Findings Of Fact Case No. 80-767 Count I In 1976, Ms. Kay E. Davis bought a house from Home America Realty, Inc., and Home America, Inc. at 11700 North 58 Street, Tampa, Florida, the Respondent's principal place of business. On or about May 26, 1976, the Respondent offered to Ms. Davis a color television set in exchange for sending Respondent a referral who would purchase a home. Ms. Davis was and is not registered as a real estate broker or salesman in Florida or any other state. Subsequent to the closing of the purchase by Ms. Davis, one of her friends, Brenda Kelly, purchased a home from the Respondent. Ms. Davis believed that she was responsible for the referral and contacted the Respondent's office concerning the color television. After the closing and over a period of several months, Ms. Davis called Home America to complain about problems with her house. In response to her complaints, the exterior of the house was cleaned and a check for $110.00 was sent to her in settlement of a claim concerning carpeting. During this period of time, a check for $200.00 was sent to Ms. Davis following a telephone conversation between Ms. Davis and the Respondent's secretary. Ms. Davis never received a color television from the Respondent or spoke to him directly about the $200.00 in lieu of a color television set. The $200.00 was not knowingly paid by the Respondent as a referral fee; rather, it was an attempt on the Respondent's part to settle the ongoing problems involving Ms. Davis' home. Count II Prior to the hearing, counsel for the Respondent moved that Count II be dismissed, based upon a letter he received on May 19, 1980, from counsel for the Board of Real Estate informing him that on May 19, 1980, following an investigation the Board dismissed this part of its complaint (CD 18645) against the Respondent. Ruling was reserved on this Motion and the Respondent presented testimony and evidence on this Count. Counsel for Respondent was never informed by the Board that Count II of the complaint was not in fact dismissed as represented in the May 19, 1980, letter until October 23, 1980, the day of the formal hearing. Case No. 80-1225 On November 21, 1977 Mr. and Mrs. Richard Caplano purchased a home at 4611 East Seneca Drive, Tampa, Florida, from Respondents Home America Realty, Inc. and Bekiempis through their salesman, Robert Knisley. At the time Mr. Knisley first showed the Caplanos the property, the site was under construction, unsodded and survey markers were not in place. Although a chain link fence was visible on the east side of the property, it would have been difficult to determine the legal boundary lines because of the condition of the site. The visible fence was 10 feet beyond and parallel to the actual property line. The lot purchased by the Gaplanos was 60 feet in width. The lot directly behind the Gaplanos was 70 feet wide. The Caplanos were furnished with an accurate survey of the property either five days after the contract was signed or at the closing. At the closing, the Caplanos understood that they were purchasing a sixty foot lot and never believed or were told that their lot was 70 feet wide. Prior to closing, the lot was sodded beyond the boundary lines to include easements on both sides of the street and the 10 feet up to the fence line. It was the customary practice of Home America, Inc. , to sod beyond property lines after the completion of construction of a lot to improve the appearance of a neighborhood. Such action was not intended to mislead purchasers as to the location of their property lines. The misunderstanding between the Caplanos and Mr. Knisley arose not out of any attempt by Mr. Knisley to misrepresent or mislead, but rather out of Mr. Knisley's erroneous and unintentional attempt to locate the property lines and survey markers. Case No. 80-789 On or about November 10, 1976, the Respondent contracted with Ronald Faber for the sale of a house and lot located at Lot 1, Allbright Shores Subdivision. At the time Ronald Faber worked for the Respondent as comptroller of Home America, Inc. This house was purchased using conventional financing since the specifications of the house and lot did not meet the requirements of VA financing and, thus, such financing could not be arranged. The contract for purchase of the house called for a down payment of $4,600.00 or 10 percent of the purchase price. A portion of this amount was paid in cash by Mr. Faber and the remainder was paid by way of an employee discount to Mr. Faber as evidenced by the exchange between Mr. Faber and Home America, Inc. of checks for $3,000.00. Mr. Faber received from his employment with Respondent salary income and additional income from managing apartments. Thus, his income was capable of varying during the year and was not calculated as straight salary. The evidence is inconclusive as to what Mr. Faber's actual income was for the year in question. The statement of salary made by the Respondent to the financing bank was substantially correct based upon his interpretation of Mr. Faber's salary and was not intended to mislead the bank. The testimony is contradictory concerning whether the Respondent agreed to pave the road in front of the Faber home beyond that which was already in place. However, no competent testimony or evidence was presented that the Respondent supplied any information to the bank's appraiser concerning the paving of the road. Mr. Faber executed a note and mortgage in favor of Home America, Inc., encumbering the property on November 24, 1976. There is conflicting testimony as to whether the affidavit furnished the bank which stated that no outstanding unrecorded contract for sale, deed, conveyance, or mortgage affecting title existed on the property, was executed by the Respondent on November 24 or November 29. The note and mortgage were delivered to Respondent after the affidavit was executed. The Respondent believed at the time the affidavit was executed that he held a promissory note which was not a valid lien on the property until the mortgage and note were signed and delivered to him.
The Issue The issue in this case is whether Petitioner, a licensed Florida real estate sales associate, violated provisions of Subsections 475.25(1)(b), 475.25(1)(d)1., 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the Department), is the state agency responsible for licensing and monitoring real estate sales associates within the state. It is charged also with the duty to prosecute administrative complaints for violations of the law by real estate sales associates. Respondent, Caroline Mohan (Ms. Mohan), is a licensed real estate sales associate who holds License No. 3087231. She was registered as a sales associate with Coral Shores Realty (Coral Shores) in Fort Lauderdale, Florida, from September 12, 2005, to March 28, 2008. At all times relevant to the charges against her, Ms. Mohan was the Coral Shores sales associate who was the listing agent for Anthony Mannarino, the seller of property located at 10530 Versailles Boulevard, Wellington, Florida (the "subject property"). At closing, Coral Shores was to have received at 2.5 percent commission and pay a portion of the commission to Ms. Mohan. Dawn Campbell and Garth Smith (the buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the subject property from Mr. Mannarino. Pursuant to the contract, the buyers were to deposit $10,000 in an escrow account in two $5,000 installments. The Contract was signed on or about March 12, 2007. The transactions took place electronically and Mr. Smith sent Ms. Mohan a photocopy of a $5,000 check that he was supposed to have deposited, under the terms of the contract, in the account of Closings Unlimited Title Company (Closings Unlimited), but he never sent the check to Closings Unlimited. The seller asked Ms. Mohan to have the buyer use a different escrow agent, Southeast Land Title (Southeast), and so the buyer wired $5,000.00 to Southeast, but the Contract was not amended to reflect the name of the new escrow agent. A $5,000 deposit was sent to Southeast by the buyers, but they never paid the $5,000 balance due on the deposit. Mr. Smith testified the he could not make the second payment because he gave $5,000 in cash to an employee to deposit in his account so that he could make a wire transfer, but the employee took the money. On April 3, 2007, Southeast faxed a notice to Coral Shores, with an attached letter to the buyers, informing them of its intention to respond to a demand (presumably by the seller) to release the $5,000 held in escrow related to the subject property. As a result of a complaint filed by Dorothy Hoyt, a representative of Southeast, the matter was investigated and an Administrative Complaint filed against Respondent. The Administrative Complaint alleges that Ms. Mohan personally received funds, fraudulently failed to account for those funds, and acted, without the proper license, as a broker by accepting the deposit. The Department's investigator testified that he was never able to determine if the escrow deposit was deposited at any bank, lending institution or with Dorothy Hoyt of Southeast Land Title of Boca Raton. He "believe[s] there was a wire for one deposit made, but [he] did not receive confirmation of that." Regarding his conversations with Ms. Hoyt, the investigator reported "she did state that . . . she had received - eventually received $5,000.00 and was still waiting [for] another $5,000.00 in order to have the full $10,000.00 deposit." In his report, the Department's investigator claimed that Respondent was terminated from employment by her Coral Shores broker, Ronald Cika, as a result of her misconduct in handling transactions related to the subject property. That claim was contradicted by Mr. Cika and by Ms. Mohan. Their testimony was supported by the contents of e-mails between his office and Respondent that show that she became inactive as a realtor while traveling overseas with an offer to reactivate with the same broker upon her return. Mr. Cika testified that he is aware of a lawsuit filed by Dawn Campbell related to a different address on the same street, 10526 Versailles Boulevard, but that he is not aware of any issues related to 10530 Versailles Boulevard, the subject property. Jannet Rodriguez, owner of Closings Unlimited, testified that she was never contacted and never opened a file to serve as either an escrow or closing agent for the subject property at 10530 Versailles Boulevard. She, too, is involved only in issues related to 10526 Versailles Boulevard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Caroline Mohan. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 12th day of June, 2009.
Findings Of Fact The Respondent issued an Invitation to Bid by which sought to lease approximately 21,000 net useable square feet of office space to be located in Tampa, Florida. This Invitation to Bid is referred to as Lease Number 590:1946. Three bids were received in response to the Invitation to Bid, and they were opened on July 29, 1988. Bids were received from the Petitioner, Structures, Inc., and a third bidder that has not filed a protest, and is therefore not relevant to this proceeding. All bidders were initially determined to be responsive to the Invitation to Bid. Petitioner and Structures, Inc., submitted bids involving the same office space and real property. Petitioners' bid for this space was lower that the bid filed by Structures, Inc., when compared on a present value rental cost analysis. Despite Petitioners' lower bid, Respondent awarded this lease to Structures, Inc., due to the receipt of a letter dated August 2, 1988, from Intervenor, the owner of the subject property, stating that, "Mr. Hartley (Petitioner) has no right to propose this property to the Department as Mr. Hartley and I have no agreements with respect to my leasing the property to him." On the basis of this letter, the Respondent concluded that Petitioners had no legal interest in the subject property and therefore did not have the requisite control over the property to submit this bid. The Petitioners' bid was determined to be nonresponsive. Petitioners did not present competent substantial evidence to discredit or refute Intervenor's contention that they lacked any legal interest in this property. It is undisputed that Intervenor owns the property, and Intervenor was present at the hearing to confirm that the letter of August 2, 1988, was, in fact, his letter. The Petitioner, James C. Hartley, was not present at the hearing. The only evidence presented by Petitioners of any alleged interest in this property is a copy of a telecopy letter dated June 29, 1988, filed with its bid, which purports to express the intention of Intervenor and Petitioner Hartley to enter into a lease for certain property described on an Exhibit A, which was not presented in evidence. Thus, there is no indication on the face of this document that the telecopy letter relates to the subject property. However, even if the letter does relate to the property owned by Intervenor, the agreement specifically states that Intervenor's obligation to enter into a lease with Petitioner is expressly conditioned upon Intervenor's approval, In his sole discretion, of any sublease with the Respondent. If for any reason the Intervenor disapproved of the Petitioners' bid and lease with the Respondent, according to this agreement, he could simply refuse to enter into any lease of the subject property with Petitioners, and thus, Petitioners would have no interest or control over the property, and could not then sublease it to the Respondent. Finally, there is no recital of consideration in the purported agreement set forth in the telecopy letter. Based upon a complete review of the evidence presented, it is found that Petitioners did not have a valid, legal interest in the subject property which would be sufficient to allow them to file this bid and propose this lease to the Respondent. As such, Petitioners' bid was unresponsive.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioners' protest Lease Number 590:1946. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4645BID Rulings on Petitioners' and Intervenor's Proposed Findings of Fact: Petitioners and Intervenor did not timely file a Proposed Recommended Order containing proposed findings of fact. Rulings on the Respondent' Proposed Finding of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. 3-5. Rejected as irrelevant and unnecessary. 6-8. Adopted in Finding of Fact 4. 9. Rejected in Finding of Fact 2, and as irrelevant. COPIES FURNISHED: Joseph D. McFarland, Esquire 520 Second Avenue, South St. Petersburg, Florida 33701 Robert L. Rocke, Esquire Post Office Box 3433 Tampa, Florida 33601 Jack Farley, Esquire W. T. Edwards facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Choice Plus, LLC is entitled to Unclaimed Property Account Number 103851316.
Findings Of Fact On January 25, 1999, Donald C. Rogers died. On August 19, 1999, the Estate of Donald C. Rogers, (“decedent”) was submitted for probate. The Department received the following described unclaimed property: Account Number: 103851316 Reported Amount: $28,007.01 Reported Name: Rogers, Donald C. Sr. Reported Address: Hillsborough SSN#: None Holder: Clerk of Court Property Type: Cash On March 22, 2005, the probate court entered an Order Granting Petitioner to Distribute Funds and to Distribute Surplus Funds into Registry of Court. The Personal Representative for the Estate had been unable to locate Sean Henry Casner (“Casner”), the decedent’s grandson. Casner’s share of the Estate was $23,689.95. The Order for Discharge was rendered June 24, 2005. On November 3, 2012, Casner executed a Limited Power of Attorney (“LPOA”) authorizing Choice Plus to act on his behalf as Claimant’s Representative. The LPOA disclosed that Choice Plus’ fee was 25 percent of the funds recovered. The 25 percent equaled $5,922.49; the net amount to Casner was $17,767.46. On April 29, 2013, the Department received a completed claim form filed by Choice Plus on behalf of Casner. On August 12, 2013, Choice Plus withdrew its claim on behalf of Casner by email. On August 17, 2013, Casner sold his interest in the property related to the above-referenced account (“account”) to Choice Plus by means of a purchase agreement. On or about August 19, 2013, Casner cashed the $13,029.47 check from Choice Plus for the purchase agreement. On September 3, 2013, the Department received a claim from Choice Plus on behalf of Casner, as the purchaser of the account. The Purchase Agreement disclosed the following: $23,689.95=Approximate Dollar Value of the Property $23,689.95=Amount to be Paid to Buyer $13,029.47=Net Amount to be Paid to Seller Property Account Number(s): 103851316 The Department issued a Notice of Intent to enter a final order denying the claim filed by Choice Plus as the purchaser for the unclaimed property relating to Account Number 103851316. The Department determined Choice Plus failed to comply with section 717.1351, Florida Statutes, by deleting the percentage line in the Purchase Agreement without a flat fee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is REOMMENDED that a final order be entered granting Choice Plus claim to the unclaimed property Account Number 103851316. DONE AND ENTERED this 24th day of June, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 24th day of June, 2014. COPIES FURNISHED: Seann M. Frazier, Esquire Parker, Hudson, Rainer and Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 Josephine Schultz, Esquire Department of Financial Services Legal Services, Room 601 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The issues presented concern the question of the entitlement of the Petitioner, Elizabeth A. Atkinson, to be licensed as a real estate salesman in the state of Florida, as contemplated by Chapter 475, Florida Statutes.
Findings Of Fact Petitioner made application with the State of Florida, Department of Professional Regulation, Division of Real Estate, to be licensed as a real estate salesman. This application was received on July 15, 1986, by the Florida Real Estate Commission. A copy of that application form may be found as Respondent's Exhibit 2 admitted into evidence. Question 6 in the application states: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" Petitioner answered this question in the affirmative, and in response to instructions in that questionnaire undertook to make explanation of her criminal record. That explanation was to this effect: I was convicted in 1972 of Fraudulent Use of Credit Card this was a credit card that was mine during my marriage [sic] and I used this during our separation [sic] and my ex-husband pressed charges. Then I was also convicted of worthless check charges these were my own and restitution has been made. In the face of this revelation by the Petitioner concerning her criminal background and having ascertained what it believed to be a more comprehensive explanation of the Petitioner's involvement in criminal activities, the Florida Real Estate Commission determined to deny the application for licensure. Respondent's Exhibit 1 admitted into evidence is a copy of a letter from counsel for the Respondent to Petitioner identifying what the Respondent perceived to be a depiction of the criminal activities of the Petitioner. When confronted with a denial of her request for licensure Petitioner timely sought a formal hearing to prove her entitlement to licensure. The case was assigned to the Division of Administrative Hearings and the hearing date of March 27, 1987, was established. Notwithstanding the provision of notice and the remarks by Petitioner to Respondent's counsel which created the impression that the Petitioner would appear at the hearing session, Petitioner did not attend the hearing and was not represented at the hearing. In addition to the previous exhibits which Respondent offered and which have been addressed in the fact finding, Respondent offered, and it was admitted into evidence, a third exhibit, correspondence from the petitioner to a Ms. Clayton. This correspondence appears to be a further attempt on the part of the Petitioner to explain the circumstance of her criminal activity. In accordance with Rule 1.370, Florida Rules of Civil Procedure, and Rule 22I-2.12(1)(h), Florida Administrative Code, Respondent made request for admissions from the Petitioner on February 16, 1987. The request for admissions document instructed the Petitioner in the following fashion: Pursuant to the Rules cited above, you are hereby required to specifically admit or deny the following facts in writing. If objection is made to any of the following, then you are required to state in writing your reasons therefor. You are further required to submit the original and one copy of this document, when completed, to the Hearing Officer in this cause, and one copy to the attorney for the Respondent, within 30 days. In substance, it was requested of the Petitioner that she admit: On or about January 12, 1973, Petitioner was charged with issuing a worthless check. Adjudication of guilt was withheld, and Petitioner was placed on probation for one year. On or about May 17, 1973, Petitioner was charged with two counts of worthless checks and probation violation. On or about September 5, 1973, Petitioner was charged with two counts of worthless checks, contempt of court, and probation violation. On or about October 16, 1973, Petitioner was charged wish fraudulent and illegal use of credit cards and probation violation. On or about April 7, 1975 and April 17, 1975, Petitioner was arrested on worthless check charges. On or about June 1, 1975, Petitioner was arrested for inmate of a house where drugs are used, worthless checks, contempt, and failure to appear charges. On or about February 17, 1978, Petitioner was arrested on worthless check charges and adjudicated guilty of said charges. Petitioner was sentenced to five years of state prison and three years of probation; 56 months of the prison sentence were suspended. On or about June 2, 1978, Petitioner was charged with worthless check charges and adjudicated guilty of said charges, and sentenced to 30 days of jail time. On or about September 7, 1978, Petitioner was charged with issuing a worthless check. On May 13, 1985, Petitioner was charged with a probation violation and issuing a worthless check. Respondent's counsel stated in the course of the final hearing that the Petitioner had promised responses to the request for admissions but had not made those available prior to the final hearing. Under the circumstances, Respondent's counsel asked that the hearing officer deem those matters set forth in the request for admissions established as fact. The request was granted, and the request for admissions was deemed established and provided a basis for fact finding. On March 27, 1987, at 11:32 a.m., the office of the Division of Administrative Hearings received the Petitioner's response to the request for admissions. That document is being transmitted with this recommended order. In her response, the Petitioner acknowledges the factual accuracy of all paragraphs, save numbers 6 and 10. In paragraph 6, she denies that she was arrested as being an inmate of a house where drugs are used and appears to emphasize an acknowledgment of the arrest for worthless checks dating from June 1, 1975. In responding to paragraph 10 of the request for admissions which concerns charges against the Petitioner for probation violation and issuing a worthless check dating from May 13, 1985, Petitioner states: "This was not a new charge but a formality to have the judge terminate the probation period which I had to have been terminated several years prior to this date."
The Issue The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In November 1993, she decided to place her license with Century Respondent agreed that he would do the same. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance. DONE AND ENTERED this 27th day of October, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jeanette Martinez Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent, as Mayor of the City of Oviedo, violated Sections 112.313(8) and 112.313(6), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent, David Knickerbocker (Knickerbocker) served as the elected mayor of the City of Oviedo (City), Seminole County, Florida, from September 1991 to September 1993. The mayor of the City attends and participates in City Council (Council) meetings but does not have a vote in Council matters. Knickerbocker is and has been at all times material to this case, a state-registered real estate broker and part-owner of Oviedo Realty, doing business as Century 21 Oviedo Realty, in Oviedo Florida. The property involved in this case consists of three tracts of commercial/industrial zoned property on Evans Street within the city limits of Oviedo. The three tracts consist of two vacant parcels of property (Tracts I and III), which flank a center parcel of property (Tract II) upon which a warehouse structure has been built. In 1984 Knickerbocker was the real estate agent involved in the sale of Tract II to Rudy Vuckovic. In 1985, Mr. Vuckovic constructed a large warehouse-type building on Tract II. Knickerbocker was also the real estate agent involved when Mr. Vuckovic purchased the adjacent vacant lots, Tracts I and III, in 1984 and 1986, respectively, from Harry O. Hall for the price of $45,000 each. From October, 1991 until January, 1993, Knickerbocker's company, Century 21 Oviedo Realty, Inc., listed for sale, Tracts I, II, and III. From December 1992 until the end of May 1993, Duke Realty also listed for sale Tracts I, II, and III. As of June 7, 1993, the three parcels of property had not been sold. Mr. Vuckovic telephoned Knickerbocker the morning of June 7, 1993, to say that he needed to obtain contracts for sale of Tracts I and III that week. He agreed to pay ten percent commission to Knickerbocker if Knickerbocker sold the lots for him. Vuckovic's asking price for each lot was $35,000. At the regular public meeting of the Council on Monday evening, June 7, 1993, city manager Eugene Williford (Williford) requested and obtained the Council's authorization to explore the possibility of purchasing an 8,000 square feet building on Evans Street for use as a public works facility. The Evans Street building which the City Manager was discussing on June 7, 1993 was the large warehouse-type building that Mr. Vuckovic had constructed on Tract II. In his brief presentation, the City Manager attempted to minimize the information he divulged publicly, being careful not to compromise the City's future bargaining position. During the Council's public discussion of Tract II, there was no mention made by Williford, Knickerbocker, or anyone else of Mr. Vuckovic's two vacant lots, Tracts I and III, nor was there any indication that Williford was interested in pursuing the purchase of those two lots. Knickerbocker did not mention during the meeting that he had knowledge concerning any of the three tracts. After the June 7 Council meeting concluded, Knickerbocker, Williford, and Councilman Hampton walked out together to the parking lot behind city hall. Having judged the credibility of the witnesses, I find that the three men did discuss the purchase of Tracts I, II, and III. Williford advised Knickerbocker that if the City purchased Tracts I and III, that one of the lots could be used as a compound for confiscated vehicles and the other lot could be used for storing materials. The possible means of financing the vacant lots and the building on Tract II was also discussed. The information concerning the City's interest in purchasing Tracts I and III were divulged to Knickerbocker because of his position as mayor. The post-meeting discussion between Knickerbocker and Williford about Tracts I, II and III took place in the presence of Councilman Hampton but was not a duly noticed public hearing open to the public and recorded as a public meeting. No other persons were present. At no time during the evening of June 7, 1993, did Knickerbocker tell the city manager or any city council member that Mr. Vuckovic was desperate to quickly sell Tracts I and III. Within a few days after June 7, 1993, Knickerbocker tried unsuccessfully to find investors who would be interested in purchasing Tracts I and III. On Thursday, June 10, Knickerbocker called Williford to tell him that Orange Bank now owned Tract II and that Milton West of Orange Bank would be contacting Mr. Williford to discuss selling the building to the City. During his June 10 conversation with Williford, Knickerbocker did not tell Williford that Mr. Vuckovic owned Tracts I and III nor did Knickerbocker tell Williford that Mr. Vuckovic was in a hurry to sell those two lots. On Thursday, June 10, 1993, Knickerbocker told his mother, Dorothy Knickerbocker, that Mr. Vuckovic had two vacant lots adjacent to Tract II that he needed to sell in a hurry and that the two lots were a "very good buy." Knickerbocker further told his mother that the City was interested in purchasing the building between the two lots. No evidence was presented that Knickerbocker directly divulged to his mother that the city was interested in purchasing Tracts I and III. Shortly after his conversation with his mother on June 10, 1993, Knickerbocker called Mr. Vuckovic and negotiated a purchase price of $31,000 each for Tracts I and III. Knickerbocker had agreed with his mother that he would forego his commission on the sale of the property. Knickerbocker drafted two contracts for sale of Tracts I and III, and on Saturday, June 12, 1993, delivered those contracts to his mother for her signature and then to Mr. Vuckovic for his signature. Both signed the contracts in Knickerbocker's presence. On Monday, June 14, 1993, Knickerbocker advised Williford that his mother and brother, Tom Knickerbocker, had contracted to buy Tracts I and III. Prior to his June 14 conversation with the city manager, Knickerbocker had not told the city manager of his family's interest in purchasing Tracts I and III. The night of Monday, June 14, 1993, Knickerbocker asked Councilman Hampton, a surveyor, to survey Tracts I and III. Knickerbocker did not tell Mr. Hampton at that time that Mrs. Knickerbocker and her son, Tom, were buying the property. On Wednesday, June 16, 1993, Knickerbocker delivered the two contracts for sale to Attorney Joseph Scuro so he could take them to closing on June 30, 1993, the closing specified on the contracts. In attempting to bring the sale to closure, Attorney Scuro learned of some significant encumbrances on the property and encountered difficulty in contacting the attorneys of other parties who had interests in the property. Mr. Scuro advised Knickerbocker of the problems that he was having in closing the property sale. On July 9, 1994, Attorney Scuro left a message at Knickerbocker's office that he was withdrawing from representing Knickerbocker's mother in the purchase of Tracts I and III. On July 22, 1994, Mr. Scuro talked with Knickerbocker concerning his withdrawal of representation of Knickerbocker's mother. He advised Knickerbocker that there were problems with encumbrances on the vacant lot and that the contracts to purchase the lots in which the city was interested had become a political issue. At that time, Knickerbocker advised Mr. Scuro that Mrs. Knickerbocker had decided not to buy the two lots. On or about Thursday evening, July 22, Knickerbocker telephoned Williford at his house and told him that his mother had withdrawn her offer to purchase Tracts I and III. On Friday, July 23, 1993, Knickerbocker telephoned the Florida Commission on Ethics (Commission) office in Tallahassee and sought an opinion from the Commission's staff. He talked with Public Information Officer, Helen Jones and advised her, among other things, that he had told his mother and brother not to buy the lots because of appearances. Knickerbocker also contacted the State Attorney's Office for the Eighteenth Judicial Circuit and asked a prosecutor there if it would be possible for the State Attorney to conduct an investigation of his conduct relative to Tracts I and III. On Monday, August 2, 1993, during a regularly scheduled public meeting, the Council approved the contract the city manager had negotiated for the purchase of Tract II.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that David Knickerbocker violated Sections 112.313(6) and 112.313(8), Florida Statutes; imposing a civil penalty of $2,000 per allegation ($4,000 total); and issuing a public censure and reprimand. DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1786EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-31 (Stipulated Findings of Fact): Accepted. Paragraphs 1-2: Accepted in substance. Paragraph 3: The first sentence is accepted in substance. The second sentence is accepted. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance to the extent that Knickerbocker initiated the discussion initially concerning the building, which led to a discussion of all three tracts. Paragraphs 6-7: Accepted in substance. Paragraph 8: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 9: The first sentence is accepted in substance. The last two sentences are rejected as constituting argument. Paragraph 10: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 11: The first sentence is accepted in substance. The second sentence is subordinate to the facts actually found. Paragraphs 12-17: Accepted in substance. Paragraph 18: The second sentence is rejected as constituting argument. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraphs 19-21: Accepted in substance. Paragraphs 22-23: Rejected as constituting argument. Paragraph 24: The first sentence is accepted in substance. The remainder is rejected as constituting argument. Paragraph 25: The last sentence is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as subordinate to the facts actually found. Paragraph 4: The first sentence is accepted. The second sentence is accepted in substance. The last sentence is rejected as unnecessary. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: Accepted in substance. Paragraph 7: Accepted. Paragraphs 8-10: Accepted in substance. Paragraphs 11-12: Rejected as unnecessary and subordinate to the facts found. Paragraph 13: Accepted in substance. Paragraph 14: Rejected as subordinate to the facts actually found. Paragraphs 15-17: Accepted in substance. Paragraph 18: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraph 19: Rejected as irrelevant. Paragraph 20: Accepted in substance. Paragraph 21: Rejected as constituting argument. Paragraph 22: The first sentence is accepted in substance. The remainder is accepted in substance to the extent that these may have been things that Knickerbocker considered but rejected to the extent that it implies that he was unaware of the City's interest in purchasing the vacant lots. It is obvious the City's interest in the vacant lots would have an impact on the value of the lots. Paragraphs 23-24: Accepted in substance. Paragraph 25: Rejected to the extent that it is representative of the entire conversation between Hampton, Williford, and Knickerbocker. All three men discussed the interest in the purchase of the vacant lots by the city and the financing of such a purchase. Paragraph 26: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 27: Rejected as constituting argument and recitation of testimony. Paragraph 28: Rejected as constituting recitation of testimony. Paragraph 29: Having judged the credibility of the witnesses the first sentence is rejected. The first portion of the second sentence is accepted in substance. The second portion of the second sentence is rejected as constituting argument. Paragraphs 30-32: Rejected as constituting argument. Paragraphs 33-34: Rejected as unnecessary. Paragraph 35: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraph 36: Rejected as unnecessary. Paragraphs 37-38: Accepted in substance. Paragraph 39: Rejected as subordinate to the facts actually found. Paragraph 40: Rejected as constituting argument. Paragraph 41: Accepted in substance. Paragraph 42: The first sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 43: Rejected as recitation of testimony. Paragraphs 44-45: Accepted in substance. Paragraph 46: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The last sentence is rejected as unnecessary. Paragraph 47: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 48: Rejected as unnecessary. Paragraph 49: Rejected as constituting recitation of testimony. Paragraph 50: Rejected as constituting argument. Paragraph 51: Accepted in substance. Paragraph 52: Rejected as subordinate to the facts actually found. Paragraphs 53-55: Accepted in substance. Paragraph 56: Accepted in substance to the extent that one of the reasons that Mrs. Knickerbocker did not go through with the transaction was because of the encumbrances on the property, but rejected to the extent that it implies that was the only reason. Tom Knickerbocker testified that his mother told him that one of the reasons she was not going to continue with the purchase was that it did not look good with Knickerbocker running for mayor. Paragraph 57: The first sentence is accepted in substance. The second sentence is accepted in substance as to what Knickerbocker told Scuro but not to the extent that it implies that that was the only reason she did not continue with the purchase. Paragraph 58: Accepted in substance. Paragraphs 59-60: Rejected as unnecessary. Paragraph 61: Having judged the credibility of the witnesses, it is rejected. Paragraph 62: The first sentence is accepted in substance that Knickerbocker told Scuro that he was unaware of the City's interest in the vacant lots but rejected to the extent that the statement was true. The second sentence is accepted in substance. Having judged the credibility of the witness, I reject the last two sentences. Paragraph 63: The first two sentences are accepted in substance as to what Knickerbocker told Williford, but rejected to the extent that it implies that what Knickerbocker told Williford about being unaware of the City's interests in the lots was true. The remainder is rejected as constituting argument. Paragraphs 64-65: Rejected as unnecessary. Paragraph 66: The first sentence is accepted in substance. The second sentence is accepted to the extent that Ms. Jones relayed the opinion of the attorney who had reviewed her typed notes of the conversation and that the attorney's opinion was based on those notes. It should be noted that the attorney did opine that there would probably be no problem with Section 112.313(8) as long as the information used came from public records or public meetings and that the attorney did not give an opinion concerning Section 112.313(6). Paragraph 67: The first sentence is accepted in substance. The second sentence is rejected as not supported by competent substantial evidence. Paragraph 68: The first sentence is accepted in substance. The second sentence is subordinate to the facts actually found. Paragraph 69: Rejected as constituting argument. Paragraph 70: Rejected as subordinate to the facts found. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty E. Moore, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Michael L. Gore, Esquire 20 North Orange Avenue, Suite 1000 Orlando, Florida 32801 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (e), and (k), Florida Statutes, 1/ by: committing fraud, deceit, dishonesty, or breach of trust in a business transaction; acting as a broker; and failing to place funds with her registered employer; and if so, what, if any, penalty should be imposed.
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 licensed as a real estate sales person under license number 0555229. The last license issued to Respondent was issued as a sales person percentage A.A. Carnes, Inc., 1399 W. Highway 434, Longwood, Florida 32750. In August, 1993, Respondent operated as a licensed real estate sales person for Mannix Realty, Inc. Respondent managed rental property located at 3551 Malona Drive in Orlando, Florida. The rental property was owned by Ramesh and Harjit Zala who lived outside the state (the "Zalas" property). On November 1, 1993, Respondent solicited and negotiated a lease agreement with Scott and Winifred Houldin at the monthly rental of $2,100 (the "tenants"). The tenants paid two months rent to Respondent as a reservation deposit. Respondent appropriated the reservation deposit and rental income for her own personal use. She failed to disclose the rental agreement, reservation deposit, or rental income to Mr. Amos W. Harris, Respondent's broker. Respondent requested the owners and the tenants to direct all correspondence to Respondent's home address. The owners and tenants complied with Respondent's request. Respondent did not disclose the transaction to Mr. Harris. Respondent neither accounted for nor returned the rental funds to her broker or to the owners. In August 1993, Respondent managed rental property located at 1346 Stearman Court in Orlando and owned by Robert and Patricia Sheetz (the "Sheetz" property). The owners lived outside the state. After Respondent assumed responsibility for the Sheetz property, the rental income declined and expenses increased. Although the Sheetz property was rented, Respondent failed to deliver the rental income from the Sheetz property. In December, 1993, the owners discovered that the rental property was in fact occupied. They informed Mr. Harris, and demanded delivery of the rental income. Mr. Harris was unaware that the property was rented or that Respondent had failed to deliver the rental income from the property. On December 29, 1993, Mr. Harris confronted Respondent. Respondent paid $475 of the rental income to the owners of the rental property. Mr. Harris subsequently terminated Respondent's employment.
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), (e), (k), and 475.42(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 27th day of March, 1996, in Tallahassee, Florida. DANIEL S. 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 27th day of March 1996.
Findings Of Fact Seymour Astern, Respondent, is registered as a real estate salesman in Florida and has been so registered for approximately 15 years. While employed by Las Vegas Land in the early 1970's as sales manager promoting out-of-state land sales, Respondent, as well as the developer of the land was indicted on numerous counts of mail fraud, misrepresentation, etc. Initially there were 23 felony charges against Respondent, all related to fraud and misrepresentation involving real estate sales. Approximately one and one half years after being first charged, Respondent's attorney worked out an arrangement with the U.S. Attorney where Respondent would plead guilty to the charge of accessory after the fact, a misdemeanor, and the felony counts would be dismissed. Accordingly, on May 20, 1974, Respondent pleaded guilty to a violation of Title 18, Section 3, United States Code and was sentenced to he confined for 30 days and fined $500. The information to which Respondent pleaded guilty alleged that Respondent, knowing that one Lanvin had made a false report to the Department of Housing and Urban Development in violation of 18 U.S.C. 1012 did, knowingly and willfully assist said Lanvin in order to hinder and prevent his apprehension for trial and punishment. While testifying in his own behalf Respondent admitted that he was acting as an Arizona sales agent for the Nevada land developer, Lanvin, who was subsequently convicted of mail fraud. Astern disclaimed personal knowledge of Lanvin's activities, contending that he only promoted the meetings of groups to who sales pitches were made leading to investment in Nevada land. At the time he pleaded guilty to the charge of accessory after the fact, Respondent contends he did so on the assumption that the charge would be nolle prossed. He was aware that his plea of guilty was the basis for the U.S. Attorney dropping the felony charges against him and he fully understood the meaning of nolle prosequi. Yet he testified that had he known the charges would not be nolle prossed he would not have pleaded guilty, but would have gone to trial on the felony charges for mail fraud, misrepresentation, etc. In late-filed Exhibit 5 the attorney who represented Astern at his trial in Arizona indicates he arranged for a plea of no contest to the misdemeanor charge of accessory after the fact and understood that such a conviction would not affect Respondent's Florida real estate license. In Exhibit 5 no mention is made of the charges ever being nolle prossed or of the sentence of the court being of a nature to shock either him or his client.
