Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, the following relevant facts are found. On approximately April 1, 1981, Petitioner, Dana Wilson, filed an application for licensure as a real estate salesman with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated July 23, 1981, the Board of Real Estate, through its counsel, advised Petitioner that at its duly noticed meeting of July 21, 1981, the Board of Real Estate Denied his application for licensure based on the answer to question No. 6 of the licensing application submitted by Petitioner which reflects that he has been convicted of a crime involving honesty. Petitioner was advised that, pursuant to Section 475.17(1), Florida Statutes, an application for licensure as a salesman must be "honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing " Accordingly, the Board of Real Estate, after a review of Petitioner's application considered that he did not have the necessary qualification for licensure pursuant to the above-cited statute. As noted, herein, Petitioner did not appear at the subject hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions Law, it is hereby, RECOMMENDED: That the Respondent, Department of Professional Regulation, Board of Real Estate, deny Petitioner's (Dana Wilson) application for licensure as a real estate salesman. RECOMMENDED this 9th day of April, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1982.
The Issue Whether the application of the Respondent, Robert A. Whittemore, III, for registration should have been denied.
Findings Of Fact The Respondent, Robert A. Whittemore, III, filed an application for registration as a real estate salesman with the Petitioner Commission on April 18, 1978. The application was denied, and Respondent by letter requested an administrative hearing to "prove that I do meet with the qualifications" for licensure. Respondent was sent notice of hearing on two (2) occasions by mail, and the notices were not returned. He did not appear to testify and sent no representative to testify in his behalf. Respondent had been licensed as a real estate broker in New York, New York, which license expired on October 31, 1973. The application submitted by Repondent showed that he was convicted of conspiracy in the third degree by the Supreme Court in the State of New York on August 19, 1976, and of falsely reporting an incident in the third degree on December 5, 1976, and sentenced on June 16, 1976. Thereafter a certificate of relief from disabilities on his real estate license was issued by a justice of the Supreme Court, State of New York, on October 20, 1977. Said certificate was submitted by Respondent at the time of his application for registration. No memorandum of law was submitted by either party involved in this administrative hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Respondent's application for registration be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1979. COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Robert A. Whittemore, III 5501 North Ocean Boulevard Ocean Ridge Palm Beach, Florida 33435
Findings Of Fact Carl D. Hill, Petitioner, applied for licensure to the Florida Real Estate Commission, Respondent, on or about October 19, 1983, and subsequently received a letter of denial dated December 6, 1983. The denial was based upon Sections 475.17(1) and 475.25, F.S., and specifically cited Petitioner's prior arrest in 1980 and criminal record. By Order of the Circuit Court dated June 12, 1984, the record of Petitioner's prior arrest and plea of guilty was expunged and sealed. Petitioner had originally been placed on probation for five years, but that probation was terminated early for good behavior after three years, on or about April 16, 1984. Petitioner has not been arrested for any offense since 1980, and has at all times been employed. His reputation in the community is very good. Petitioner is currently co-owner of Interstate Mobile Homes and handles sales, service and set-up of mobile homes. His partner is a licensed real estate broker who also operates Sun American Realty in the same building. There is no evidence in the record which would indicate that Petitioner has at any time engaged in activities which would require a real estate salesman's license. All such activities are handled by his partner and co-owner who is licensed as a real estate broker. Petitioner held a real estate salesman's license from November 1981 until January 18, 1983. Petitioner's previous license was revoked pursuant to Section 475.25(1)(m), F.S., but he was not precluded from reapplying for reinstatement.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's application for licensure as a real estate salesperson be APPROVED. DONE and ORDERED this 26th day of February, 1985, at Tallahassee, Florida. DONALD D. CONN 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 26th day of February, 1985. COPIES FURNISHED: Jack W. Crooks, Esquire Crooks, Vetter, Cuellar and Blau, P.A. 4202 West Waters Avenue Tampa, Florida 33614 Ralph Armstead, Esquire Assistant Attorney General Suite 212 400 West Robinson Street Orlando, Florida 32801 Harold R. Huff, Director Dept. of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Kenneth M. Olson, Jr., is guilty of the allegations alleged in the Administrative Complaint?
Findings Of Fact Kenneth M. Olson, Jr., is a registered real estate broker holding Certificate No. 0065634 issued by the Florida Real Estate Commission. Gary Ater, Pasquale DeLucia, John Ricker, Helen Pendleton, and Fred Snook were all real estate salesmen employed in the Fourth Street Office of Olson & Associates. On or about March 31, 1975, the aforesaid salesmen, to include the office manager, Fred Snook, left the employment of Kenneth M. Olson, Jr., without notice and became salesmen for Citrus Realty. Upon their leaving, only one full time real estate salesman was left in the Fourth Street Office. Kenneth M. Olson learned that the aforesaid real estate salesmen had left his employ when members of the public and other real estate salesmen and brokers called his other office advising that the phones at the Fourth Street Office were not being answered. Blodwen Clayton, a registered real estate salesman with Olson and who as a secretary-receptionist had organized the records and supplies for the Fourth Street Office, was sent to said office to determine what problems existed there. She determined that the aforementioned sales people were gone and the office closed and locked. Also office records, supplies, a cross listing directory which had just been purchased, and an electric typewriter were missing. Subsequent audit of the account of the Fourth Street Office indicated that certain payments had been made to Fred Snook which were inappropriate to include reimbursement for flowers sent clients and a party held in the month of February. A telephone bill for that office indicating a call from Havana, Cuba, had been billed to the telephone of the Fourth Street Office at a time when Fred Snook was manager and responsible for the office. As a result of the personnel loss, Olson chose to close the Fourth Street Office and dispose of the property. The events alleged in Counts 2 through 9 discussed in paragraphs 4 through 11, following, relate to events which occurred between Olson and the aforesaid sales personnel after they left Olson's employ. No evidence was presented by the Florida Real Estate Commission to substantiate its allegations contained in Count 1. The Petitioner argued that the admission by the Respondent in his Answer that the Commission paid to Joseph Boiros was paid by a check drawn on the Olson & Associates Real Estate operating account is sufficient to sustain the alleged violation that Olson did not hold Boiros' commission in a trust account and promptly account and pay the commission to Boiros. Gary Ater was a registered salesman employed by Olson who by virtue of negotiating and obtaining a contract for the sale of property between William and Eleanor Zeisler and Arthur and Simone Clinton earned a commission when this sale closed on or about April 10, 1975. Pursuant to the employment contract between Ater and Olson, the commission was due and payable twenty-four hours after closing period. On May 1, 1975, Gary Ater demanded payment by registered mail from Kenneth M. Olson, Jr. Ater received payment of the commission in December, 1975, after having obtained a judgment in Small Claims Court which was satisfied by Olson prior to being recorded. Pasquale DeLucia, a registered salesman employed by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Sherwood and Annie Clrk and Wayne and Theresa Costin on or about February 7, 1975. Upon the closing of said sale on or about March 31, 1975, DeLucia earned a commission due and payable within twenty-four hours under the employment contract between DeLucia and Olson. On or about May 1, 1975, DeLucia demanded payment from Olson by registered mail of said commission. DeLucia subsequently sued Olson in Small Claims Court and obtained a judgment which was satisfied by Olson prior to the judgment being recorded. On or about March 11, 1975, DeLucia negotiated and obtained a deposit receipt contract for the sale of property between Norman and Sally Hassan and Elsworth and Dora Crispin. Said transaction closed on or about June 30, 1975, whereupon DeLucia earned a commission. On or about June 23, 1975, DeLucia demanded payment of the commission. DeLucia subsequently sued Olson for the amount of commission due and received judgment in Small Claims Court which Olson paid prior to the recording of the judgment. Fred Snook was a registered real estate salesman and manager of Olson's office referred to as the "Fourth Street Office." In his capacity as a salesman, Snook obtained a listing for the sale of real property upon which David H. Gibson, a registered real estate salesman employed by Olson, negotiated a contract for sale and purchase between Hinsdale W. Woman's Clinic Profit Sharing Fund and Norman and Celia Savoy on or about July 16, 1973. This transaction closed on or about August 31, 1973, whereupon a real estate commission in the amount of $6,000.00 was paid at closing with an additional $12,000.00 in real estate commission being paid in monthly installments to Olson. From the $12,000.00, Snook was to be paid $45.00 per month until his commission was paid in full. Said payments were made until March, 1975, at which time Snook received no further payments. John J. Ricker, employed by Olson as a registered real estate salesman, obtained a listing on real property owned by Arthur and Simone Clinton. This property was subsequently sold by Gary A. Ater, who is also employed by Olson as a registered real estate salesman. By virtue of having obtained a listing, John J. Ricker was entitled to a commission upon closing of the transaction, which occurred on or about April 10, 1975. Said commission was not paid Ricker until September, 1975, when the amount of the commission was paid as settlement of of an action pending between Ricker and Olson. Helen D. Pendleton, who is employed as a registered real estate salesman by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Byron Salvin and John and Iva Blake. Said transaction closed on or about May 20, 1975, whereupon Pendleton earned a commission under her employment contract with Olson. Pendleton subsequently requested payment from Olson but was not paid. She thereafter instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not been satisfied. Helen Pendleton also negotiated a real estate purchase agreement between Albert and Bonnie Older and Otto and Eleanor Rodeck. Said transaction closed on or about May 12, 1975, at which time the commission was earned by Pendleton pursuant to her employment agreement with Olson. Pendleton subsequently made demand for said commission. When she did not receive her commission, she instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not bee satisfied. Further, Pendleton negotiated a deposit receipt contract for the purchase and sale of real property between Diane Hammond and Marjorie McCauly on or about March 8, 1975. This transaction closed on or about May 23, 1975, whereupon Pendleton earned a commission, which she did not receive after having made demand for payment on Olson. She sued and obtained judgment for this commission, said judgment not yet having been satisfied as of the date of hearing. On or about February 25, 1975, Helen D. Pendleton entered into an apprenticeship with Kenneth M. Olson, Jr. As a condition precedent to undertaking to be Pendleton's apprenticing broker, Olson required that Pendleton and he execute a noncompetition agreement. The Florida Real Estate Commission presented no evidence with regard to the allegations of Count 11. The Petitioner argued that the Respondent, Olson, had admitted the allegations contained in paragraphs 1, 2, 3, and 4 of Count 11 in his Answer, and that based upon those admissions Olson had violated the provisions of Rule 21V-14.06, Florida Administrative Code, and therefore was in violation of Section 475.25(1)(d), F.S. Donald A. Ehmig was employed as a registered real estate salesman by Olson. In that capacity Ehmig negotiated real estate transactions between Flannagan and Myers, Mendenhall Tsolaks and Caraway and Dickmen. These transactions were closed on January 22, January 15, and April 1, 1975, whereupon Ehmig earned a commission on each transaction pursuant to his employment agreement with Olson. Evidence was received that indicates that Olson, as co- signer of a note with Ehmig, had paid $1,172.36 of a deficiency judgment on December 5, 1974. See Exhibit 29, check to St. Pete Sports Car Center in the amount of $1,172.36 on the account of Olson & Associates. Ehmig candidly admitted that it was his intent that Olson, as co-signer, incur the financial loss upon his (Ehmig's) default of the note. The amount of monies owed Ehmig by Olson and the amount of monies owed Olson by Ehmig were approximately the same. No evidence was presented that Kenneth M. Olson, Jr., knew or had any reason to know that Allain Rimar had tendered an earnest money deposit in the amount of $500.00 on the purchase of certain real property negotiated through his saleswoman, Susan Lee Stuart. Stuart's testimony was that Jack Fulmer was the broker involved in the transaction and that to her knowledge, Olson had no knowledge of the earnest money deposit. Fulmer, who was originally charged in the Complaint, has died since issuance of the Complaint, and the charges against Fulmer and Susan Lee Stuart were dropped by the Florida Real Estate Commission.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer would recommend that the Florida Real Estate Commission order Kenneth M. Olson, Jr., be directed to pay the judgment(s) obtained by Helen Pendleton, or face suspension for 30 days, and further that Olson receive a letter of official reprimand. DONE AND ORDERED this 16th day of March, 1977, in Tallahassee, Florida. Stephen F. Dean Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Seymour A. Gordon, Esquire 153 Central Avenue Post Office Box 265 St. Petersburg, Florida 33731 =================================================================
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
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record contained herein, I make the following findings of fact. The Department is the agency responsible for licensing, regulating, and disciplining real estate broker-salespersons in the State of Florida. Respondent's Florida real estate broker-salesperson license number 0389600 was originally issued on December 19, 1983. His real estate license was active in Florida between June 1, 1992 and July 1, 1993. During this period, Respondent was registered as a broker-salesman for Klein and Heuchan, Inc., located in Clearwater, Florida. Respondent's real estate license expired on or about July 1, 1993, and was activated on March 14, 1995. Between March 14, 1995 and July 31, 1995, Respondent was a broker-salesperson with Viewpoint Realty in Belleair Bluffs, Florida. During the dates at issue in this proceeding, Respondent's real estate license was invalid. In the summer of 1993, Respondent was employed as a mortgage loan consultant by Savings of America, St. Petersburg, Florida. In this position, Respondent worked directly with real estate brokers to provide financing for the sale of real estate transactions in the Tampa Bay area. On or about July 1, 1993, Respondent took steps to place his broker-salesperson license with Ahmanson Investments, the real estate division of Savings of America. On June 29, 1993, Respondent completed a Department form entitled "Request for License or Change of Status" (Request). The Request indicated that the broker employer for whom Respondent would be employed was Ahmanson Investments. After completing the "Applicant Section" of the form, Respondent submitted the Request to his supervisor, who then forwarded it to Mary Adair, the broker of record for Ahmanson Investments. The "Broker/Employer Section" of the request was completed and executed by Mary Adair. The completed Request was forwarded to the Regional Office of Savings of America to be distributed to the proper authorities. Respondent was told by Savings of American/Ahmanson Investments that the Department had been notified that Respondent's broker-salesperson license had been transferred to Ahmanson Investments. Based on representations of his employer, Savings of America, Respondent believed that the Request had been properly filed with the Department and that his real estate license was in effect. Respondent learned after August 1994, that the Request was never sent to the Department by Savings of America. As a result of Respondent's improper reliance on Savings of America to file the Request, Respondent did not file the Request with the Department. By statute, Respondent was required to notify the Department within ten (10) days of any address change or change in employer. By failing to properly notify the Department, Respondent's license ceased to be in effect when he placed it with and was employed by Ahmanson Investments in July 1993. Respondent operated as a real-estate broker-salesperson while employed with Ahmanson Investments although his Florida real estate license ceased to be in effect during the time he was so employed. In August 1994, Respondent contacted Juanel Topper of Topper Realty, Inc., about purchasing a house that was listed by Topper Realty, Inc. Respondent indicated to Ms. Topper that he was interested in purchasing the house as a personal residence for himself and his wife. On or about August 14, 1994, Ms. Topper showed the property to Respondent and his wife. Respondent visited the property three or four times after his initial contact with Ms. Topper and asked Ms. Topper several questions regarding the property. During one of his discussions with Ms. Topper concerning the property, Respondent gave Ms. Topper a business card bearing the name "Stewart S. Angel Realty, Realty CRS CRB-Developer". The card listed a toll free telephone number, a Florida telephone number, and a St. Petersburg, Florida address. Printed on the top left hand corner of the card was "Michigan- Florida". The business card given to Ms. Topper had a line drawn through the word "Florida" that was printed in the top left corner. The Respondent is a licensed real estate broker in Michigan and testified that Stewart A. Angel Realty is a Michigan company. However, the Stewart A. Angel Realty card lists only a Florida address. Although there is a toll free telephone number printed on the card, the only other telephone number on the card is a Florida number. The information on the card makes it appear that Stewart A. Angel Realty is a Florida business. In August 1994, Ms. Topper telephoned Respondent to answer several questions he had concerning the property. Ms. Topper called one of the telephone numbers shown on the "Stewart S. Angel Realty" business card that Respondent had given to her. The answering machine for that number stated that the name of the business called was "Angel Realty". Ms. Topper confirmed with the Department that Angel Realty was not registered in Florida. When Respondent initially inquired about the property, he did not reveal to Ms. Topper that he was an agent. However, on a previous occasion, Respondent had given Ms. Topper a business card which indicated that he was a conventional loan consultant for Savings of America. The business card had the following designations listed immediately after Respondent's name: "GRI, CRS, and CRB". On or about August 24, 1994, Respondent advised Ms. Topper that as an active real estate broker, he wanted to participate in the commission paid if in fact he purchased the property. Ms. Topper confronted Respondent about not revealing to her initially that he was a broker and would want to share in any commission earned as a result of the sale of the property. Respondent believed that Ms. Topper was aware that he considered himself to be a licensed real estate broker-salesperson. Respondent's belief was based on previous business dealings between himself and Ms. Topper as well as the fact that she had received Respondent's Savings of America business card. Respondent did not purchase the property which was the subject of discussions between Respondent and Ms. Topper. No agreement was ever executed by the Respondent and Ms. Topper regarding the sale/purchase of the property. Neither was any money ever exchanged between the parties regarding the sale or purchase of the property. Respondent has been a licensed real estate broker-salesperson for almost twelve years and has not had any other complaints filed against him prior to the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Respondent has violated Sections 475.42(1)(a), 475.23, and 475.25 (1)(c) and (e), Florida Statutes; issuing a written reprimand; and imposing a $1,000.00 to be paid in accordance with this Recommended Order. RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 2nd day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3608 To comply with the requirements of Section 120.59 (2), Florida Statutes. The following rulings are made on the Petitioner's proposed findings of fact: Paragraph 1. Accepted and incorporated. Paragraph 2. First sentence rejected as not supported by competent and substantial evidence. Second sentence accepted. Paragraphs 3-9. Accepted and incorporated. Paragraph 10. First sentence rejected as not supported by competent and substantial evidence. The evidence showed that in initial discussion with Ms. Topper, Respondent did not reveal that he was agent. Second sentence accepted. Paragraph 11. Accepted. COPIES FURNISHED: Daniel Villazon, Esquire Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street #N-308 Post Office Box 1900 Orlando, Florida 32802-2465 Stewart S. Angel, Jr. Post Office Box 41465 St. Petersburg, Florida 33743-2465 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether the Respondent is guilty of the violations alleged in the Administrative Complaint filed by the Petitioner and, if so, whether Respondent's real estate license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is a state government licensing and regulatory agency with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and the rules adopted pursuant thereto. At all times pertinent to this proceeding, Respondent Jared A. White T/A Jerry White Realty was a licensed real estate broker, having been issued license number 0187087 pursuant to Chapter 475, Florida Statutes. The last license issued to Respondent was as a broker with an address of 231 Skiff Pt. 7, Clearwater, Florida 34630. TITLE TO THE PROPERTY The matters at issue began with Respondent's retention as a real estate broker to bid at a foreclosure auction for a beachfront house and lot at 235 Howard Drive in Belleair Beach, Pinellas County, Florida. Respondent was hired to submit the bid on behalf of Dr. Moshe Kedan and/or his wife, Ella Kedan. Prior to the auction on August 17, 1995, Respondent had no contact with the Kedans. Kathy MacKinnon of Viewpoint International Realty in Clearwater was Respondent’s point of contact with the Kedans. It was Ms. MacKinnon who obtained Respondent's services to bid on behalf of the Kedans, and Ms. MacKinnon who negotiated with Dr. Kedan as to the financial arrangements for both the bid and any ensuing commissions for Respondent. Neither Ms. MacKinnon nor Dr. Kedan was called as a witness in this case. Respondent attended the foreclosure auction and tendered the winning bid on the property. Respondent bid in his own name. Respondent testified that he had bid at several similar sales in the past, and his practice was to bid in the name of the person who would hold title to the property. Respondent did not follow his usual practice here because Ms. MacKinnon failed to instruct him as to whether the property would be titled in the name of Dr. Kedan, Mrs. Kedan, or one of their corporations. Ms. MacKinnon told Respondent she would know on August 18 how the property was to be titled. Respondent's testimony regarding the initial titling of the property is supported by a handwritten note faxed by Ms. MacKinnon to Dr. Kedan on August 17, shortly after the auction. Ms. MacKinnon's note provides instructions regarding payment of the purchase price, indicating that the money must be submitted to the Clerk of the Court no later than 10:30 a.m. on the morning of August 18. The note specifically asks, "Also, whose name do you want the house in?" Respondent testified that on August 18, he went to Atlanta on business, with the understanding that Ms. MacKinnon would handle the payments to the Clerk of the Court and the titling of the property on that date. This testimony is consistent with the handwritten note in which Ms. MacKinnon indicates that she will take the Kedans' checks to the court. The record evidence shows that the payments were made to the Clerk of the Court and that title insurance on the property was timely issued. However, the title and the title insurance policy listed Respondent as owner of the property. Respondent was unaware the property had been titled in his name until he received the certificate of title in the mail, approximately two weeks after the auction. Upon receiving the incorrect certificate of title, he went to the title company and signed a quitclaim deed, effective August 17, 1995, in favor of Ella Kedan. Respondent testified that he had learned from Ms. MacKinnon that the property would be titled in Ella Kedan’s name at sometime during the two-week period after the auction. The quitclaim deed was not notarized until October 9, 1995, and was not recorded until October 10, 1995. However, the face of the deed states that it was made on August 17, 1995. It is plain that the signature line of the notary statement on the quitclaim deed has been altered from August 17, 1995 to October 9, 1995. Respondent had no knowledge of how the quitclaim deed came to be altered. Respondent also had no clear recollection as to why he dated the quitclaim deed August 17, 1995, in light of his testimony that he signed it approximately two weeks after that date. A reasonable inference is that Respondent so dated the quitclaim deed to clarify that Mrs. Kedan's ownership of the property commenced on August 17, the date on which Respondent submitted the winning bid. Respondent also had no knowledge of why the title company failed to record the quitclaim deed at the time he signed it. He testified that on or about October 9, 1995, he checked the Pinellas County computer tax records and discovered that he was still the owner of record. At that time, he returned to the title company to make sure the quitclaim deed was recorded the next day. Petitioner offered no testimonial evidence regarding the events surrounding the titling of the property. Respondent's uncontradicted testimony is credible, consistent with the documentary evidence, and thus credited as an accurate and truthful statement of the events in question. THE CONTRACT FOR REPAIRS Shortly after the auction, Respondent began discussing with Dr. Kedan the possibility of Respondent’s performing repairs on the just-purchased property. Because Dr. Kedan did not testify in this proceeding, findings as to the substance of the negotiations between Respondent and Dr. Kedan must be based on the testimony of Respondent, to the extent that testimony is credible and consistent with the documentary evidence. Respondent testified that Ms. MacKinnon approached him after the auction and asked him if he would be interested in fixing up the house for the Kedans. Respondent testified that he was agreeable to contracting for the work because his carpenter was between jobs and could use the money. Respondent thus met with Dr. Kedan at the doctor’s office to discuss the repairs. Dr. Kedan explained to Respondent that his ultimate plan was to demolish the existing house on the property and to build a more elaborate residence. Dr. Kedan wanted to rent out the house for five years before tearing it down, and wanted Respondent to affect such repairs as would make the house rentable for that five-year period. Respondent testified that Dr. Kedan expressly told him he did not want to spend a lot of money on the repairs. Respondent quoted Dr. Kedan a price of $20,000.00, which was the price it would take to pay for the repairs, with no profit built in for Respondent. Respondent testified that he sought no profit on this job. He had made a substantial commission on the purchase of the property, and anticipated doing business with Dr. Kedan in the future, and thus agreed to perform this particular job more or less as a “favor” to Dr. Kedan. After this meeting with Dr. Kedan, Respondent walked through the house with Irene Eastwood, the Kedans’ property manager. Ms. Eastwood testified that she and Respondent went from room to room, and she made notes on what should be done, with Respondent either concurring or disagreeing. Ms. Eastwood typed the notes into the form of a contract and presented it to Respondent the next day. On September 21, 1995, Respondent signed the contract as drafted by Ms. Eastwood. There was conflicting testimony as to whether Respondent represented himself as a licensed contractor in the negotiations preceding the contract. Respondent testified that he never told Dr. Kedan that he was a contractor, and that he affirmatively told Ms. Eastwood that he was not a contractor. Ms. Eastwood testified that she assumed Respondent was a licensed contractor because Dr. Kedan would not have hired a nonlicensed person to perform the contracted work. She denied that Respondent ever told her that he was not a licensed contractor. The weight of the evidence supports Respondent to the extent it is accepted that Respondent never expressly represented himself as a licensed contractor to either Dr. Kedan or Ms. Eastwood. However, the weight of the evidence does not support Respondent’s claim that he expressly told either Dr. Kedan or Ms. Eastwood that he was not a licensed contractor. Respondent’s subcontractors commenced work immediately upon the signing of the contract. Ms. Eastwood was in charge of working with Respondent to remodel the house, and she visited the site every day, often two or three times. She only saw Respondent on the site once during the last week of September, and not at all during the month of October. She did observe painters and a maintenance man regularly at work on the property during this period. Respondent concurred that he was seldom on the property, but testified that this was pursuant to his agreement with Dr. Kedan that he would generally oversee the work on the property. Respondent testified that he was on the property as often as he felt necessary to perform his oversight duties. Ms. Eastwood testified as to her general dissatisfaction with the quality of the work that was being performed on the property and the qualifications of those performing the work. She conveyed those concerns to the Kedans. Respondent testified that he did not initially obtain any permits to perform the work on the house, believing that permits would not be necessary for the job. On or about October 11, 1995, officials from the City of Belleair Beach shut down Respondent’s job on the Kedans’ property for lack of a construction permit. Respondent made inquiries with the City as to how to obtain the needed permit. City officials told Respondent that a permit could be granted to either a licensed contractor, or to the owner of the property if such property is not for sale or lease. Respondent checked the City’s records and discovered that, despite the fact that he had signed a quitclaim deed on August 17, he was still shown as the owner of the property. Respondent then proceeded to sign a permit application as the homeowner, and obtained a construction permit on October 11, 1995. Respondent testified that because the City’s records showed him as the record owner of the property, he committed no fraud in obtaining a construction permit as the homeowner. This testimony cannot be credited. Whatever the City’s records showed on October 11, 1995, Respondent well knew he was not the true owner of this property. Respondent cannot be credited both with having taken good faith steps to correct the mistaken titling of the property and with later obtaining in good faith a construction permit as the record owner of the property. Respondent testified that in obtaining the construction permit under false pretenses, his main concern was to keep the job going and to finish it in a timely fashion. He testified that there was no financial advantage to him in having the property in his name: he was making no profit on the job, and actually lost money because he had to pay for another title policy in the name of the Kedans. While there may have been no immediate financial advantage to Respondent, he was clearly motivated by the prospect of future profits in projects with Dr. Kedan. The City’s closing down this project jeopardized Respondent’s anticipated continuing relationship with Dr. Kedan, and Respondent took the improper step of obtaining a construction permit as the property owner to maintain that relationship. The Kedans ultimately dismissed Respondent from the job. A claim of lien was filed against the property by the painter hired by Respondent, and the cabinet maker sent the Kedans a lawyer’s letter threatening to file a claim of lien. Mrs. Kedan testified that she paid off both the painter and the cabinetmaker in full. Ms. Eastwood estimated that the Kedans ultimately had to pay an additional $20,000 to $50,000 to complete the repairs to the house, some of which included correctional actions for the improper repairs performed by Respondent’s workers. ALLEGED PRIOR DISCIPLINE Respondent has been the subject of a prior disciplinary proceeding by the Florida Real Estate Commission. In that prior proceeding, the Division of Real Estate's Administrative Complaint alleged that Respondent was guilty of violating Sections 475.25(1)(b) and (1)(k), Florida Statutes. On September 25, 1995, Respondent and the Division of Real Estate entered into a Stipulation disposing of the Administrative Complaint. Under the terms of the Stipulation, Respondent agreed to pay a fine of $1,000, and be subject to one year of probation, during which he would complete 30 hours of post-license education for brokers. The Stipulation expressly stated that Respondent neither admitted nor denied the allegations contained in the Administrative Complaint. The Florida Real Estate Commission entered a Final Order approving the Stipulation on November 14, 1995. Respondent's broker license was suspended by the Florida Real Estate Commission on January 24, 1996. The cause for this suspension was Respondent's failure timely to pay the $1,000 fine imposed by the Stipulation. Respondent paid the fine on February 19, 1996, and late renewed his license on April 24, 1997. In the instant proceeding, Respondent testified that by entering into the Stipulation, he had no intention of pleading guilty to any of the allegations, and that he would never have entered into the Stipulation had he known it would be construed in any way as a guilty plea.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts One and Three of the administrative complaint, and finding Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in Count Two of the administrative complaint, and suspending Respondent’s real estate license for a period of three years and fining Respondent a sum of $1,000. RECOMMENDED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 John Bozmoski, Jr., Esquire 600 Bypass Drive, Suite 215 Clearwater, Florida 34624-5075 Jared White White Realty 231 Skiff Point, Suite Seven Clearwater, Florida 34630 Henry M. Solares Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Herbert Goldman is a registered real estate broker holding license number 0032343 issued by the Florida Real Estate Commission. Herbert Goldman maintains an office at the Robertson Building, Ocala, Florida, consisting of at least one closed room, wherein negotiations and closings of real estate transactions of others may be conducted and carried on with privacy and where the books, records, and files pertaining to the real estate transactions of Herbert Goldman are maintained. On the entry way to the Robertson Building, Ocala, Florida, there is a Building Directory and on this directory, there appears "Goldman, Herbert, Realtor, Room 214." See Exhibit 4. On the second floor of the Robertson Building, Ocala, Florida, in Room 214, Herbert Goldman maintains the office described above outside of which is a sign stating the following: "Herbert Goldman, Registered Real Estate Broker." It was admitted that the second floor of the Robertson Building is generally closed to public and that the Robertson Building is owned by the Estate of Mr. Herbert Goldman's deceased father. By direct contact with Herbert Goldman or his brother, an attorney who maintains an office on the first floor of the Robertson Building with access directly to the street, authorized persons may gain access to Herbert Goldman's office. Herbert Goldman engages in an active real estate brokerage primarily consisting of site location for shopping centers and similar developments for clients throughout the United States. Herbert Goldman does not solicit nor desire to participate in a general real estate practice. Goldman makes no pretense that he maintains an office in Room 214 of the Robertson Building, which is at all times staffed and which is an office in the conventional sense. However, Goldman does maintain an active brokerage practice visiting clients in various portions of Florida and in other states in the course of his brokerage business. Due to the nature of transactions which Goldman is involved in, all of the closings are conducted in the business offices of the firms with which he does business or of their attorneys. The foregoing Findings of Fact are substantially identical to the general proposed findings submitted by Goldman.
Recommendation At hearing, the forthrightness of Mr. Goldman was evident, and it was clear that he did not desire to be uncooperative with the Commission or to flaunt its rules. His concern was that to maintain an accessible office would create more problems than it would solve. He felt that such an office would appear to be closed and "inactive", and to avoid this problem he would have to hire office staff to advise people he did not handle general real estate. This would be an unnecessary expense for him and would possibly create misunderstandings. It was, therefore, simpler to maintain his office where it has been for many years, from where, although inaccessible to the public, he centers his brokerage activity. Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no disciplinary actions be taken. In view of Goldman's general cooperativeness and the fact that he is not totally pleased with the security of his office, it might be useful and beneficial for the Commission to examine with Goldman alternatives which would be acceptable to all concerned and would result in office accommodations which re more conventional and secure but which would not prevent a confusing picture to the public. DONE and ORDERED this 25th day of July, 1977, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mary B. Steddom, Esquire O'Neill & Steddom Post Office Box 253 Ocala, Florida 32670 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, vs. PROGRESS DOCKET NO. 3123 MARION COUNTY HERBERT GOLDMAN, DOAH CASE NO. 77-443 Defendant. /
The Issue The issues are whether Respondent violated Sections 475.25(1)(a), 475.25(1)(b), 475.25(1)(d), 475.25(1)(e), and 475.25(1)(k), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent Phillip F. Niles, is and was, at times material to this matter, a licensed real estate broker. His license number is 0173298. Respondent's license was inactive from August 2, 1996, through March 31, 1997. It was invalid due to non-renewal from March 31, 1997 through May 28, 1997. From May 29, 1997 through August 20, 1997, Respondent was an active broker. From August 21, 1997 through June 10, 1998, Respondent was an inactive broker. From June 11, 1998, through the date of the formal hearing, Respondent was an active individual broker. The address of his last license was 1700 Ridge Avenue, Holly Hill, Florida 32117. Sam L. Berry owned a condominium located at 840 Center Street, Unit 101, Holly Hill, Florida (hereinafter referred to as the property). Sometime prior to April 27, 1997, Mr. Berry asked Respondent to sell the property. Mr. Berry wanted to receive $20,000 for the property. Mr. Berry told Respondent that he could keep any amount of the sales price in excess of $20,000. Respondent placed an advertisement for the sale of the property in the newspaper. Thereafter, he prepared a Contract for Sale and Purchase (the contract) for the sale of the property with $20,000 as the sales price. The buyer's name was John Richards. Meanwhile, Peggy Holloway became interested in the property after seeing Respondent's advertisement. Ms. Holloway contacted Respondent at the number referenced in the advertisement. Subsequently, she met Respondent at the property. At that time Respondent's broker's license was inactive. Ms. Holloway made an offer on the property. In order to make a commission or profit on the sale, Respondent decided to sell the property to her. He changed the existing contract by marking through Mr. Richard's name and adding Ms. Holloway's name as the buyer. Respondent changed the sales price on the contract to $23,000. On April 27, 1997, Ms. Holloway signed the contract as the buyer. That same day, Mr. Berry signed the contract as seller. As part of the contract, and pursuant to Respondent's instructions, Ms. Holloway made a check out to Respondent, personally, in the amount of $500. Respondent assured Ms. Holloway that he would place the money in an escrow account. The contract stated that the $500 deposit would be held in escrow. Respondent did not place Ms. Holloway's money in escrow. He cashed her check and kept the $500. At all times material to the transaction Ms. Holloway believed that Respondent was a licensed real estate broker. Additionally, the contract contained language stating that Respondent was a real estate broker. During subsequent conversations with Ms. Holloway about financing arrangements for the purchase of the property, Respondent appeared drunk. As a result of those conversations, Ms. Holloway became suspicious about Respondent's intentions and his competence to handle the real estate transaction. Ms. Holloway contacted Petitioner and learned that Respondent's license was inactive. On or about May 6, 1997, Ms. Holloway telephoned Respondent. She told him that she did not want to go through with the contract. She demanded that Respondent return her $500 deposit. Respondent failed to return Ms. Holloway's $500 deposit. Ms. Holloway then began to deal with Respondent's brother, Peter Niles, who is an attorney. Respondent's brother prepared a document for Mr. Berry to sign acknowledging receipt of the $500 deposit. Mr. Berry signed the document prepared by Respondent's brother even though Respondent never gave the $500 deposit to Mr. Berry. Ms. Holloway eventually decided to deal directly with Mr. Berry. They agreed on a sale price and closed the transaction with no assistance from Respondent, his brother, or any other individual. Ms. Holloway sued Respondent in the County Court of Volusia County, Florida. In Case No. 97-31586, the County Judge entered a judgment against Respondent in favor of Ms. Holloway. Respondent had not satisfied the judgment as of the date of the formal hearing.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Florida Real Estate Commission enter a final order suspending Respondent's license for a period of ten years and requiring him to pay a fine in the amount of $1,000 within one year of the date of the final order. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Phillip F. Niles 5747 Sweetwater Boulevard Port Orange, Florida 32127 Phillip F. Niles Apartment 503 100 Seabreeze Avenue Daytona Beach, Florida 32118 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
