein purchasers) viewed the real property at 2785 Adrian Avenue, Largo, Florida, and contacted Respondent at a telephone number observed on a "for sale" sign posted on the property. On that date, the purchasers executed a written offer to purchase the property, which offer was prepared by Respondent. (Petitioner's Exhibit 3). In conjunction with the offer to purchase, the purchasers tendered an earnest money deposit to Respondent, by cashier's check number 703917, dated April 10, 1987, in the amount of $100.00 made payable to P.M.M. Properties. The cashier's check was deposited into the escrow account of P.M.M. Capital, Inc., Sun Bank of Tampa Bay account number 265-014-3405 on April 15, 1987. The transaction closed on April 22, 1987. Following the closing, Graffunder issued a check number 140 written on the escrow account of P.M.M. Capital, Inc., Sun Bank/Southeast, account number 265-014-3405, dated April 22, 1987, made payable to Respondent in the amount of $100.00. The check was received by Respondent with Dahl's full permission and consent. Respondent represented to the purchasers that the seller, Dahl, had accepted their offer and desired to close the transaction immediately. Toward that end, Dahl came to Pinellas County from Sarasota County and executed all documentation necessary to effectuate the transfer on or before April 15, 1987. On April 15, 1987, Respondent met with the purchasers and had them sign all closing documents. This included execution of a closing statement and the Kisers requested an extension in order to obtain the $4,900.00 closing proceeds from Mrs. Kiser's father. On April 22, 1987, Mrs. Kiser presented the closing proceeds check and the transaction was finalized. That proceeds check and the $100.00 deposit check were both placed in Graffunder's operating account and pursuant to instructions from Dahl, Respondent received the closing proceeds as agent for Dahl. Dahl and the purchasers completed the closing by executing an Agreement for Deed on April 15, 1987. That agreement provides, in pertinent part, that the purchaser's would pay Dahl the total purchase price of $65,000.00 which included a down payment of $5,000.00 and monthly payments of $557.07 commencing May 1, 1987, and continuing for twenty-nine (29) months at which time the remaining principal balance of $60,073.18 would be payable in the form of a balloon payment. Dahl agreed to carry fire insurance for the full insurable value of the property and the purchasers were to have their names added to the policy as additional insureds. Additionally, both parties agreed that a Memorandum of Interest would be filed in the records of Pinellas County at the time of entering into the Agreement for Deed. Finally, the Agreement for Deed represented that there was a first mortgage in favor of Chrysler First and stated the condition that should the purchasers fail to make payments required of them within thirty (30) days after the same becomes due, the seller may, at his option, declare the contract null and void and all monies paid may be retained as full satisfaction and/or liquidated damages. Respondent did not provide the purchasers a warranty deed until approximately June 27, 1988, when he first became aware that Dahl had not given one to the Kisers. Respondent acknowledges that given the opportunity to reconstruct that transaction, he would have ensured that the seller provided a Warranty Deed to the purchasers as agreed in the Agreement for Deed. Respondent did not follow-up to ensure that a Memorandum of Interest was filed in the public records of Pinellas County as the parties agreed. Within months following the Riser's purchase of the subject property from Dahl, they became disenchanted with the property and ceased making payments under the agreement for Deed causing a large arrearage to accumulate and a subsequent mortgage foreclosure action was initiated.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: The Petitioner enter a final order finding that an administrative fine of $500.00 be imposed upon Respondent and his license number 0432878 be placed on probation for a period of sixty (60) days with the condition that the fine be payable to Petitioner within thirty (30) days of entry of the final order. RECOMMENDED this 29th day of June, 1989 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 June, 1989. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Brian E. Johnson, Esquire Brian E. Johnson, P.A. 7190 Seminole Boulevard Seminole, Florida 34642 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue The issues to be determined are whether Respondent violated sections 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2011), and Florida Administrative Code Rule 61J2- 14.009, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the state of Florida, pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate having been issued license number 3101946. During the time relevant to this case, Respondent was a sales associate affiliated with Bahia Real Estate ("Bahia"), a brokerage company owned by Raul and Ricardo Aleman, with offices located in Miami, Orlando, and Tampa, Florida. Respondent was employed in Bahia's Miami location. In 2010, Respondent acted as a sales associate on behalf of Michael Perricone for a real estate transaction involving the purchase of a condominium in the Blue Lagoon Towers ("Blue Lagoon") in Miami which was purchased as an investment. Mr. Perricone's sister, Francesca Palmeri, and her husband, Santo Palmeri, were present at the closing where they met Respondent for the first and only time. During the closing, which lasted approximately one hour, the Palmeris indicated to Respondent that they would be interested in making a similar purchase of investment property if another comparable condominium unit became available at Blue Lagoon. The Palmeris had no further interaction with Respondent until he contacted them at their home in Pueblo, Colorado, in 2011 to advise them of the availability of a condominium for sale at Blue Lagoon. On or about October 6, 2011, Respondent faxed a partially completed Bahia form "'AS IS' Residential Contract for Sale and Purchase" to Mrs. Palmeri for the Palmeris to use in making an offer on a condominium unit located at 5077 Northwest Seventh Street, Miami, Florida. Prior to forwarding the document to Mrs. Palmeri, Respondent wrote on the form the property description, the escrow agent name and address, the initial escrow deposit amount and additional deposit, the time for acceptance, the closing date, and listed himself as the "Cooperating Sales Associate" with "Bahia Realty Group, LLC." The Palmeris decided to offer a $125,000.00 purchase price. Respondent directed Mrs. Palmeri to complete the contract and provide a ten percent escrow deposit. Mrs. Palmeri entered a purchase price of $125,000.00, initialed each page, and signed the form as "Buyer." Respondent provided Mrs. Palmeri with instructions on how to wire the funds for the escrow deposit. On October 7, 2011, Mr. Palmeri wired $12,000.00 to J.P. Morgan Chase, which was then deposited in an account for Bonaventure Enterprises, LLC ("Bonaventure").1/ The Palmeris had no knowledge of Bonaventure, but, based upon the representations of Respondent, they understood the money they were asked to wire to the J.P. Morgan Chase account of Bonaventure was an escrow deposit for the property they intended to purchase at Blue Lagoon. The Palmeris had no discussion with Respondent regarding the reason for sending the escrow deposit to Bonaventure. They assumed that Bonaventure was somehow related to the seller or its title company. The condominium unit in question was bank owned; however, the Palmeris were not informed of this. No evidence was presented that Respondent had an ownership interest in Bonaventure. However, Bonaventure is owned by Respondent's brother and sister-in-law. At all times material hereto, Respondent was the managing member of Bonaventure. Bonaventure is not a licensed real estate broker. Bahia does not maintain an escrow account, and its sales associates are authorized to use title companies of their choice for receipt of escrow deposits. Respondent was aware that he was unable to accept the escrow deposit of the Palmeris in his own name, because, as a licensed real estate sales associate, he is prohibited from receiving the money associated with a real estate transaction in the name of anyone other than his broker or employer. In fact, Respondent was disciplined in 2010 for a similar violation.2/ Respondent claims that the Palmeris entrusted him with their $12,000.00 to hold for possible investments, not necessarily related to real estate transaction, and he was doing it as a favor for them as "friends." Respondent contradicted himself by stating his intention in directing the Palmeris to deposit their money into the Bonaventure account was to help them have cash on hand in Florida in order to meet the Blue Lagoon condominium seller's requirements to make the escrow deposit with the seller's title company within 24 hours after an offer was accepted. The Palmeris had no knowledge of the seller's unique restrictions on the escrow money. Further, Respondent's asserted motive in requesting the $12,000.00 to have cash on hand in Florida is undermined by the fact that, if the Palmeris could wire $12,000.00 to Bonaventure's bank account, they could also wire the funds directly to a title company chosen by the selling bank after acceptance of their offer. Shortly after returning the contract to Respondent and sending the escrow deposit, Mrs. Palmeri discussed increasing the purchase price by $1,000.00 for a total of $126,000.00. Based upon the language of the proposed contract, the Palmeris expected a response to their offer within 24 hours. Immediately thereafter, Respondent told the Palmeris that they were "in negotiations." However, almost a month passed before they heard from Respondent regarding the status of the purchase of the condominium. On or about November 4, 2011, Respondent contacted Mrs. Palmeri and stated that he had "good news." He indicated that the seller would be willing to sell the property for a price of $129,500.00. According to Respondent, the seller requested documentation from the Palmeris' bank indicating their ability to pay. Mrs. Palmeri indicated that this was not an acceptable counter-offer. Respondent suggested that he could negotiate a sales price of $129,000.00, but he needed the Palmeris to send an additional $9,000.00 to put into escrow. Mrs. Palmeri told Respondent that she was no longer interested in the property because their maximum offer was $126,000.00. During the same conversation, Mrs. Palmeri asked for the return of her deposit. Respondent expressed agitation that she was retreating from the possible purchase because he had done "so much work." Respondent clearly anticipated he would receive a commission if the deal was consummated. The Palmeris did not get an immediate return of their escrow deposit. Mrs. Palmeri called Respondent repeatedly and received no answer. She also sent an e-mail to J.P. Morgan Chase trying to find out the status of the deposit and received no reply. Mrs. Palmeri again attempted to contact Respondent on November 18, 2011, and left him a message that he needed to call her regarding the deposit. After receiving no response, she contacted Bahia and spoke with Ricardo Aleman. Mrs. Palmeri explained to Aleman that she had signed a real estate contract with Respondent on October 6, 2011. She no longer wanted to pursue this real estate transaction and wanted the escrow deposit returned. Aleman was unaware that Respondent was negotiating a real estate transaction for the Palmeris or had accepted their deposit money. Aleman contacted Respondent who confirmed by email that the Palmeris were no longer interested in purchasing the condominium at Blue Lagoon. Respondent wrote, "After a month of hard work . . . the client decided to drop. It was a little bit problematic. I lost time and money because the offer was already accepted and she had no reason to negotiate." Respondent assured Aleman he would return the deposit to the Palmeris. In accordance with Bahia's policies and procedures, its sales associates are required to complete a deposit form at the time of receipt of funds for escrow. No such receipt was received by Bahia from Respondent with regard to the transaction involving the Palmeris. However, it was not unusual for Bahia not to receive information regarding real estate transactions conducted by their sales associates until the time of closing. After discussing the matter with Aleman, Respondent advised the Palmeris that he could return their money within ten days. Respondent advised Mrs. Palmeri that he would send her two checks for the total amount--one check which she could cash immediately and a second check which would be postdated. In order to get a return of their deposit, Mrs. Palmeri agreed. On or about November 28, 2011, the Palmeris received two checks, each in the amount of $6,000.00, including one postdated for December 16, 2011. These checks were written on the account of Bonaventure and signed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order imposing on Alfonso Miranda an administrative fine in the amount of $6,000.00 and suspending the real estate sales associate license of Alfonso Miranda for a period of two years. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2014.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was licensed as a real estate sales associate, holding Florida license number 3035990. In late spring of 2005, the Respondent was contacted by Arnold Macabugao, a California resident who was interested in acquiring a home in Orlando, Florida, for himself and his wife. The Respondent was aware of a house for sale at 14213 Sports Club Way, Orlando, Florida 32837, which she apparently thought would be suitable for the Macabugaos' purchase. The owner of the house was Jack Girton. Mr. Girton did not reside in the property at any time material to this dispute. The Girton house was inhabited by a woman identified as Kim Capiello. Ms. Capiello was an acquaintance of Mr. Girton's. Ms. Capiello had no ownership interest in the property. All documents related to the purchase of the property by the Macabugaos identified Mr. Girton as the owner. During negotiations on the property, the Respondent provided all documents to Ms. Capiello. It is reasonable to conclude that Ms. Capiello transmitted the documents to Mr. Girton. There is no evidence that the Respondent dealt directly with Mr. Girton at any time during the sales process. The weight of the evidence establishes that the Respondent negotiated the Macabugaos' purchase of the Girton property through Ms. Capiello. At some point in the negotiations, the Respondent received a document titled "SIDE AGREEMENT TO PURCHASE CONTRACT" from Ms. Capiello. The document, which required payment of $10,000 directly to Ms. Capiello by the Macabugaos, in relevant part, provided as follows: This side agreement is between Buyers named above and Kim Capiello wherein the buyers agree to give $10,000 to Kim Capiello for services rendered in the search and purchase of the above named property. This agreement is contingent upon the buyers securing a loan, its lender determining a firm closing date and last but not the least, actual closing and funding of the above named property. The amount will be paid as follows: $5,000 to be paid at the time the Purchase contract is signed by all parties for the above property and contingent upon the buyers securing a loan and its lender determining a firm closing date. $5,000 to be paid the day after the closing under the condition being that the above property has been vacated and in move in condition. Kim Capiello further agrees that this side agreement is between her and the buyers only and has nothing to do with the actual purchase agreement entered into by the buyers and Jack Girton. (Emphasis in original) The Respondent facilitated the payment of the $10,000 by the Macabugaos to Ms. Capiello pursuant to the side agreement. The Respondent transmitted the document to the Macabugaos, who signed it. A signature purportedly of Ms. Capiello is also on the document. The Respondent instructed the Macabugaos on how to make the payments. She collected the funds from them. The Respondent used her personal checking account as a transfer mechanism for one of the $5,000 payments. The side agreement does not identify the date of execution, but Mr. Macabugao testified that he signed the side agreement after the sales contract had been signed. The executed sales contract between the Macabugaos and Mr. Girton was dated June 7, 2005. Mr. Macabugao testified that he had no communication with Ms. Capiello. The evidence fails to establish the Macabugaos' rationale for agreeing to make the payments to Ms. Capiello, other than the fact that the Respondent transmitted the document to the Macabugaos and instructed them on how to make the payments. None of the sales documents suggested that Ms. Capiello held licensure in Florida as a real estate professional. Based upon a review of the Petitioner's licensure files, the Petitioner's investigator testified that Ms. Capiello was not licensed in Florida as a real estate professional in any capacity. There was no credible evidence to the contrary, and the investigator's testimony has been credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding Eleanor Borling Dioneda guilty of violating Subsection 455.227(1)(j), Florida Statutes (2005); imposing a two-year license suspension followed by a two-year probationary period; imposing a fine of $5,000; and requiring completion of a remedial professional education course to be determined by the Petitioner. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of August, 2008. COPIES FURNISHED: Jason W. Holtz, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Eric W. Ludwig, Esquire 250 North Orange Avenue, Suite 1250 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801
Findings Of Fact The Petitioner is an agency of the State of Florida charged with the responsibility to license and regulate the licensure standards of real estate brokers and salespersons in the State of Florida and with prosecuting Administrative Complaints against the licensure status of those persons for alleged violations of the various provisions of Chapter 475, Florida Statutes (1991), and the rules promulgated thereunder. The Respondent at all times material hereto was a real estate broker- salesperson operating and licensed in the State of Florida having been issued license number 0162601. The last license issued the Respondent was effective on September 30, 1991 and accorded him the status of a "non-active broker" with an address at 5622 Thomas Drive, Panama City, Florida 32408. In 1987, Barbara Jean Parmer, also known as Barbara Jean Withers (hereafter Barbara Parmer), responded to a newspaper ad and rented a residential property from the Respondent. She gave the Respondent a damage deposit of approximately $395.00. Subsequent to renting the property, she expressed an interest in buying it from the Respondent and was advised by the Respondent that she could seek financing from his lender or she could make payments directly to the Respondent; and when he was fully paid, he would transfer the deed to her and pay off the existing first mortgage. This was the first occasion she had ever attempted to purchase a home. The Respondent told Barbara Parmer that the existing mortgage balance was $29,000.00 and that to sell her the property, he wanted a $5,000.00 down payment and $12,000.00 in "rent" for a total sales price of $46,000.00. In effect, the so-called payments would be payments toward purchase of his equity in the home. On October 9, 1987, the Respondent and Barbara Parmer executed a "Receipt for Deposit-Offer to Purchase-Contract for Sale" (contract) reflecting a $5,000.00 earnest money deposit for property located at 335 Gardenia Street, Panama City, Florida. On that day, Barbara Parmer gave the Respondent check number 108 for $5,000.00 as the down payment on the house. He cashed that check on October 12, 1987. The Respondent drafted the contract at issue and did not advise Barbara Parmer to have an attorney review the document. Barbara Parmer testified that she trusted the Respondent, in effect, because he was a real estate licensee. When she signed the contract and gave the earnest money deposit or down payment, she understood that she was contracting to purchase the property from the Respondent. Sometime after signing the contract and the tendering of the earnest money deposit, Barbara Parmer (then Withers) married David Parmer. Subsequent to the signing of the contract and the payment of the earnest money deposit, the Respondent advised the Parmers that he was getting divorced. He told them he did not want his wife to gain possession of the property and so suggested that Barbara Parmer go to Sun Bank to have the property transferred into her name, in other words, by re-financing the house with Sun Bank and thus paying off the existing first mortgage and any equity still owed the Respondent. After the Respondent told the Parmers about his impending divorce, Mr. Parmer asked the Respondent to return the $5,000.00 earnest money deposit. The Respondent advised that if he sold the house, he would return the deposit, which was being held in an account drawing interest, according to the Respondent. He also represented that he would not refund any of the money expended by them for improvements because he had not requested that any of the improvements be made. He had apparently taken the position in entering the arrangement with Barbara Parmer that it was a sale of the property under a "contract for deed" arrangement whereby title would pass only after his purchase price had been paid. In any event, Barbara Parmer went to Sun Bank and was advised by Loan Officer, Cindy McNeal, that the documents entered into between Barbara Parmer and the Respondent regarding purchase of the property were legally flawed in the opinion of Ms. McNeal and that Barbara Parmer should seek an attorney's advice. Sun Bank declined to refinance the property because Mr. Parmer was then unemployed due to an accident and was only receiving income from worker's compensation and no salary. After the conversation with the representative of Sun Bank, Barbara Parmer called Great Western, the holder of the first mortgage executed by the Respondent, to inquire as to the balance due on that first mortgage. Barbara Parmer received a document from Great Western dated November 13, 1990 indicating that the balance on the mortgage was approximately $33,000.00. In 1987, when she contracted with the Respondent to purchase the property, the Respondent had told her that the balance was approximately $29,000.00. The first mortgage was apparently an adjustable rate mortgage and either the represented $29,000.00 figure was inaccurate or the mortgage was in negative amortization or both. The Respondent never advised the Parmers of any negative amortization situation. Between October 9, 1987 and March or April of 1991, Barbara Parmer paid the Respondent between $400.00 and $500.00 per month toward purchase of the property. The checks for the monthly payments were payable to Respondent Melvin J. Powell and were negotiated by Powell. At the direction of the Respondent, the payments were made at the office of Sun Spot Realty. During this time, the Respondent's licensure was located and registered with Sun Spot Realty. The variation in the monthly payment was because the Respondent advised Barbara Parmer that the monthly payment on the first mortgage held by Great Western was $200.56 and that anything she paid over that amount would go toward the $12,000.00 equity she owed the Respondent pursuant to their agreement. Some months she paid different amounts over and above the amount represented by the monthly payment on the Great Western first mortgage. The Respondent gave Barbara Parmer a ledger sheet showing the dates she made payments on the property, the amount that went to Great Western to retire the first mortgage, and the amount that went to the Respondent toward the $12,000.00 second mortgage representing his equity, as well as the amounts contributed to interest, taxes, and insurance. During the approximately three and one-half years that she lived in the house, she made improvements to the property, including but not limited to: landscaping the front and back yards, pouring a foundation, erecting a metal shed, repairing the roof, painting the interior and exterior, replacing the walls and floor in the bathroom, wallpapering and finishing the kitchen, and installing a new dishwasher and a new hot water heater. Respondent never expended any funds for upkeep of the property during the time the Parmers occupied the house. The Parmers spent at least $5,000.00 on improvements to the property they were purchasing from the Respondent. The Respondent told them then to make whatever improvements they wished because the house was theirs. The Parmers would not have spent the money on the improvements had they not believed that they were purchasing the property. After attempting to obtain financing from Sun Bank, Barbara Parmer contacted Attorney Glenn Hess, who sent a letter to Respondent's counsel regarding Barbara Parmer's concerns. Prior to seeing Attorney Hess, the Respondent had admonished Barbara Parmer not to see an attorney, that the matter could be settled amicably between them, and he threatened to sue her if she did contact an attorney about her concerns. The Respondent told Mr. Parmer that Barbara Parmer had a legal contract to purchase the property and warned against them seeking legal advice by threatening to sue them for breach of contract if they did so. Attorney Hess advised Barbara Parmer that it would be uneconomical to file a lawsuit against the Respondent. Despite demand for return of the earnest money deposit, the Respondent never returned the deposit nor did he ever compensate the Parmers for the funds they expended on improvements to the property. They vacated the property on advice of their attorney. The Respondent never gave notice to the Parmers that he was claiming any of their funds for damage to the property or for breach of contract. When they vacated the property, there was no damage to the property other than a five-inch hole in one bedroom wall. Within two months of the Parmers moving out, the Respondent rented the property to another tenant for almost $100.00 per month more than the Parmers had been paying. On the advice of Attorney Hess, the Parmers filed a complaint against the Respondent with the Bay County Board of Realtors, Inc. Thomas S. Newbauer has been a licensed real estate broker since 1973 and serves as chairman of the Professional Standards Committee (hereafter Committee) of the Bay County Board of Realtors. The Committee hears cases and renders decisions on allegations of violations of the Board of Realtors' code of ethics. In September, 1991, Mr. Newbauer served as a member of the panel appointed by the Committee in considering the complaint filed by the Parmers against Respondent. A hearing was held by the appointed panel to consider the complaint filed by the Parmers against the Respondent. The Respondent was notified of the hearing and appeared and testified. On September 30, 1991, the ethics hearing panel of the Committee filed a decision regarding the Parmer complaint against the Respondent and determined that the Respondent had violated three articles of the realtor code of ethics and further that there might be grounds for investigation by the Florida Department of Professional Regulation. On October 1, 1991, Mr. Newbauer sent a letter to the Board of Directors of the Board of Realtors informing them of the determination of the panel of the Committee. The determination by the panel that the Respondent had violated the code of ethics was upheld by the Board. Paul R. Bratton, III has been a real estate investigator with the Department of Professional Regulation for some nine years. The Respondent told Mr. Bratton that he had kept the $5,000.00 earnest money deposit because the Parmers had breached the contract.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that the Respondent be found guilty of having violated Section 475.25(1)(b), Florida Statutes, and that his Florida real estate license be suspended for a period of one year, that he be accorded a formal written reprimand, that he complete 60 hours of post-licensure continuing education for brokers within three years from the date of the Final Order entered in this cause, and that he pay a fine of $1,000.00 to the agency within 30 days of the filing of the Final Order in this cause. DONE AND ENTERED this 13th day of May, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3751 Petitioner's Proposed Findings of Fact 1-46. Accepted. Respondent's Proposed Findings of Fact The Respondent filed no separately-stated findings of fact but rather a one-page "Proposed Recommended Order" merely stating the conclusions that the Respondent was not guilty of the charges in Counts I and II of the Administrative Complaint and the statutes he was charged with violating. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Janine B. Myrick, Esq. Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Melvin J. Powell 2610 Dade Panama City, FL 32408 Melvin J. Powell 5622 Thomas Drive Panama City, FL 32408
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0466167. Respondent's real estate license was invalid during the dates at issue in this proceeding. The license expired on September 30, 1993, and was activated on February 1, 1994. The last license issued to Respondent was issued as a voluntary inactive sales person at 171C Springwood Boulevard, Longwood, Florida. On October 28, 1993, Mr. Frank Canty, terminated Respondent from employment at Frank G. Canty Realty ("Canty"). Mr. Canty notified Respondent of the termination by telephone on or about the same day and immediately filed the form required to notify the Florida Real Estate Commission (the "Commission") of Respondent's change in status. 2/ Mr. Robert Sirianni and Respondent are long time friends. Mr. Sirianni is the broker and owner for Bay Hill Realty, Inc ("Bay Hill"). Mr. Sirianni hired Respondent as a real estate sales person for Bay Hill on November 22, 1993. Mr. Sirianni signed the completed form required to notify the Commission that Respondent had placed his license with Bay Hill. Mr. Sirianni gave the completed form to Respondent to hand deliver to the Commission. However, Respondent failed to deliver the form to the Commission. On November 22, 1993, Respondent showed a condominium to prospective buyers. Respondent represented that he was an employee of Canty. Respondent delivered a written offer of $36,000 to Watson Realty Corporation ("Watson"), the listing office. Respondent used his Canty business card in the transaction. A representative of Watson contacted Mr. Canty to discuss some problems in the transaction. Mr. Canty informed the representative that Respondent was terminated from Canty on October 28, 1993. Watson caused a new contract to be executed between the buyers and sellers showing Watson Realty as the listing and selling office. The transaction closed on the new contract. On December 13, 1993, Mr. Sirianni faxed a memorandum to Watson claiming the sales commission purportedly earned by Respondent. Mr. Sirianni withdrew the demand after learning of the facts and circumstances surrounding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order: finding Respondent guilty of violating Sections 475.25(1)(b), 475.25(1)(e), and 475.42(1)(b); authorizing the issuance of a written reprimand; placing Respondent on probation for one year; and imposing a fine of $1,000 to be paid in accordance with this Recommended Order. RECOMMENDED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL MANRY 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 9th day of May 1995.
