Findings Of Fact Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500. DONE and ENTERED this 16th day of April, 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 16th day of April, 1982.
The Issue Did Frederick Anthony III, Inc., employ persons who were not licensed? Did Benjamin Foster have knowledge that these individuals were employed? Was Benjamin Foster responsible for the employment of unlicensed individuals? Was Benjamin Foster liable for Anthony John Bascone's actions as a real estate salesman? Did Benjamin Foster violate Sections 475.42(1)(c) and 475.25(1)(a), Florida Statutes?
Findings Of Fact Notice of the formal hearing was given to all parties as required by the statutes and rules. Benjamin C. Foster is a real estate broker holding License No. 0151634 issued by the Board of Real Estate. Frederick Anthony III, Inc. (FA III), is a Florida corporate real estate broker holding License No. 0215470 issued by the Board. Foster was the active firm member of the corporation. Donald McDonald and Delores McDonald were employed by FA III. While so employed, both of these persons engaged in the sale of real estate. Neither Delores McDonald nor Donald McDonald were licensed at the times in question. Foster agreed to be the active firm member for FA III because Anthony John Bascone and Frederick Hall, a real estate salesman, wanted to start a brokerage firm. Bascone and Hall had business connections with whom Foster wanted to affiliate, and Foster concluded that his function as active firm member with FA III would lead to business opportunities for FA III and for Foster's other real estate business. Bascone and Hall were corporate officers of FA III and managed the day-to-day activities of the office. They hired Donald and Delores McDonald as salespersons. Foster never met Delores McDonald and did not employ her. Foster met with Donald McDonald, Delores McDonald's husband, who said he was selling real estate at that time. Foster sent Donald McDonald to Bascone and Hall to be interviewed. Under Foster's agreement with Bascone and Hall, they would make the initial hiring determinations for their sales personnel and Foster would process the personnel as salespersons affiliated with the company. According to Foster's agreement with Bascone, Bascone would not engage in real estate sales until after he was license. Bascone was seeking a brokerage license, and it was their intent that Bascone would become the active firm member. The allegations involving Bascone's acting as a real estate professional were based on a transaction which was undisclosed to Hall or Foster until after the fact. This transaction involved the payment of a commission directly to Bascone by the seller which was unreported to Foster or Hall. Foster did not exercise close supervision over the activities of FA III.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of Benjamin C. Foster be suspended for three months, and that the license of Frederick Anthony III, Inc., be revoked. DONE and ORDERED this 3rd day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire 2701 Cleveland Avenue, Suite 10 Post Office Box 729 Fort Myers, Florida 33902 Mr. Benjamin C. Foster 5354 Emily Drive, Southwest Fort Myers, Florida 33908 Frederick Anthony III, Inc. 3920 Orange Grove Boulevard North Fort Myers, Florida 33903 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him. On May 22, 1981, the Respondent completed his application for licensure in Florida. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license. The Respondent's Michigan license was revoked on or about July 2, 1982. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be REVOKED. THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Steven Warm, Esquire 101 North Federal Highway Boca Raton, Florida 33432 William M. Furlow, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, prior to being licensed as a real estate salesman, committed, among other things, fraud and misrepresentation in violation of Section 475.25(1) and negligence in violation of Section 475.25(3), Florida Statutes (1978), by selling promissory notes which he represented were secured by first mortgages, when they were, in fact, secured by subordinate mortgages; and, if so, the appropriate disciplinary penalty which should be imposed by the Board of Real Estate.
Findings Of Fact Respondent Evers qualified for, and was issued real estate salesman's license no. 0132634 by the Board on June 28, 1974. His license, at his request, has been placed on inactive status since April, 1979. (Testimony of Evers, P.E. 1) During 1972 and 1973, Evers was a mortgage broker and registered security salesman licensed by the Florida Division of Finance and Department of Banking and Finance, Division of Securities. He was employed as a mortgage broker and security salesman by the Washington Development Corporation, with headquarters in St. Petersburg, Florida. (Testimony of Evers, P.E. 2) As a mortgage broker and security salesman, Evers agreed to advertise and sell promissory notes, secured by what purported to be first mortgages, prepared and executed by the Washington Development Corporation ("Corporation"). He was to receive a commission on each completed sale. The Corporation supplied Evers with advertising forms and its promissory notes and mortgage forms. Its salesman, Gary George, taught him how to effectively explain and sell the notes and mortgages, and pointed out the express provision in the mortgage form where the Corporation covenants that the property covered by the mortgage was free and clear of all encumberances except real estate taxes. . . ." George advised Evers to inform prospective purchasers that they would receive a first mortgage, advice which Evers customarily followed. Evers' representations made in connection with sales to Gerald Pendry, Richard C. Tymick, and Eva Baird form the basis for this disciplinary proceeding. [SALE OF NOTE AND MORTGAGE TO GERALD PENDRY] On April 1, 1973, Evers sold to Gerald C. Pendry and his wife a promissory note, with mortgage executed by the Corporation in the amount of $2,000. The mortgage covered Lot 1, Block 18, of the Carlton Village subdivision, Lake County7 Florida. The note obligated the Corporation to pay Pendry 1 percent interest per month, over a period of 24 months. The mortgage, on its face, purported to be a first mortgage. In negotiating the sale with Pendry, Evers expressly represented that the mortgage securing the note was a first mortgage, and such representation induced Pendry to purchase the note. (Testimony of Pendry, Evers, P.E. 4) Subsequently, the Corporation defaulted on its payments; when Pendry brought a foreclosure action against the mortgaged property, he learned that his mortgage was subordinate to a prior and superior mortgage held by Melvin J. Haber. As a result of his subordinate mortgage, Pendry suffered financial loss. (Testimony of Pendry, P.E. 3) [SALE OF NOTE AND MORTGAGE TO RICHARD C. TYMICK] On March 1, 1973, Evers sold to Richard C. Tymick and his wife two promissory notes, one in the amount of $2,500 and the other in the amount of $2,900, each executed and secured by a mortgage given by the Corporation. The mortgages securing the notes covered Lot 8, Block 41, and Lot 12, Block 22, Carlton Village subdivision, Lake County, Florida. The notes obligated the Corporation to pay interest of 1 percent per month over a 48-month period. In negotiating the sale of the two notes, Evers led Tymick to reasonably believe that the notes were secured by first mortgages. (Testimony of Tymick, P.E. 5) The Corporation subsequently defaulted on its payments under the note. When Tymick Instituted a foreclosure proceeding, he learned that his mortgages were subordinate and inferior to a prior mortgage covering the same property held by Melvin Haber. Because of the subordinate nature of his mortgage, Tymick suffered financial loss. (Testimony of Tymick, P.E. 3) [SALE OF NOTE AND MORTGAGE TO EVA BAIRD] On or about October 20, 1972, Evers sold two Corporation promissory notes, secured by mortgages, to Eva R. and Joseph T. Baird. The notes were issued in the total amount of $10,000. The mortgages covered lots located in the Carlton Village subdivision, Lake County, Florida, and Evers affirmatively represented to Eva Baird that they were first mortgages. Without such representation, Eva Baird would not have purchased the promissory notes in question. (Testimony of Eva Biard, P.E. 6) Tie Corporation eventually defaulted on its payments under the notes. It was not until Eva Baird initiated a foreclosure proceeding against the properties that she learned her mortgages were subordinate and inferior to prior mortgages covering the same properties. As a result of her inferior mortgages, she suffered financial loss. (Testimony of Eva Baird) In 1975, the Department of Banking and Finance, Division of Securities, brought a disciplinary action against Evers alleging that he committed fraud by selling the Corporation mortgages and notes to certain persons, including Pendry, Tymick and Baird. After a formal evidentiary hearing, the Department entered a final order dated December 22, 1976, concluding that Evers, by failing to disclose the existence of prior mortgages and ensure that the mortgages were first mortgages (as he represented), committed fraud and a violation of Section 517.301, Florida Statutes. As a result, the Department suspended Evers' security salesman's license for a period of one year. (P.E. 2) At the time he sold the notes and mortgages to Pendry, Tymick and Baird, Evers did not know that the Corporation's mortgages were not, in fact, first mortgages; he believed and wholly relied on Gary George's assurances to him that the mortgages were what they purported to be-first mortgages. He made no attempt to investigate or independently verify the status of these mortgages. Evers, however, had no intent to falsely represent these mortgages to the purchasers; neither did he intend to mislead or deceive them. (Testimony of Evers) [EVIDENCE IN MITIGATION] Evers did not learn that the mortgages in question were not first mortgages until the latter part of 1974. He then made an honest effort to notify and assist those persons who had purchased Corporation notes and mortgages through him. He helped to arrange legal representation for them and defray the cost of having abstracts of title prepared. (Testimony of Evers, R.E. 1-8) Evers suffered considerable financial loss and interruption of Iris livelihood because of his sale of Corporation mortgages and notes. Because he had also purchased a Corporation mortgage which later turned out to be other than a first mortgage, he lost $2,700. Because of the Board's investigation and prosecution of this case, he placed his real estate salesman's license on inactive status to avoid embarrassment to his employer. (Testimony of Evers) There is no evidence to indicate that Evers has been other than a competent and conscientious salesman since obtaining his real estate salesman's license in 1974. A registered real estate salesman who worked with Evers described him as an exceptional salesman who paid close attention to details and made a special effort to keep clients advised of his progress. (Testimony of James Bradfield)
Recommendation Conclusion: The Board is without statutory authority and jurisdiction to discipline the Respondent for misconduct which occurred prior to his being licensed as a real estate salesman. The Amended Administrative Complaint, and the charges therein, should he dismissed. Recommendation: That the Board dismiss its Amended Administrative Complaint. Background By Amended Administrative Complaint filed January 18, 1979, the Petitioner Hoard of Real Estate ("Board") charged Respondent Dovard J. Evers ("Evers") with three counts of violating Sections 475.25(1)(a) and 475.25(3), Florida Statutes (1978), by selling notes which he represented were secured by first mortgages when, in fact, they were secured by second mortgages. The alleged misconduct occurred during 1972 and 1973, before Evers qualified for and received his real estate salesmans license. On February 6, 1979, Evers timely requested a Section 120.57 hearing to dispute the allegations in the Board's Administrative Complaint and filed a Motion to Quash Complaint. After oral arguments, Evers' Motion to Quash was denied by the Board on March 14, 1979. It was not until February 13, 1980, that Evers' request for a hearing was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer. The final hearing was initially set for April 15, 1980. On April 11, 1980, upon motion of the Board and without objection by Evers, the hearing was continued in order to allow the Board to reconsider its decision to prosecute this complaint. Subsequently, final hearing was reset for July 7, 1980. At hearing, the Board called Gerald Pendry, Richard C. Tymick, and Eva Baird as its witnesses and offered Petitioner's Exhibits No. 1-6, 1/ inclusive, each of which was received into evidence. Respondent Evers called James Bradfield as his witness and testified in his own behalf. Evers offered Respondent's Exhibits No. 1-10, 1/ inclusive, each of which was received. At the outset, the Board dropped Count IV and moved to amend its complaint by adding an allegation that Evers' alleged misconduct was of such a nature that had the Board been aware of it at the time Evers applied for his real estate salesman's license the application would have been denied. The proposed amendment fell within the scope of the complaint, and the motion was granted. Evers also renewed his previous motion to quash the amended complaint on the ground that he was not a licensed real estate salesman at the time of the alleged misconduct; the motion was denied. At close of hearing, the parties requested the opportunity to submit memoranda of law by July 23, 1980, which request was granted. The parties further agreed that the thirty-day time period for filing the recommended order in this case would begin on July 23, 1980. Based upon the evidence submitted at hearing, the following facts are determined:
The Issue The issue in this case is whether Respondents negotiated the sale of real property and collected a commission on said sale without the requisite real estate license issued by the State of Florida.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty of prosecuting Administrative Complaints filed against real estate practitioners pursuant to the laws of the State of Florida. Respondent Rene Larralde, Jr., is a citizen of the State of Florida. At no time relevant to this proceeding did Larralde hold a Florida-issued license as a real estate sales associate or real estate broker. Respondent Maxous, Inc., is a Florida for-profit corporation formed on August 10, 2004. Larralde is president and registered agent of Maxous. Respondent Glinda G. Hatfield has held licenses as a Florida real estate broker and a Florida real estate associate. As of the date of the incident relevant to this proceeding, Hatfield's real estate broker's license was in an inactive status. Hatfield had failed to meet one of the continuing education requirements for renewal of her license that year. She was not aware of that fact until notification by the state relevant to the issues in this proceeding. Upon receiving notice, Hatfield took the necessary measures to have her license re-instated to active status. Hatfield assisted Larralde in forming Maxous. It was Hatfield's responsibility, as the licensed real estate broker in the new entity, to make sure Maxous was duly registered with the state as a real estate broker. Hatfield went to the Melbourne Association of Realtors to register the business once it had been incorporated. Hatfield did not understand that the business also had to be registered through the Florida Real Estate Commission in Tallahassee. Not being aware of that requirement, Hatfield never registered Maxous with the state. Rather, she paid the fees associated with registration of the company with the local real estate association and made the erroneous presumption that the company could then operate as a licensed real estate broker in the state. On or about February 27, 2008, certain parties entered into a Contract for Sale and Purchase (the "Contract") of property located at 1033 June Drive, Melbourne, Florida (the "Property"). Maxous was designated as the listing broker in the Contract. On April 21, 2008, the sale of the Property closed, as evidenced by a HUD Settlement Statement. The Settlement Statement indicates a real estate commission in the amount of $5,964.18 for the sale. The Settlement Statement indicates $2,982.09 (one half of the commission) is to be paid to Maxous and the other half of the commission to be paid to Exit One Realty. Exit One Realty was the listing agent for the Property, but had not been made aware of the impending sale. As the sole listing agent, Exit One Realty would normally expect to receive the entire broker's commission at the time of closing. However, Exit One Realty was not even aware of the sale of the Property until it received its commission. It appears that Maxous, through the person of Larralde, held itself out as the listing broker and assumed ownership of the commission on the sale of the Property. Larralde did, however, designate Exit One Realty as another broker in the sale who was entitled to half of the commission. At the time of the transaction involving the Property, Maxous was not registered with the State of Florida as a real estate broker. Larralde was not licensed as a real estate sales associate. In order to consummate this sale (and others like it), Larralde had established Maxous. It was apparently Larralde's intent, although he did not appear at the final hearing, to use Hatfield's status as a licensed broker to legitimize Maxous' status as a brokerage firm. Hatfield was amenable to that arrangement. Hatfield was designated as the vice-president of Maxous when the company was formed. As previously noted, Hatfield went to the Melbourne Association of Realtors for the purpose of registering Maxous as a brokerage entity. Hatfield paid the necessary fees to the association for the registration of Maxous with the local real estate association, and, upon inquiry from that office, felt that she had done everything necessary to allow Maxous to operate as a broker. Thus, at the time of the aforementioned transaction, Maxous was not a legitimate broker in the State of Florida. Hatfield assumed she was the registered broker for Maxous; assumed Maxous was duly registered with the state; and assumed that her broker's license was current. In matter of fact, none of those assumptions proved true. Clearly Hatfield did not attempt to circumvent or avoid the requirements for real estate brokers. Rather, she was mistaken about what had to be done regarding registration with the Florida Real Estate Commission. She did not know that her license had been deemed inactive for failure to complete a continuing education class. Neither Larralde, nor anyone else testified at final hearing as to what their knowledge was concerning these matters. It cannot be determined whether Larralde knew Maxous was not a registered brokerage firm and that the transaction relating to the Property was improper. However, Larralde did share the commission with Exit One Realty. It is clear from Hatfield's testimony at final hearing that she did not intend to defraud anyone or to do anything illegal or improper. However, her actions were improper nonetheless. It is not clear from the testimony whether Hatfield received any of the commission provided to Larralde. However, to her credit, Hatfield, upon learning of the violations set forth above, unilaterally ceased doing business as a real estate agent or broker. She acknowledged her mistake and took immediate action to make sure she would not make any further mistakes.
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: (1) imposing a fine in the amount of $5,000 against Respondent, Rene Larralde; (2) imposing a fine of $5,000 against Respondent, Maxous, Inc; (3) imposing a fine of $250 against Respondent, Glinda G. Hatfield; (4) requiring Hatfield to pay the costs of the investigation in this matter; and (5) suspending Hatfield's real estate license for a period of one year. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 November, 2009. COPIES FURNISHED: Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-Suite 801 North Orlando, Florida 32801 Joseph G. Colombo, Esquire 2351 West Eau Gallie Boulevard, Suite 1 Melbourne, Florida 32935
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint, and that his real estate salesman license be REVOKED. DONE and ORDERED this 27th 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 27th day of January, 1986. COPIES FURNISHED: Susan J. Hartmann, Esquire P. O. Box 1900 Orlando, Florida 32802 Mr. Dennis R. Bell FCI, ECU-2 P. O. Box 2000 Lexington, Kentucky 40511 Salvatore Carpino, Esquire 130 N. Monroe St. Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson St. Orlando, Florida 32801
The Issue The issue for consideration is whether Darrell J. Leamy is entitled to licensure in the State of Florida as a real estate salesman.
Findings Of Fact Darrell Leamy was previously licensed in Florida as a real estate salesman and broker. He was also licensed in the State of Wisconsin. On May 22, 1980, in a Department of Professional Regulation Administrative Complaint, Mr. Leamy was charged with four counts of various violations of Chapter 475 F.S. Mr. Leamy requested a hearing but did not appear at the hearing. On July 8, 1981, Hearing Officer William Thomas recommended revocation of Leamy's real estate license. (DOAH Case #80-1776). The Board of Real Estate adopted that recommendation in a Final Order filed on September 9, 1981. The order was not appealed. On February 24, 1983, the State of Wisconsin, Department of Regulation and Licensing revoked Leamy's Wisconsin real estate license after his ex-wife informed the agency that his Florida license was revoked. Darrell Leamy's account of the incidents leading to the 1981 revocation includes the admission of several material elements of the administrative complaint. He and his wife made an offer and purchased a house that, at the same time, he had shown in his professional capacity to prospective buyers. He presented an offer on behalf of those prospective buyers, while revealing to them only that other persons were very interested in the property "and that they should make their best offer". Later, with respect to that same transaction, he received a check in the approximate amount of $1,500.00, representing a share of the sales commission and payable to his broker-employer, United Farm Agency. His wife deposited the check in the couple's personal bank account. Although he found out about his wife's deposit within a day, he did nothing to correct the error. Mr. Leamy contends that the circumstances surrounding the incidents should exonerate him, that he did give the prospective buyers a fair opportunity to make a higher offer. Further, his wife (now his ex-wife) was jealous of his employer's daughter, who was making romantic overtures at the office, so she didn't want him to go back to that office to take the check. His failure to attend the prior administrative hearing was due to dire predictions of the outcome by his lawyer, the death of one of his witnesses, and the discovery that another witness had a drinking problem and could not remember him. Mr. Leamy's case for licensure concentrated on the peculiar circumstances of the prior charges and his assertion that those complaints were the only ones he experienced in his active real estate practice in Florida and Wisconsin.
Recommendation Based on the foregoing, it is, RECOMMENDED: That a final order be entered denying Petitioner's application for licensure as a real estate salesperson. DONE and RECOMMENDED this 17th day of June, 1987 in Tallahassee, Florida. MARY CLARK 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 17th day of June, 1987. COPIES FURNISHED: Darrell J. Leamy 834 Okaloosa Street Orlando, Florida 32822 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212, 400 West Robinson Street Orlando, Florida 32801
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter in detail, unlawfully withdrew and transferred monies from an escrow account and is therefore guilty of fraud, dishonest dealing by trick, scheme or device, or breach of trust and conversion within the purview of Subsection 475.25(1)(b), Florida Statutes (1979) At the final hearing, Petitioner called Donald Lloyd, Respondent, Donald Reda and Kenneth Viviano as its witnesses. Petitioner offered Exhibits 1 through 7 which were received into evidence. Respondent called no witnesses and offered Respondent's Exhibits 1 through 4 which were received into evidenced.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda and the entire record complied herein, I hereby make the following relevant findings of fact. By its administrative complaint filed herein on July 29, 1981, Petitioner seeks to take disciplinary action against the Respondent as licensee and against his license as a real estate salesman. During times material herein, Respondent was a licensed real estate salesman and has been issued license No. 0188032. During times material herein, Century 21, Lloyds of Lauderdale, Inc., was a Florida licensed real estate corporate broker with its offices located at 3300 NE 33rd Street, Fort Lauderdale, Florida corporate entity was licensed under that name on October 12, 1979. The predecessor entity was known as Lloyds' of Lauderdale, Inc., and had its escrow account at Gulfstream Bank H.A., formerly known as Gulfstream American Bank and Trust Company H.A., formerly known as American National Bank and Trust Company of Fort Lauderdale, which account number was 005-1-00160-3. Upon obtaining the change of name, i.e. Century 21, Lloyds of Lauderdale, Inc., the successor entity maintained the same escrow account number at the same bank and continued using the checks on that account bearing its former name, Lloyds of Lauderdale, Inc. During times material herein, Respondent was a salesman associated with Century 21 and was an authorized signatory on the above-referred escrow account. Respondent was also a stockholder, officer and director of Century 21, Lloyds of Lauderdale, Inc. Respondent was also the owner of an unrelated business known as Brewer's Care Center, which in turn operated a motel located in Georgia. During times material, Respondent owned a one-third (1/3) interest in Century 21, Lloyds of Lauderdale, Inc. On February 3, 1981, Respondent issued a check, No. 79-228, drawn on the Century 21, Lloyds of Lauderdale, Inc., escrow account, payable to Brewer's Care Center in the amount of $11,903.12. Approximately fifteen days later, on February 18, 1981, Respondent issued another check, No. 79-223, drawn on the above-referenced escrow account payable to Brewer's Care Center in the amount of $2,500. On March 3, 1981 Respondent verbally authorized the Gulfstream Bank to withdraw $399.66 from the referenced escrow account to pay interest on loan No. 59-004-00-058-3866-4. Also, on March 18, 1981 Respondent verbally authorized the withdrawal of $799.32 to be applied against the same loan. Neither of the above-referenced checks or verbal loan authorizations were, in any wise, connected with any real estate transactions from which monies were held in escrow by the Respondent. The verbal withdrawals and checks, either authorized or drawn by the Respondent, reduced the escrow account by a sum of approximately $15,602.10 and depleted the account to such an extent that Century 21, Lloyds of Lauderdale, Inc. was unable to meet demands for the return of the escrow funds held in trust (See Petitioner's Composite Exhibit No. 1). Respondent took the position that the monies represented by the payments of the two checks made payable to Brewer's Care Center were repayments of loans and that he was unaware that the accounts which the checks were drawn against were, in fact, escrow accounts. In this regard, evidence reveals that the Respondent suffered a heart attack during November of 1980 and his health regressed to the degree that he was placed in the intensive care unit at a hospital in Cleveland, Ohio for an extended period of time. At the conclusion of the Petitioner's case in chief, Respondent's counsel filed an ore tenus motion to continue the subject hearing until the following day. The undersigned afforded Respondent's counsel an opportunity to submit, for the record, his basis for the continuance. However, that motion was denied based on the numerous continuances which had been previously granted by the undersigned to Respondent's counsel (See Order dated November 16, 1982 - Copy attached).
Findings Of Fact Respondent Cherylyn Stoppler, at all times pertinent hereto, was licensed as a real estate saleswoman in the State Of Florida, holding license No. 0467803. Her last and current license was issued authorizing practice at Escambia Realty, Inc., 310 South Pace Boulevard, Pensacola, Florida 32501. Respondent Dorothy Diane Owens, at all times pertinent hereto, was a licensed real estate broker in the State of Florida, holding license No. 0380831. Respondent Escambia Realty, Inc., at all times pertinent hereto, was a licensed corporate real estate brokerage holding license No. 0232503. Its address is 310 South Pace Boulevard, Pensacola, Florida 32501. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure of real estate brokers and salesmen, the real estate professional practice standards embodied in that chapter and with prosecuting alleged violators of those standards. On April 13, 1986, Kenneth and Linda Williams, also known as Linda Brewer, requested that Cherylyn Stoppler show them rental property consisting of a single family residence located at 6853 Lake Charlene Drive in Pensacola. They had observed the Respondent corporate broker's sign on the front of that premises, advertising it for rental. Respondent Stoppler, Respondent Owens and the Escambia Realty, Inc. represented the owners of the property. Kenneth and Linda Williams examined the property and decided that they wanted to rent it. In their discussion with Cherylyn Stoppler concerning the terms of the rental arrangement, they requested that they be allowed to paint the premises and that the garage door be repaired. Respondent Stoppler agreed to this and indicated the owners would supply two gallons of paint and the prospective tenants, the Williamses, could do the painting with the owners ensuring repair of the garage door. Respondent Stoppler and the Williamses agreed to those terms and to the rental amount of $625 per month. They also agreed to pay Respondent Stoppler a $400 deposit, on behalf of the owners. Ms. Stoppler informed the Williamses that if they did not consummate the lease arrangement, upon which they had verbally agreed, the $400 would be retained and remitted over to the owners of the property. The Williamses agreed to this arrangement. The Williamses and Ms. Stoppler returned to Ms. Stoppler's office and she noted these terms on a lease agreement form with the additional term that the owner would steam clean the carpet in the house. The lease terms also provided that the premises would be used by no more than two adults and "zero" children, but the lease agreement has the "zero" stricken through indicating that that term was to be deleted. The striking of the zero on the term concerning the number of children to occupy the premises appears to have been executed with the same pen, inasmuch as the ink is the same color as the rest of Mrs. Stoppler's handwritten terms on the lease form. In any event, the Williamses were anxious to return to their home in Louisiana directly from the Respondent's office that same afternoon and to accommodate them Ms. Stoppler agreed to mail the lease form to them to be executed, urging them to send it back immediately. When they left the premises that day, Respondent Stoppler removed her firm's sign from the front of the premises and also told the Williamses that the property would be off the market as of that day, hence her admonishment to them to waste no time in returning the executed lease since the property would be off the market during the interim on the strength of the verbal agreement. The Williamses did not inform Ms. Stoppler that Mr. Williams had two children who might visit them from time to time or live with them at the premises. The Williamses returned to Louisiana and the lease was mailed to them by Ms. Stoppler. The Williamses decided not to execute the lease and to not consummate the rental arrangement. They informed Ms. Stoppler of this by phone on April 24, 1986, as well as communicating on that day with Respondent Owens. They indicated they did not desire to rent the premises and one reason given was that they felt that the two children were precluded by the lease terms from living on the premises for any period of time with them. In fact, the Williamses had never mentioned that they had any children and had sought to negotiate a reduction in the rent when they originally discussed the matter with Ms. Stoppler on the basis that only the two of them would live in the premises. The terms and conditions of the rental arrangement were those given to Ms. Stoppler by the Williamses themselves. When they conferred with Ms. Owens and Ms. Stoppler, they were again informed that the $400 would be retained and transmitted to the owners, to which they did not then object. In fact, they never did make any demand upon the Respondents for return of the $400 which was actually communicated to the Respondents. There is a letter in evidence (Petitioner's Exhibit 6) which the Respondents never received, as is shown by the certified mail receipt card and by Respondents' and Ms. Celano's testimony. The Williamses objected to consummating the lease because they contended that Ms. Stoppler had assured them that they could 1ive in the premises rent- free from the beginning of the lease, April 26, until May 1, during the time in which they would be painting the house and instead they were being charged $84 for those days. Mrs. Williams' testimony is somewhat equivocal in this regard in that she exhibited an incomplete memory regarding certain critical dates in the transaction, for example, the date she allegedly called Mrs. Stoppler to inform her of their refusal of the rental and the date she believed the lease was to commence. Mrs. Stoppler's testimony was corroborated by that of Ms. Owens, and was not refuted by the Williamses. It is accepted over that of Mrs. Williams in establishing that indeed the lease period and the rental there for was to commence on April 26. The Respondents' testimony shows that the house was off the rental market from April 13, when the verbal agreement with Ms. Williams was entered into and the sign was removed from the property and that both Respondents informed Mrs. Williams on two occasions that the $400 was not refundable but would be remitted to the owners of the property. The Respondents also established that Escambia Realty, Inc. followed a consistent policy of retaining deposit monies and remitting them to the owners without refund to prospective tenants when the tenants agreed to lease the premises after being informed that the deposit would be retained and the property taken off the market, when such tenants elect of their own volition to negate a lease or rental agreement. The Williamses additionally maintained that they did not want to consummate the lease arrangement because, in their view, the Respondents and the owners would not permit any children unrestrictedly visit or to live on the premises. That was established not to be the case. They also objected because they would not be allowed to live in the premises rent-free for several days during the time in which they were painting the premises. Additional objections involved various inconsequential technical deficiencies, such as misspellings, in the content of the lease. The employment position Mr. Williams was to have taken in the Pensacola area, and which was in large measure their reason for moving to Pensacola and renting the subject premises, failed to materialize. Ultimately, however, the Williamses moved to Pensacola and rented a different house at the lower rate of $600 per month. In short, the complaining witnesses contend that they did not want to execute the lease because of the problem of the $84 prorated rent required of them by the Respondents and the owners for the days when they thought they would live rent-free while painting the premises, because they felt that Mr. Williams' children by a previous marriage were precluded from unrestricted visits at the rental premises and because they felt that the proffered lease did not contain the proper initial date of tenancy. Thus, the Williamses breached the agreement because the Respondents refused to "correct" the lease according to the Williamses' desires. Those desires were not communicated to the Respondents until, at the very earliest, the phone conversations of April 24, 1986, some twelve days after the verbal agreement to rent the premises to the Williamses had been entered into and the $400 deposited with the Respondents on behalf of the owners. During that time, and longer, the property was taken off the rental market and the Respondents and the owners forbore the opportunity to secure other tenants. The Williamses themselves acknowledged that the letter by which they sought return of the $400 deposit was never actually received by the Respondents. Further, Ms. Williams in the telephone conversation on April 24, 1986, acknowledged that the owners were entitled to the $400 deposit. Even so, Ms. Owens waited approximately 25 days before remitting the funds over to the owners. Thus, no dispute as to the deposit was ever communicated to the Respondents, and the Respondents never misrepresented to either Mr. or Mrs. Williams the manner of disbursement of the deposit funds. It is noteworthy that Mrs. Williams is a licensed realtor herself and had some experience in similar real estate transactions. The Respondents carried out their portion of the bargain. Finally, it has been demonstrated that Respondent Owens is a well- respected real estate practitioner in the Pensacola area, having served as an officer and director of her local board of realtors and having been accorded a number of honors and certifications in connection with her professional performance as a realtor and her securing of advanced training in the field of real estate brokerage. Ms. Stoppler is relatively new to the profession, but neither she nor Ms. Owens have been shown to have ever engaged in any questionable practice or conduct in the course of their practice and neither have been shown to have been the subject of any other complaint of any nature resulting from a real estate transaction.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Respondents Cherylyn Stoppler, Dorothy Diane Owens and Escambia Realty, Inc. be dismissed in its entirety. DONE and ORDERED this 28th day of 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3982 Petitioner's Proposed Findings of Fact: 1-4. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Rejected as to its material import. 7-9. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 10-11. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Accepted. Rejected as to its material import. 17-18. Accepted. 19. Rejected as to its material import. 20-21. Accepted. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Rejected as a recitation of testimony and not a Finding of Fact. Also rejected as to its material import. Accepted, but rejected as to its material import. Accepted. Rejected as to its material import. 29-30. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 31. Accepted, but not as to its material import. 32-35. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. Rejected as to its material import. Accepted, but not to the effect that a demand for refund was made. Rejected as to its material import and as not in accord with the credible testimony and evidence adduced. 39-41. Rejected. Respondents' Proposed Findings of Fact: Specific rulings are not separately made here because Respondents' Proposed Findings of Fact are inseparably entwined with legal argument and recitations of, and arguments concerning, the weight and credibility of testimony and evidence. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Cherylyn Stoppler Dorothy Diane Owens Escambia Realty, Inc. 310 South Pace Boulevard Pensacola, Florida 32501 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
