Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 JAMES E. BRADWELL , Hearing officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October 1985.
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
Findings Of Fact Based upon my observation of Respondent, and his testimony during the proceeding herein, the documentary evidence received, including a prehearing stipulation executed by counsel for the parties and the entire record compiled herein, the following relevant facts 1/ are found. Respondent, Stewart Sax, is a real estate salesman who holds License No. 0347241. Respondent is presently employed by Choice Rentals and Realty Corporation, 3365 North Federal Highway, Fort Lauderdale, Florida. The prosecution of this matter was initiated by Petitioner against Respondent based on an Administrative Complaint filed herein, signed August 3, 1981. On July 24, 1980, Respondent submitted an application for licensure with the Petitioner. In connection therewith, Respondent answered question No. 6 in the negative by asserting "No." That question reads in total: Have you ever been arrested for, or charged with commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violation), without regard to whether convicted, sentenced, pardoned or paroled? Respondent was first arrested on April 21, 1972, when he was charged with credit card theft in Atlanta, Georgia. At this time, he was approximately 22 years old and was a student at Emory University in Atlanta, Georgia. Respondent pled nolo contendere to the charges and received three years probation and a $500.00 fine based upon this plea. Respondent contends that the credit card belonged to a girl friend's mother and he initially had the right to use that credit card. Respondent was next arrested on January 25, 1974, when he was arrested for credit card theft, public indecency and public drunkenness in Atlanta. The charges on the first two counts were dismissed and Respondent received a 30-day suspended sentence on the public drunkenness charge. Respondent was next arrested on July 24, 1980, in Fort Lauderdale, and was charged with grand larceny and issuing a worthless check. The worthless check charge was nolle prosequi and the grand larceny charge was reduced to petty theft, to which Respondent pled no contest. Respondent was placed on probation for six (6) months; he paid $50.00 court costs and adjudication of guilt was withheld. On July 24, 1980, Respondent was again arrested for driving while intoxicated and with an expired driver's license. No information was issued on the driving while intoxicated charge and Respondent pled no contest to the expired driver's license charge. He paid $25.00 for court costs and adjudication was withheld. Finally, Respondent was arrested on July 30, 1980, and charged with prowling in Fort Lauderdale, Florida. These charges were dismissed. Respondent contends that he was under a great deal of pressure when he submitted his application for licensure and was of the opinion, based on representations of his former counsel, that he did not have to reveal these matters on applications, etc.; that these matters were dropped, and would not follow him in the future. (Prehearing Stipulation) As noted above, the matter was presented based upon a prehearing stipulation, prepared by counsel for the parties whereby Respondent admitted each of the allegations as contained in the Administrative Complaint with explanations for each allegation. Evidence presented at the hearing indicated that, except for the Public drunkenness charge, all remaining charges were either nolle prosequi, dismissed without any information being filed or adjudication was withheld and sentences were probated. Respondent has enjoyed success in his field as a real estate salesman since he has been licensed. Respondent as far as the record reveals, has not had any disciplinary charges brought against him since he has been licensed as a real estate salesman. Other professionals in the area have a high regard for Petitioner, both personally and professionally as a real estate salesman. Respondent is a highly intelligent real estate salesman who, it can be assumed, understood the application for licensure which he executed to become a real estate salesman. Based on the admissions contained in the prehearing stipulation and Respondent's testimony, his failure to truthfully answer all questions on his application, he (Respondent) violated the provisions of Chapter 475.17(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's real estate License No. 0347241 be REVOKED. That Respondent be afforded an opportunity to reapply for a license as a real estate salesman and that pending a decision by the Board on Respondent's reapplication for licensure, the Board spend the revocation referred to in the Recommendation above. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
Findings Of Fact The Petitioner made application for licensure as a Florida real estate salesman on November 20, 1990. His application was received by the Respondent on December 12, 1990. The Respondent advised the Petitioner by letter dated February 28, 1991 of its denial of the Petitioner's application on February 20, 1991 and of the Petitioner's right to a hearing pursuant to Chapter 120, Florida Statutes. The Petitioner filed a timely request for a formal hearing. The denial of the Respondent's application for licensure was based upon the Petitioner's answers to Question Nos. 7 and 15 on the application. Question No. 7 stated: "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?" The Petitioner answered "yes" to Question No. 7 and gave the following details: On June 26, 1986 I pleaded guilty to one count of sale or delivery of dilaudid, a second degree felony, and was sentenced to four (4) months in jail with a reduced sentence at 73 days with no probation. Question No. 15 stated: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending? Have you ever resigned or withdrawn from, or surrendered, any license, registration or permit to practice any regulated profession, occupation or vocation while such charges were pending? The Petitioner answered "no" to both parts of Question No. 15. On November 16, 1985, the Petitioner was arrested and subsequently plead guilty to selling Dilaudid, a controlled substance. The court sentenced the Petitioner to spend time in a halfway house and pay a $5,000.00 fine. The parties stipulated that this was a felony conviction. The Petitioner had been previously licensed as a Florida real estate salesman and upon his conviction, had notified the Respondent, as required by law. After notification of the Petitioner's conviction, the Respondent instituted an administrative complaint against the Petitioner to revoke his Florida real estate license. On February 18, 1987, the Respondent entered its Final Order revoking the Petitioner's license because of his conviction of a felony. The Petitioner explained that he incorrectly answered Question No. 15 by mistake and without the intent to mislead the Respondent. The Petitioner pointed out that he had originally notified the Respondent of his conviction and had revealed his conviction in his answer to Question No. 7 on the application. The Petitioner introduced letters from friends and associates that he was a person of good character, who was fully rehabilitated. The Petitioner stated that he had been a drug salesman and that he had been approached by a woman whom he knew and who asked him to provide Dilaudid to her for a relative who was dying of cancer. The Petitioner provided the woman with the Dilaudid; she paid him a token amount of money "for his trouble"; and the Petitioner was arrested in a "sting" operation in which the woman was participating. The court sentenced the Petitioner to four (4) months in a halfway house and no probation. The Petitioner appeared contrite and rehabilitated. He possesses the good character necessary for licensure as a Florida real estate salesman.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petitioner should be re-licensed as a Florida real estate salesman. DONE AND ENTERED this 18th day of October, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of October, 1991. COPIES FURNISHED: Darlene Keller, Division Director Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Larry F. Bryant 4402 Travelers Road Jacksonville, FL 32210 Joselyn M. Price, Esq. Department of Legal Affairs 400 West Robinson Street Suite 107 South Orlando, FL 32801
The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986
The Issue The issues to be resolved in the proceeding concern whether the Respondent’s license as a Florida real estate broker should be subjected to discipline for allegedly being guilty of culpable negligence or breach of trust in a business transaction, in purported violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice and entry into practice of real estate brokers and salesperson. Included within that responsibility is a duty to prosecute administrative complaints upon findings of probable cause that regulated licensees have violated the laws of Florida pertaining to real estate licensure and practice, most particularly in this proceeding Section 475.25, Florida Statutes. The Respondent at all time pertinent hereto was and still is a real estate broker licensed as such in the State of Florida. He has been issued license number 0505444 in accordance with relevant provisions of Chapter 475, Florida Statutes. The Respondent is also a licensed general contractor or residential contractor in the State of Florida. On December 1, 1993, the Respondent, as President of Sandlot Construction Company, negotiated a contract between that firm, as seller, and Edward D. and Ruby M. Crawford, as buyers, whereby the buyers purchased Lot 23 at Holley by the Sea Subdivision in Santa Rose County. The purchase price for the lot paid by the Crawfords was $13,000. On that date the Respondent, as Pesident of Sandlot Construction Company, negotiated a construction agreement between Sandlot Construction Company and the Crawfords for construction of a home for the Crawfords residence on that lot. Months later, on September 8, 1994, the Crawfords paid Sandlot Construction Company $800, by check, to pay for the building of a fireplace in the house under construction by Sandlot Construction Company. When the construction was completed in the latter part of 1994, the buyer discovered that certain sub-contractors and suppliers had placed mechanics’ and materialmens’ liens on the property. This was a surprise to the Crawfords because they had paid all outstanding amounts agreed upon for the construction of the home. This situation occurred, however, because the Respondent had received the moneys for the various items of labor and materials for the construction of the house but had failed to pay the subcontractors and suppliers who had filed the subject liens on the real property in question. This difficulty arose because the Respondent diverted the funds which should have been used to pay the subcontractors and suppliers to other purposes. This situation caused the unhappy result that, in December 1994, the Crawfords were forced to pay these subcontractor and suppler lienors approximately $6,547.50 to defray their outstanding claims and to secure the satisfaction of their liens on the property. In December of 1994, the buyers also discovered that the Respondent had failed to pay the fireplace vendor, “Hearth and Home” the $800 price for the fireplace which had been ordered. The vendor built the fireplace in the home under construction and the buyers were thus obligated to pay for the fireplace. The Respondent failed to pay for the fireplace out of the construction moneys derived from the buyers which had been placed at his disposal as contractor and President of Sandlot Construction Company, to pay for all construction costs. The fireplace vendor filed a mechanics lien against the property for failure to pay the $800 claim. On December 20, 1994, the buyers thus were forced to pay an additional $800 to the Hearth and Home Company in order to satisfy the lien placed on their real property. Consequently, the buyers, as a result of the Respondent’s use of their funds for other purposes, which may even have included other aspects of the construction, were forced to pay the subcontractors and suppliers $7,347.50 more for the construction of the home than they had contracted with the Respondent to pay. The Respondent acknowledged that he was obligated to pay this amount of money to the subcontractors, suppliers and materialmen involved in the liens and that he simply had run out of funds because the funds had been used for other purposes (it was not proven that he diverted the funds for his personal use). The Respondent has thus acknowledged that he owes the Crawfords this sum of money, fully intends, and prior to this proceeding had assured them he intended, to re-pay them. He has not done so as yet. The Respondent, and the above-named company of which he is President, is in straitened financial circumstances. Nevertheless, at the time the Respondent had the custody and control of the construction funds in question and failed to use them for the proper purpose of paying the subcontractors, suppliers and materialmen who filed the liens, he knew that the funds in question should have been used for the proper purpose and failed to do so, causing the above-referenced pecuniary loss to the buyers.
Findings Of Fact Based upon the documentary evidence received, my observation of the witnesses while testifying and the entire record compiled herein, I hereby-make the following findings of fact: Respondent, Harry Gorman, is presently, and has been since September 1982, a licensed real estate salesman in the State of Florida (license number 0229673). Respondent is the owner of Lee County Property Exchange, Inc. Lee County Property Exchange, Inc. is organized for the primary purpose of buying and selling real estate lots. The company customarily buys a group of unimproved residential lots and sells them to "wholesalers". Ms. Mary A. Bosley responded to a mass mail advertisement provided by Lee County Property Exchange. Thereafter, on March 31, 1983, Respondent, acting for Lee County Property Exchange as purchaser,, entered into two sales contracts for the purpose of buying two unimproved residential lots with Mary A. Bosley, as seller. Ms. Bosley was represented by counsel at the signing of the contracts. The contracts provided that the purchase price for each lot would be $1,000. The transaction was to close on or before August 1, 1983. The transaction did not close as anticipated on August 1, 1983. From approximately August 22, 1983 to March 15, 1985, Respondent requested and was granted four six month extensions of the closing date. Ms. Bosley granted each extension because she wanted to sell the lots. In accordance with the terms of the contracts between Ms. Bosley and Lee County Property Exchange, two $25.00 earnest money deposits (EMD) were to be held in escrow by Lehigh Title Company, Inc. On April 21, 1983, Ms. Barbara Mast, president of Lehigh Title Company, received the two contracts with the accompanying $25.00 EMD's and "opened a file". Ms. Mast was later informed that the Bosley contracts were "on hold". on March 19, 1985, after the expiration of the final extension of closing date granted by Ms. Bosley, Mr. Burney J. Carter, Esquire, attorney for Ms. Bosley, mailed a letter to Mr. Gorman demanding return of the two $25.00 EMD's. Lehigh Title Company did not receive a request from Ms. Bosley nor Respondent that the two EMD's be taken out of escrow. Neither Respondent nor Ms. Bosley received the two $25.00 EMD's back from Lehigh Title Company. Respondent, upon speaking with a DPR investigator, did not agree to personally mail a check to Ms. Bosley, for the two $25.00 EMD's, but stated that, in his view, Ms. Bosley was entitled to return of the money and that Lehigh Title Company was responsible for sending it to her. Respondent failed to close the two transactions as purchases for economic reasons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued finding the Respondent Harry G. Gorman, not guilty of the allegations contained in the Administrative Complaint. DONE and ORDERED this 29th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 29th day of January, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire; Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Jack J. Pankow, Esquire P. O. Box 580 Ft. Myers, Florida 33902 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street O. Box 1900 Orlando, Florida 32802 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The parties were given 20 days from the date the original transcript was filed with the Division of Administrative Hearings in which to file their proposed findings. Petitioner failed to submit any proposed findings of fact within the specified time limits. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 2, 3 and 4. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 8. The evidence was unclear as to whether the two $25.00 EMD's were in the escrow account up to the date of hearing. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8, (noting the obvious typographical error in Respondent's failure to include the word "not" between "has" and "made"). Partially accepted in Findings of Fact 2, 3 and 4. Respondent's assertion that "Harry Gorman was not acting in his professional capacity as a licensed real estate salesman "is rejected as a conclusion of law and as unnecessary to a resolution of this case. The Respondent, as a licensed real estate salesman, could be subject to discipline for fraud, misrepresentation and/or breach of trust in a business transaction whether or not the fraud, misrepresentation or breach of trust occurred during the course of his "real estate activities".
