Findings Of Fact The testimony revealed that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. The application revealed that Defendant Frank Viruet (FREC Progress Docket 2856) was to become the Active Firm Member Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; that Lee Klein was to become President and Director of the company. Testimony shows that Carol Bauman is the wife of Defendant Bernard Bauman (Progress Docket 2857); that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman (FREC Progress Docket 2858) is the son of Bernard Bauman. Subsequent to filing said corporate application For registration with the Commission, evidence reveals that the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that along with each change, a new application For corporate registration was later filed with the commission. It was noted that the stated officers and active firm members broker remain as stated in the initial corporate application For registration. Thus, it can be concluded For all legal purposes that the above corporate entities are one and the same. Count I of the Administrative Complaint filed herein, reveals that according to the certificate filed with the Commission's chairman dated December 3, which was offered into evidence by Plaintiff and admitted, during the period November 1, 1975 to the date of said certificate, i.e., December 3, 1976, which covers all dates material to the complaint herein, no registration was issued to or held by either of said corporations, Land Re-Sale Service, Inc., Noble Realty Corporation or Deed Realty, Inc. This was further confirmed by the testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, who was to have become the active firm member broker For the above entities. Approximately December 2, 1975, Land Re-Sale Service, Inc. entered into a written lease For office premises known as Room 212, Nankin Building, 16499 N.E. 19th Avenue, North Miami Beach, Florida For the period January 1 through December 31, 1976 (A copy of the lease was entered into evidence by stipulation.) The unrebutted testimony of Plaintiff Reagan reveals that he observed during his investigation of this cause a building directory on the ground entrance floor to the Nankin Building displaying the name Noble Realty, Inc., Room 212 and a similar display on the building directory which was located on the second floor. Plaintiff's witness Peter King, a representative of and For Southern Bell Telephone Company testified that on December 27, 1975, three phones were installed in Room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc. and that from January 2 to January 16, approximately 575 calls were made from the stated phones all during evening hours to out-of-state numbers. Jeffrey Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but failed to recall specifically the number of calls nor did he have records to substantiate this fact. Bernard Bauman testified that from such solicitations, approximately 4 listings were obtained accompanied by an advance fee of $375.00 For each listing. When he was advised by the Commission's Investigator that the operation they were conducting was in violation of the licensing law by reason that no registration had been issued to the company and that all who are engaged in real estate activities therein were in violation of the license law (Chapter 475, F.S.) the premises were closed and all real estate activities ceased. This was further confirmed and unrebutted by plaintiff Reagan. As to Count II, the evidence established that, as stated above, the Defendants Bernard and Jeffrey Bauman had solicited real estate sales listings with representations to out-of-state property owners that listings would in fact be published and disseminated to brokers nationwide. Both Jeffrey and Bernard Bauman admitted that their listings were never published or otherwise disseminated to brokers. Bernard Bauman's testimony reveals that no monies received were returned to senders. There is no evidence introduced to show that Defendant Jeffrey Bauman knew, at the time of soliciting, that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation. As to Count III, plaintiff alleges that the above acts as set Forth above established a course of conduct by defendant upon which his revocation or registration should issue.
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, 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 February, 1982.
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in the case are whether Respondent's real estate broker's license had been revoked when he applied for a mortgage broker's license and whether Respondent falsely answered certain questions on his application for a mortgage broker's license.
Findings Of Fact Respondent is currently licensed as a mortgage broker in the State of Florida. He holds license number HA 056265422-5P. He had been licensed continuously since August 5, 1986. Respondent previously has been licensed as a real estate salesman in the State of Florida. By Administrative Complaint filed March 1, 1985, the Department of Professional Regulation, Division of Real Estate, alleged, among other things, that Respondent was guilty of fraud, misrepresentation, concealment, and breach of trust, among other things, in connection with an improper disbursement from an escrow account. Following a hearing on January 17, 1986, a Recommended Order entered April 18, 1986, found that Respondent was, as to the above-described allegations, guilty "at least of culpable negligence and breach of trust" and recommended that Respondent's license be suspended for one year. After a hearing on June 17, 1986, the Division of Real Estate entered a Final Order June 30, 1986, effective 30 days thereafter, adopting the findings of fact and conclusions of law of the Recommended Order, but revoking rather than suspending Respondent's license. By Application for Registration as a Mortgage Broker signed by Respondent on March 22, 1986, Respondent applied for a mortgage broker's license (March Application). The application was filed on March 25, 1986. Question 19 of the March Application asks: Has any judgement or decree of a court or other judicial, administrative or quasi-judicial tribunal been entered against you, or is any such case pending in this or any other state, province, district, territory, possession or nation, in which you were charged in the petition, complaint, declaration, answer, counterclaim or other pleading with any fraudulent or dishonest dealing? (If your answer is in the affirmative, attach complete signed notarized statement of the charges and facts, together with the name and location of the court in which the proceedings were had or are pending.) Respondent answered this question, "no." By Application for Registration as a Mortgage Broker signed by Respondent on July 1, 1986, Respondent applied for a mortgage solicitor's license (July Application). The application was filed on July 9, 1986, and approved by Petitioner on July 31, 1986. Question 16 on the July Application asks whether the applicant is currently licensed in any state as a real estate broker or salesman. Respondent answered this question, "no." Question 17 on the July Application asks: "Has your license of any kind ever been denied, suspended or revoked?" The question then asks for a complete signed statement of the charges and facts in full detail. Respondent answered Question 17, "no." On July 28, 1986, Respondent sent a notarized letter to Petitioner concerning the July Application. In the letter, he elaborated upon the circumstances surrounding the answer to an unrelated question, but did not elaborate upon the above-described answers Respondent did not answer accurately Question 19 on the March Application. Over a year earlier, Respondent had been charged with fraudulent dealing. Respondent had no basis for omitting this item from the application because, even though he had not received the recommended order, the case obviously was still pending at the time of submitting the March Application. Respondent's incorrect answer was an intentional attempt to conceal from Petitioner the license-revocation proceeding. Although Respondent's answer to Question 16 on the July Application may have been accurate because he had relinquished his license, his answer to Question 17 was inaccurate. Respondent testified that he understood that the Final Order, which had just been issued, had not yet taken effect, so that his license had not yet been revoked. However, without further elaboration, the answer to Question 17 was incomplete and misleading, regardless of Respondent's understanding of the technical status of his license. Respondent knew that his answer was incomplete and would mislead Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance, Division of Finance, enter a Final Order revoking the mortgage broker's license of Respondent. DONE and ENTERED this 26th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 26th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4380 Treatment Accorded Petitioner's Proposed Findings 1-7 Adopted or adopted in substance. 8 Rejected as irrelevant. 9-29 Adopted or adopted in substance. 30-32 Rejected as subordinate and recitation of testimony. 33-34 Rejected as legal argument. 35-36 Adopted. 37-38 and 40 Rejected as legal argument. 39 and 41-42 Adopted or adopted in substance. Rejected as legal argument. Rejected as irrelevant. 45-50 Rejected as recitation of testimony. Treatment Accorded Respondent's Proposed Findings 1-7 Adopted or adopted in substance. 8 Rejected as irrelevant. 9-13 Adopted. 14 Rejected as against the greater weight of the evidence. 15-21 Adopted or adopted in substance. 22-23 Rejected as against the greater weight of the evidence. 24-29 Adopted or adopted in substance. 30-31 Rejected as recitation of testimony. Adopted in substance. Rejected as against the greater weight of the evidence. 34-38 Rejected as irrelevant. 39 Rejected as against the greater weight of the evidence. COPIES FURNISHED: Michael J. James 258 East Altamonte Drive Altamonte Springs, FL 32701 Elise M. Greenbaum Assistant General Counsel Office of the Comptroller 400 West Robinson Street, Suite 501 Orlando, FL 32801 Hon. Gerald Lewis Comptroller The Capitol Tallahassee, FL 32399-0350 Charles L. Stutts General Counsel The Capitol, Plaza Level Tallahassee, FL 32399-0350
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 material hereto, Fetters has been a licensed real estate broker in the State of Florida, trading as RONTRON Realty and Investment, with offices in Largo, Florida, and Choudhury has been a licensed real estate salesperson at RONTRON Realty. Fetters was Choudhury's broker at all times material hereto. Stanley and Mary K. Jankiewicz listed their home for $189,000 with Harvey Seybold, a licensed real estate broker, and neighbor. On January 28, 1988, Choudhury contacted Seybold and asked to see the Jankiewicz house. Seybold showed the house that same day. On January 30, 1988, Choudhury presented a contract for the sale and purchase of the home to Seybold and Jankiewicz. The purchasers, John and Gail Taylor, offered $185,000, but this offer was unacceptable to Jankiewicz because it called for him to hold a $150,000 purchase money mortgage. Jankiewicz proposed a counteroffer, which still provided for a sales price of $185,000, but only required him to hold a purchase money mortgage of $25,000. It also required the Taylors to obtain a firm financing commitment within 45 days for a first mortgage in the amount of $129,000. The Taylors accepted this counteroffer, and the transaction was scheduled to close on March 30, 1988, as proposed in Jankiewicz' counteroffer. Jankiewicz and Seybold testified that Choudhury told them, on January 30, 1988, that the Taylors had a net worth of from $2 to $3 million, and that he had a copy of their financial statement in his office, which he had reviewed. They claim that he promised to provide them with a copy of this financial statement on February 1, 1988. Jankiewicz testified that Choudhury's representation about the financial condition of the Taylors was a significant inducement for him to propose his counteroffer, and he would not have gone through wish this sale had he known on January 30, 1988, what he subsequently learned about their net worth. Choudhury denies making any representation about the Taylors' net worth. He testified that he had only met the Taylors on one occasion, and had no way of knowing their net worth since he denies having a copy of their financial statement at that time. When the Taylors' financial statement was not provided on February 1, 1988, Jankiewicz and Seybold made repeated attempts to contact Choudhury, most of which were futile. He would not return their calls. Finally, on March 7, 1988, Choudhury did send Seybold a copy of the Taylors' financial statement, and Seybold immediately forwarded it to Jankiewicz. The financial statement is dated January 31, 1988, and indicates a net worth of $238,100. Choudhury testified that he forwarded this financial statement to Seybold as soon as he received it from the Taylors, but that when he looked it over he was "shocked". Choudhury offered no credible explanation of why he would be "shocked" to see the Taylors' financial statement, unless he had expected a far higher net worth. Yet, he testified that he had no knowledge of their net worth. Based upon the demeanor of the witnesses, and after considering the testimony of Choudhury, Seybold and Jankiewicz, as well as Choudhury's unexplained testimony about being "shocked" to see the Taylors' net worth, it is found that Choudhury did represent to Jankiewicz and Seybold on January 30, 1988, that the Taylors had a net worth of from $2 to $3 million. This statement was false, but it was a material inducement which led Jankiewicz to make his counteroffer, accepting a $25,000 purchase money mortgage. The contract for sale did not provide any contingency which addressed Jankiewicz' concerns about the Taylors' net worth. He and Seybold believed Choudhury's representations, and admitted at hearing that it was an oversight on their part not to insist on a contingency in the sales contract. They simply took Choudhury's word that he had seen their financial statement, and it showed a net worth of $2 to $3 million. When he received the Taylors' financial statement in early March, 1988, Jankiewicz tried to back out of the deal, but because there was no contingency in the sales contract, and because the Taylors threatened to sue him for breach of contract if he did not close, he went through with the sale. The sale closed, as scheduled, on March 30, 1988. The Taylors had obtained a first mortgage through bank financing in early March, and have subsequently made payments to Jankiewicz under the purchase money mortgage which he holds, although on occasion they have been late with their payments. At no time did Fetters participate in the discussions which took place with Jankiewicz and Seybold concerning this sale. Choudhury made all contacts with them, presented the sales contract, and attended the closing. The Petitioner's investigator, Leo Huddleston, visited Fetters on June 28, 1988, to examine Fetters' records concerning the Jankiewicz transaction, but Fetters brought no records with him to this meeting. He claimed that Choudhury had all of these records. Subsequently, he did provide Huddleston with escrow records showing a $20,000 deposit in his escrow account, and copies of three checks from the Taylors totaling $20,000, which he claimed he received as their deposit on the Jankiewicz house, and which he stated he then deposited in his escrow account. These checks do indicate on their face that they were for a house deposit. However, Fetters was never able to produce a copy of his deposit slips or bank records which would directly establish that the Taylors' checks were in fact deposited into his escrow account. There was no indication on the face of the checks that they were deposited into his escrow account, or that he had an escrow account established for this purpose. Fetters testified at hearing, that he had lost his bank records, and presumed that a former tenant had taken them when he moved. Fetters failed to keep adequate records of his escrow account that would allow an audit of funds deposited into, and withdrawn from, such account. He could not establish that he had an escrow account on which he was signatory. He was also negligent in failing to safeguard any such records which he may have had, and could not produce complete records of his escrow account which would establish that the Taylors' deposit checks were placed in his escrow account, and remained there until they were withdrawn by a $20,000 cashier's check that was exchanged at closing. Following initial investigation of a complaint filed by Jankiewicz against Fetters and Choudhury, a probable cause panel decided not to issue an Administrative Complaint, and they were informed, in August, 1988, that this complaint file had been closed. Subsequently, however, new evidence was discovered concerning the fact that Seybold had also been present on January 30, 1988, when Choudhury met with Jankiewicz, and Seybold confirmed Jankiewicz' recollection of Choudhury's statements. Thereupon, this complaint was resubmitted to a probable cause panel, and the Administrative Complaint which is at issue in this case was filed.
Recommendation Based upon the foregoing, it is recommended that Florida Real Estate Commission enter a Final Order suspending Respondent Fetters license for a period of six months, and suspending Respondent Choudhury's license for a period of one year. DONE AND ENTERED this 17th day of July, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX The Petitioner did not timely file Proposed Findings of Fact. Respondent Choudhury did file a Memorandum of Law which contains unnumbered paragraphs under a section referred to as "Facts". This Memorandum has been considered in the preparation of this Recommended Order, but specific rulings cannot be made on the matters contained in the section labeled "Facts" since this consists largely of argument on the evidence without any citation to the record as required by Rule 22I-6.031(3), F.A.C. Rulings on the Respondent Fetters' Proposed Findings of Fact: 1-2. Adopted in Finding 1. 3. Adopted in Findings 2, 8. 4-5. Adopted in Findings 3, 4. Rejected in Finding 5, and as argument on the evidence, rather than a proposed finding of fact. Adopted and Rejected in part in Findings 10, 11. Rejected in Finding 11. Not a proposed finding of fact. COPIES FURNISHED: ARTHUR R. SHELL, ESQUIRE DIVISION OF REAL ESTATE P. O. BOX 1900 ORLANDO, FLORIDA 32802 LESLIE M. CONKLIN, ESQUIRE 2120 U.S. 19, SOUTH SUITE 210 CLEARWATER, FLORIDA 34624 RONALD P. TEEVAN, ESQUIRE 200 NORTH GARDEN AVENUE SUITE A CLEARWATER, FLORIDA 34615 DARLENE F. KELLER DIVISION DIRECTOR P. O. BOX 1900 ORLANDO, FLORIDA 32802 KENNETH EASLEY, GENERAL COUNSEL NORTHWOOD CENTRE 1940 NORTH MONROE STREET SUITE 60 TALLAHASSEE, FLORIDA 32399-0792 =================================================================
Findings Of Fact The Respondent, Cluett Realty, Inc., is a licensed corporate real estate broker having been issued license number 0216798 and whose last known address is 4720 Palm Beach Boulevard, Fort Myers, Florida. The Respondent, Ernest H. Cluett II, is a licensed real estate broker having been issued license number 0191613 and at all material times was employed as a licensed real estate broker by Cluett Realty, Inc. In November, 1981, Mary Ann Knopic was shown a home in Cape Coral by the Respondents. She offered the owners $92,500 for the home with a $500.00 earnest money deposit. When the home was sold to another buyer, the Respondents and Knopic agreed that the Respondents would retain the $500.00 and attempt to find another home for the complainant. In December, 1981, the Respondents showed Knopic the Soviero home and Knopic made an offer on the home and secured the offer with an additional $1,500 security deposit. In late February, 1982, the complainant informed the Respondents that she would not close on the Soviero home. The complainant decided not to close because the cost of renovating the home exceeded the original estimate. Under these circumstances, the complainant was willing to lose her $2,000 deposit rather than spend $6,000 to renovate the Soviero home. On June 8, 1982, after the complainant agreed to the February disbursement, she sent the Respondents a letter demanding either a copy of the contract which amended the earnest money amount or a refund of her $1,500. Walter V. Horn, a Respondent, was not properly served and at final hearing the petitioner agreed that he was not a proper party to this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against the Respondents, Cluett Realty, Inc., Ernest H. Cluett II and Walter V. Born. DONE AND ENTERED this 11th day of July, 1984, at Tallahassee, Florida. SHARYN L. SMITH 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 11th day of July, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Legal Section Post Office Box 1900 Orlando, Florida Herbert A. Fried, Esquire 1625 Hendry Street, Suite 103 Fort Myers, Florida 33901 Mr. Walter V. Horn 4732 Dee Prado Boulevard Cape Coral, Florida 33904 Harold Huff, Executive 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
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
Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility, and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
