Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order and therein: Dismiss Counts III-XIX of the Administrative Complaint. Suspend the license of Keith Allen Miller for 90 days and impose a fine of $2,000 based upon Counts I and XX of the Administrative Complaint. Suspend the license of Keith Miller Realty Company for 90 days and impose a fine of $2,000 based upon Counts II and XXI of the Administrative Complaint. DONE and ENTERED this 18th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986. COPIES FURNISHED: Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725 James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Esquire 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Should Petitioner discipline Respondent's real estate sales- person's license for alleged conduct evidencing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes?
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. In particular, Petitioner carries out its duties in compliance with Chapters 20, 120, 455 and 475, Florida Statutes and the rules promulgated under authority set forth in those statutes. At times relevant to the inquiry, Respondent was, and is now, a licensed Florida Real Estate salesperson. Her license number is 0591902. That license was issued in accordance with Chapter 475, Florida Statutes. At times relevant to the inquiry, Respondent worked as a licensed real estate salesperson for Ideal Real Estate Central Florida, Inc., t/a Coldwell Banker Ideal Real Estate in Orange City, Florida (Ideal). The broker for that firm was John S. Chinelli. On April 13, 1993, Respondent listed an exclusive right of sale for property owned by Jason and Kelly Foster at 2853 Sweet Springs Avenue, Deltona, Florida. That listing contemplated that Ideal would earn a real estate commission of 7 percent of the gross purchase price. The listing price in the exclusive right of sale was $69,900. In arriving at the sales price, Mr. Foster relied upon Respondent's advice. That advice included a consideration of the price received for the sale of comparable homes. The establishment of comparable prices as a means to arrive at the listing price for the Foster property involved the use of the Coldwell Banker buyer/seller presentation booklet, as well as a marketing analysis. The price $69,900 was chosen to attract those buyers who were looking for homes that cost less than $70,000. That choice was designed to garner more interest in the home. While the Foster home was being advertised, it was available through the multiple listing pool. Respondent showed the house two times between April 13, 1993, and May 14, 1993. This did not involve a showing to any prospective buyers. Other brokers or salespersons showed the house twice to prospective buyers, but no offers were generated from those showings. Subsequently, Respondent suggested to Mr. Foster that the Foster residence might be appropriate for her use. Respondent offered to buy the Foster property for $65,000. On May 14, 1993, Respondent and Mr. Foster entered into a contract for sale and purchase of the Foster residence. The purchase price was $65,000. Respondent deposited $500 into the escrow account managed by Ideal in furtherance of her interest in the property. The earnest money deposit was placed with Mr. Chinelli pending the closing of the sale. The contract called for Respondent to assume an existing mortgage of $63,556. The contract identified that the Respondent was a licensed real estate agent in Florida, but the purchase was not being made through Ideal. Under this contract, the real estate commission that had been contemplated initially would not be paid to Ideal and Respondent. When Respondent entered into a contract to buy the Foster property, she did not tell Mr. Foster that she would no longer be representing him as a real estate salesperson. The contract between Respondent and Mr. Foster called for a closing date on or before June 30, 1993. In entering into the agreement for Respondent to purchase the home, Respondent told Mr. Foster that she intended to personally occupy that property. Respondent never told Mr. Foster that she entered into the contract to purchase his home with the intent to sell the home to another person. Originally that was not her intention. Respondent held to the view that in the event that her purchase of the home was not concluded, Respondent would still represent Mr. Foster in his desire to sell the home. This is taken to mean that she would be representing Mr. Foster as a real estate salesperson. Sometime around June 20, 1993, Kai and Denise M. Hansen, husband and wife, contacted Ideal to show the Hansens property in the Deltona area. Respondent assisted the Hansens in this pursuit, acting as a real estate salesperson. There was no written agreement between Respondent or her firm signed with the Hansens to represent them in their attempt to purchase a home. Respondent showed the Hansens 8 to 12 homes in the Deltona area. The Hansens were not interested in purchasing those homes. At that point, Respondent suggested that the Hansens look at the home that she was purchasing from Mr. Foster. Respondent told the Hansens that Respondent was buying the Foster house from the Fosters who were moving out of town and that Respondent was helping the Fosters "out of a bind." Respondent told the Hansens that the home might be "too big for her anyway." Respondent told the Hansens that if she could help the Hansens out she would sell the Foster home to the Hansens if the Hansens liked that property. If a suitable home had been found through a real estate listing, other than the Foster residence, a commission would have been paid from the seller of the hypothetical house to the broker for Ideal. In that circumstance, the Hansens would not be responsible for paying a commission to the Respondent or Ideal. The properties other than the Foster property which Respondent was showing the Hansens were shown by Respondent as a sub-agent for the sellers. Respondent showed the Hansens the Foster residence during the week of June 20, 1993. On June 24, 1993, Respondent entered into a contract with the Hansens for sale and purchase of the Foster property. An addendum to that contract indicated that "this contract is contingent upon seller obtaining clear Title on 2853 Sweet Springs, Deltona, FL." The Hansens paid a $1,000 earnest money deposit toward the purchase of the Foster property. That deposit was placed in the escrow account for Ideal. That deposit was to be held until the closing date scheduled for July 16, 1993. Again, it was not contemplated that a real estate commission would be paid to Respondent and Ideal. The price arrived at between Respondent and the Hansens to purchase the Foster property was $72,500. Initially, Respondent had offered to sell the property for $73,000. The Hansens counter-offered to pay $72,000 leading to the final purchase price of $72,500. The contract between the Respondent and the Hansens called for an assumption of a mortgage in the amount of 63,500. Although Respondent had advised the Hansens that the property was being purchased from the current occupants, the Fosters, Respondent did not advise the Hansens of the price the Respondent was paying the Fosters to purchase that property. Respondent never advised the Fosters that the Hansens had sought to purchase the Foster home and that Respondent had entered into a contract with the Hansens for the Hansens to purchase that property. On June 29, 1993, the closing occurred between Respondent and the Fosters and a warranty deed was prepared noting the change in ownership. At the closing Respondent told the Fosters that she still intended to occupy the home. On July 16, 1993, the closing occurred between the Respondent and the Hansens and a warranty deed was drawn conveying the property from the Respondent to the Hansens. As established by Mark A. Carper, a real estate appraiser, the value of the Foster property on April 13, 1993 was between $65,000 and $72,500. In anticipation of moving into the Foster home, Respondent had made arrangements to move out of the residence where she had been living by giving notice that she intended to move.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be entered which dismisses the administrative complaint against Respondent. DONE AND ENTERED this day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 William A. Parsons, Esquire Woerner & Parsons 2001 South Ridgewood Avenue South Daytona, Florida 32119 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent was at all times material herein registered with the Commission as a real estate broker. (See Commission's Exhibit #1). On September 13, 1974, the Respondent, as President of Eldorado Realty, Inc., drew a check in the amount of $25,000 payable to James F. Spindler, Jr., Trust Account and when said check was presented to the Deerfield Beach State Bank for payment, the Respondent corporation's escrow account had a balance of $14,000 as evidenced by its September 30, 1974 statement (see Commission's Exhibit #3). The bank honored this check creating an overdraft in the amount of $11,000. However, evidence reveals that within a few days, Respondent made a deposit sufficient to cover the overdrawn balance. During December, 1973 and January, 1974, the Respondent acted as a real estate broker in negotiating a real property transaction between the Hennemans as sellers and Francis A. and Adeline M. Sines as buyers of a duplex located at 1942 N.E. 4th Street, Deerfield Beach, Florida. The Sines made an offer to purchase the duplex for a total purchase price of $55,000 in the form of a contract to purchase which was executed by the Sines on or about January 3, 1974. (See Commission's Exhibit #5 received in evidence). Based on the undisputed testimony of Adeline M. Sines, Respondent advised the Sines that he would reimburse them for one-half of all closing costs incurred by them in the duplex transaction approximately two days after the closing. The Sines agreed to this proposition based on the fact that they were nonresidents and wanted someone on the scene to manage the duplex. Initially the Sines wanted the Respondent to enter into a joint tenancy with them but Respondent refused stating that it would be "unethical" for him to do so in view of his relationship as selling broker. On May 13, 1974, the property transaction was closed between the buyers and sellers. Shortly thereafter the parties entered into an oral management contract for the duplex between the Respondent individually and as President and the buyer thereafter used the term "S & T Associates" which represented the initials of the last name of the buyers and the Respondent i.e., Sines and Tashea. Evidence introduced during the hearing revealed that the Respondent failed to register the fictitious name "S & T Associates" as required by Subsection 865.09(3), Florida Statutes. (See Commission's Exhibit #13, received in evidence). Approximately two months later on July 17, 1974, the Respondent secured a lease for one-half of the duplex from Francis P. Giblin for a total annual rental of $3,300. The first and last months rent was payable in advance and a $100 security deposit was paid by the lessee. During the following month, Respondent was able to lease the remaining portion of the duplex to Don and T. Starr Guimares, his wife, for the same terms as set out in the Giblin lease. (See Commission's Exhibit #15). Mrs. Guimares testified that she vacated the property approximately six months later i.e., in late February, 1975, due to her dissatisfaction with the way that the Respondent managed the building. On March 5, 1975, the Sines received a letter from the First Federal Savings and Loan Association of Delray Beach advising them that their mortgage loan was delinquent in the amount of $705.59. That letter advised them that they should immediately bring their account current inasmuch as they were being charged at the maximum legal rate permitted while the loan remained delinquent. Two months prior, the Sines received a letter that their flood insurance premium was delinquent and that their escrow account was being charged $88 which represented the premium for the flood insurance which amounts were paid by the Sines by money orders dated March 3 and March 13, 1975. Mrs. Sines repeatedly demanded accountings from the Respondent for monies expended in the management of the property to no avail. Thereafter she retained the services of Attorney James H. Carroll, who by letter dated March 6, 1975, addressed to the Respondent corporation, demanded a full accounting of all matters relating to the duplex and full documentation of the agreement to repurchase. It suffices to say that the Respondent did not comply with Carroll's request or demands for an accounting. However, it is noted that the Respondent, on January 1, 1975, executed a promissory note payable to the Sines for $21,000 within 90 days of January 1, 1975. That note was never honored. Thereafter the Sines sold the property during November, 1975, for a total purchase price of $51,250. Based thereon, it appears that the Sines incurred a net loss of approximately $3,750.
The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005.
The Issue The issue is whether the application of Thomas J. White Development Company for the establishment of a uniform community development district under Chapter 190, Florida Statutes, and Rule Chapter 42-1, Florida Administrative Code, should be granted.
Findings Of Fact The facilities and services that will be provided by the St. Lucie West Services District are the financing, constriction, ownership, operation, and maintenance of the surface water management and control system for the area, and necessary bridges and culverts. The land encompassed by the proposed development district is a development of regional impact. The final revised development order for the area was issued on February 27, 1989, by the City of Port St. Lucie. Exhibit 4. The land within the proposed district is composed of approximately 4,600 contiguous acres located in the city. The proposed district is bounded on the north and south by the city. The western and eastern boundaries are Interstate 95 and the Florida Turnpike, respectively. A map showing the location of the area to be serviced by the proposed district is found in Exhibit 2; a metes and bounds legal description of the proposed district is attached to the petition as Exhibit 1. The overall development to be serviced by the district will include a variety of single family and multifamily housing units, as well as commercial, industrial, and educational uses. A portion of the future land use map for the City of Port St. Lucie was received in evidence as Exhibit 3, and shows approved land uses for the St. Lucie West area. In the proceedings leading to the issuance of the development order, the city determined that the St. Lucie West development would be consistent with all applicable state, regional, and local comprehensive plans and policies. The proposed development of the district is consistent with the City of Port St. Lucie Comprehensive Plan: 1985, as amended. Exhibit 12. Ernest R. Dike, Jr. is the director of development of Thomas J. White Development Company. He is an expert engineer experienced in the planning, construction and management of large scale communities. Mr. Dike has substantial experience as a civil engineer, and holds an advanced academic degree in planning. He served as director of public works and as city engineer for the City of Port St. Lucie for the three years preceding his employment by White. As White's director of development over the last three and a half years, Mr. Dike assisted in the preparation of the petition; he also identified and explained the exhibits which were admitted into evidence. He assisted in crafting the development order for St. Lucie West which was adopted by the City of Port St. Lucie in February, 1987 and amended on February 27, 1989. Dike has been personally involved with the sales of land from White to other developers of property within the proposed district. All the owners of the real property to be included in the district have given their written consent to the establishment of the proposed district. Since the Thomas J. White Development Company purchased the approximately 4,600 acres which became St. Lucie West, Dike has directed the permitting and approval for all aspects of the project. In the design, White Development Company has accommodated the desires of St. Lucie County to obtain a spring training facility for a professional baseball team. White Development Company agreed to give the county 100 acres of land to build a training facility for the New York Mets. A predevelopment order for the stadium was obtained, which permitted the development of certain roads, a bridge over the Florida Turnpike, and an interchange with Interstate 95 which will all provide access to St. Lucie West These transportation facilities were completed without the use of any state or federal funds. None of these expenses will be born by the proposed district. The establishment of the district would not be inconsistent with any of the elements or provisions of the state comprehensive plan, the regional plan, or the local comprehensive plan. Creation of the district would be the best alternative available for providing water management and control facilities for the land encompassed by the proposed district. The South Florida Water Management District (SFWMD) and the City of Port St. Lucie have concluded that when fully developed, the land would discharge no additional water into the city's stormwater system as compared to the contribution of stormwater by the land made before it was developed by White. Mr. Dike also testified about the debt service required to amortize the debt on any benefit bonds issued by the proposed district, and the cost of operation and maintenance of the surface water control facilities to be constructed by the proposed district. Mr. Dike prepared a spread sheet entitled "Projected Statement of Cash Flow for the Years 1990-2000". (Exhibit 18). The estimated construction costs for water management facilities in the projection are reasonable. Based on White's plans for the district, and utilizing the assumptions for absorption of the residential and commercial space to be constructed, the benefit and maintenance taxes are projected to begin at $114 per taxable unit per year. These benefit and maintenance taxes will rise to no more than $170 per taxable unit per year in 1996. These projections are consistent with the testimony of Mr. Dike and of Dr. Henry Fishkind, an economist. All assumptions made in projecting future benefit taxes are reasonable. While these projections do not bind the district, which is not yet formed, and the district's electors could ultimately decide to assume additional responsibilities, the evidence shows that the benefit and maintenance taxes projected are adequate to pay the debt to be incurred by the proposed construction of surface water management facilities. Lester L. Solin, Jr., testified as an expert in land use planning. He was a planning consultant with the City of Port St. Lucie when the development of St. Lucie West by White Development Company was first under consideration, and worked with the city to formulate the overall development plan. St. Lucie West has been integrated into the future land use map for the City of Port St. Lucie Comprehensive Plan: 1985. Mr. Solin is also familiar with the state comprehensive plan. He has reviewed the application for development approval for the St. Lucie West development of regional impact. The proposed district would be consistent with the state comprehensive plan, Chapter 187 Florida Statutes. Mr. Solin is also familiar with the City of Port St. Lucie Comprehensive Plan: 1985 (Exhibit 12). The creation of the St. Lucie West Services District would not be inconsistent with any of the goals, objectives or policies in that plan. Peter L. Pimentel is the current executive director of the Northern Palm Beach County Water Control District (NPBWD). Mr. Pimentel testified as an expert in special district management, planning, staffing, reporting, and coordination with local governments. As the director of the Northern Palm Beach County Water Control District, he oversees a staff which works with other regulatory agencies on permitting, implementation, planning, construction and operation of water management systems. He coordinates construction with contractors, and engineers, and works with lawyers in carrying out the policies established by the district board of directors. The land encompassed by the NPBWD is approximately 200,000 acres. Mr. Pimentel has substantial experience, having worked as the executive director for two large independent special taxing districts, which are similar in structure and have similar powers as the community development district which White Development Company wishes to establish. Mr. Pimentel's testimony was especially persuasive due to his experience with water control entities. The proposed district is the best alternative available for financing, constructing, owning, operating and maintaining the surface water management and control facility for the area encompassed by the proposed district. It provides a more efficient use of resources, and provides the opportunity for new growth in the district to pay for its own surface water management, rather than imposing that cost on general government. The proposed district would not be incompatible with the capacity or uses of existing local and regional community services and facilities. The area to be served by the proposed district is amenable to separate special- district government. Henry H. Fishkind, Ph.D. testified as an expert economist about the economic consequences of establishing a community development district under Chapter 190, Florida Statutes, the economic consequences of financing the surface water management and control system through the use of tax exempt bonds, and the cost of operating and maintaining those structures by a community development district. Dr. Fishkind prepared the economic impact statement for the proposed district required by Section 120.54, Florida Statutes. The costs to the Florida Land and Water Adjudicatory Commission, and to state and local agencies in reviewing the petition are minimal. The costs to the City of Port St. Lucie and to St. Lucie County have been covered by the $15,000 filing fee which White paid to each of those governments. The cost to the City of Port St. Lucie once the district is operating would be negligible. The potential debt of the proposed district will not become general obligations or debts of the city or county governments. The cost of the surface water improvements will be paid by those who benefit from them. The economic impact statement is adequate, and meets the requirements of Section 124.54(2)(b), Florida Statutes. During the first six years, the proposed district would be controlled by Thomas J. White Development Company since White still would be the largest landowner. Tax exempt benefit bonds would be issued to construct the surface water management facilities. Both White and residents of the proposed district would share the burden of amortizing these bonds through benefit taxes. According to Dr. Fishkind, whose opinion is credited, from an economic perspective: The creation of the St. Lucie West District is not inconsistent with the state and local comprehensive plan; The land to be served by the proposed district is of sufficient size, is sufficiently compact and is sufficiently contiguous to be developed as a functional interrelated community; The proposed district is the best alternative for providing surface water management for the community, since other alternatives such as municiple service taking units or homeowners' associations are more expensive or more cumbersome; The area to be served by the proposed district is amenable to separate special-district government. All factors which are required to be considered in establishing a community development district under Section 190.005(1)(e), Florida Statutes, were analyzed by the witnesses presented by the Thomas White Development Company. Their testimony was persuasive, and the application meets all requirements of Chapter 190.
Conclusions Based on the record made, it is concluded: That all statements contained in the petition are true and correct; The creation of the proposed district is not inconsistent with any applicable element of the state comprehensive plan, or the City of Port St. Lucie Comprehensive Plan; The area in the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community; The district is the best alternative for delivering water management services to the area to be serviced by the district, and would be superior to the creation of a municipal service taxing unit, a homeowner's association, or to providing water management by the general county government of St. Lucie County; The community development services provided by the proposed district will not be incompatible with the capacity or uses of existing local and regional community development services and facilities; The area to be served by the proposed district is amenable to separate special district government. Accordingly it is recommended that the Florida Land and Water Adjudicatory Commission grant the petition of the Thomas J. White Development Company and adopt a rule pursuant to Section 190.005(f), Florida Statutes (1987), establishing the St. Lucie West Services District. DONE AND ENTERED this 5th day of September, 1989, in Tallahassee, Leon County, Florida. William R. Dorsey, 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 5th day of September, 1989 APPENDIX A Case No. 89-0072 Witnesses Earnest R. Dike, Jr., 590 NW Peacock Loop, Port St. Lucie, Florida. Lester L. Solin, Solin and Associates, 901 Douglas Avenue, Suite 207, Altamonte Springs, Florida. Peter Pimentel, 5725 Corporate Way, Suite 203, West Palm Beach Florida. Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300 Winter Park, Florida. APPENDIX B Case No. 89-0072 List of Documentary Evidence Exhibit 1. Petition for Rulemaking filed by Thomas J. White Development Company, Inc., including seven exhibits. Exhibit 2. Location Map for the proposed St. Lucie West Services District. Exhibit 3. Future Land Use Map for the area Exhibit 4. Resolution 89-R7 of the city council of Port St. Lucie, Florida, which is the development order for the St. Lucie West Development of Regional Impact. Exhibit 5. Transmittal letter for the Petition for the establishment of the Services District to the City of Port St. Lucie and filing fee, and transmittal letter for the St. Lucie West Development District to the St. Lucie County Board of County Commissioners, and filing fee. Exhibit 6. Transmittal letter for the Petition for the establishment of St. Lucie West Services District to the Florida Land and Water Adjudicatory Commission. Exhibit 7. Letter from the staff of the Florida Land and Water Adjudicatory Commission determining that the Petition appears to satisfy the requirements of Section 190.005, Florida Statutes, and Rule 42-1.009 Florida Administrative Code. Exhibit 8. Resolution 89-R6 from the City of Port St. Lucie, Florida supporting the petition of the Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 9. Resolution 89-41 of the Board of County Commissioners of St. Lucie County supporting the petition of Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 10. Proof of publication in the local newspapers and in the Florida Administrative Weekly of the Notice of the Hearing on the petition for the establishment of the community development district and notices to other interested persons. Exhibit 11. Copy of the State Comprehensive Plan Chapter 187, Florida Statutes (1987) Exhibit 12. Copy of the Comprehensive Plan: 1985 of the City of Port St. Lucie, Ordinance 85-102. Exhibit 13. Resume of Ernest R. Dike, Jr., P.E. APPENDIX B CONT. Case No. 89-0072 Exhibit 14. Permit granted to Thomas J. White Development Company, Inc. by the South Florida Water Management District for the construction and operation of a water management system. Exhibit 15. The prepared testimony Lester L. Solin, Jr. Exhibit 16. The resume of Peter L. Pimentel. Exhibit 17. The prepared testimony of Henry H. Fishkind, Ph.D. Exhibit 18. The additional prepared testimony of Mr. Dike including the computer generated spread sheet. COPIES FURNISHED: E. Lee Worsham, Esquire HONIGAMAN MILLER SCHWARTZ and COHN 1655 Palm Beach Lakes Boulevard Suite 600 West Palm Beach, Florida 33401 James C. Vaughn Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32399-0001 William Buezett The Governor, Legal and Legislative Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 Carla Stanford, Esquire Department of Community Affairs 2740 Centerville Drive Tallahassee, Florida 32399-2100 David McIntyre, Esquire County Attorney 2300 Virginia Avenue Fort Pierce, Florida 34982 Roger Orr, Esquire City Attorney 220 South Second Street Fort Pierce, Florida 33450 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning & Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue Whether the Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent was guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b) Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent David William Tricker is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0270690 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker in care of Florida Country Clubs International, Inc., 555 Estates Place, Longwood, Florida, 32779, a Florida corporation. Respondent became the broker for Henro, Inc. (hereinafter Henro) and Henro Realty, Inc. early in 1993 and served until approximately October 21, 1993, when Respondent submitted his letter of resignation to the Florida Real Estate Commission ("FREC"). The Henro companies were owned by a British couple, David and Marion Moth, who also did business in the United Kingdom as Henro Land Leisure Limited. On or about July 8, 1993, Henro negotiated a verbal contract with Gilman Pool Services to maintain and provide pool cleaning services at homes managed by Henro on behalf of its owners. The contract was followed up with a letter dated the same date from Henro and signed by Marion Moth, as vice president. The fee for the service was $65.00 per month for each pool cleaned. Payment terms were to be on 30-day invoice. Heather and Peter Shimmin operated the pool service, and relied upon Henro to pay them for their services. There was no clear and convincing evidence that the Shimmins relied upon Respondent to pay them for their services, or that Respondent was aware of this contract between Gilman Pool Services and Henro. The July 1993 bill to Henro was $5,227.40. On September 1, 1993, Henro issued check #2123 in the amount of $5,227.40 to Gilman Pool Services. This check did not clear and was later made good by Henro by payment in cash to Gilman Pool Service. The August 1993 bill was in the amount of $6,352.36 was not paid. The September, 1993 bill, which amounted to $5,887.00 and the October, 1993 partial bill in the amount of $1,595.00 remains due, owing and unpaid. On October 31, 1993, Henro went out of business. At the time Henro closed, Henro owed Gilman Pool Services $13,061.76, in unpaid maintenance and pool cleaning services. Gilman Pool Services made no demand upon Respondent for past due invoices. The testimony of the witness, Hal Klein, was not credible.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent not guilty of violating Subsections 475.25(1)(b), Florida Statutes, and DISMISSING the Administrative Complaint. DONE and ENTERED this 1st day of December, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 4(in part), 5(in part), 6, 7, 8, 9, 10(in part). Rejected as against the greater weight of credible evidence: paragraphs 3(in part), 4(in part), 5(in part),10(in part), 11, 12. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 4, 5, 6, 7, 8, 9, 10, 11, 12(in part). Rejected as against the greater weight of evidence: paragraph 3(in part). Rejected as argument: paragraph 12. COPIES FURNISHED: Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Steven W. Johnson, Esquire Senior Attorney Florida Department of Business and Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1772 David W. Tricker (pro se) 555 Estates Place Longwood, Florida Stephen T. Ball, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Plaza Post Office Box 633 Orlando, Florida 32802-0633
Findings Of Fact The following findings of fact are based upon the stipulation of the parties, as well as the evidence presented at hearing, including the demeanor of the witnesses: Polynesian Isles Developers, Ltd., was a developer of a time-share property, within the meaning of Section 721.05(9), Florida Statutes, in Osceola County in 1984. Bailey M. Weldon was a general partner of Polynesian Isles Developers, Ltd., and a developer of time-share property known as Polynesian Isles Resort Condominium I from November 23, 1982 to January 16, 1985. Polynesian Isles Developers, Ltd., submitted certain advertising to Petitioner for approval on January 9, 1984, and was noticed of deficiencies in its Polynesian Isles- Super Bowl advertising materials by notice issued by the Petitioner on January 17, 1984. These advertising materials were distributed in the January 18, 1984 Super Bowl Supplement to the St. Petersburg Times without correction of the noticed deficiencies. No time-share unit weeks were sold as a result of this ad. It was represented in the Polynesian Isles Developers, Ltd., public offering statement, and its sales contract with purchasers of time-share unit weeks, that purchasers would obtain fee title to purchased unit weeks free and clear of encumbrances. It was also represented in such sales contracts with purchasers of time-share unit weeks that Polynesian Isles Developments, Ltd., as Seller, would provide purchasers with an owner's title insurance policy upon closing Respondent agrees and stipulates that no owner's title insurance policy was issued for some of the unit weeks sold and closed in 1984. The evidence establishes that no title insurance policies were issued for 329 unit weeks. Respondent established an escrow account for the deposit and withdrawal of all funds received from, or on behalf of, time-share purchasers. Daniel Giannini served as escrow agent for Polynesian Isles Developers, Ltd., for the purpose of receiving and disbursing funds pursuant to Section 721.08 Florida Statutes. Respondent agrees and stipulates that some affidavits for release of escrow funds were delivered to Daniel Giannini as escrow agent when all conditions required by Section 721.08, Florida Statutes, had not occurred. The evidence establishes that these affidavits falsely stated that all conditions for closing had occurred when, in fact, closing had not properly occurred on 331 unit weeks in 1984 because title was not conveyed free and clear of all encumbrances. As a result, purchasers' funds in escrow were released to Respondent without the conveyance of free and clear title or the issuance of title insurance policies. Goldome Savings Association held the primary mortgage on the first phase of the Polynesian Isles Development. This mortgage encumbered unit weeks sold by the Development. Respondent failed to obtain partial releases from Goldome of the mortgages on 331 unit weeks which closed in 1984, and therefore the sale of these weeks closed without free and clear title. Deeds to the 331 unit weeks were recorded without disclosure of the underlying mortgage. Title insurance policies were not issued on 329 of these unit weeks as a result of the failure to obtain releases. Respondent Weldon was the general partner who was in charge of legal matters, closings and title insurance. He also supervised the general manager of Polynesian Isles with his other general partner, Richard Barcley. It was Weldon's general practice to sign escrow affidavits in blank and to rely on his employees to insure that they were used properly at closings. The general manager of the development during 1984 was Frank Cuyler. Respondent terminated Cuyler when he learned that Cuyler had agreed to an unfavorable change in the terms of Goldome's mortgage as an inducement to obtaining financing for phase II of the development, and had failed to report such change to Respondent, or obtain his approval. The effect of the change which was agreed to by Cuyler was to increase the amount the development had to pay to Goldome for a partial release on each unit-week from $1800 to approximately $3800. When it became apparent that it was not financially feasible for the development to pay this increased amount for releases, Cuyler simply proceeded to close on 331 unit-weeks without releases. Respondent was unaware of this practice, and when it came to his attention he immediately gave instructions that it be discontinued, and terminated Cuyler. In addition, he raised approximately $1.4 million, including $300,000 of his own money, to obtain the releases on these 331 unit-weeks, and to cure any mortgage default. However, the evidence does not establish that releases were ever obtained.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order assessing an administrative penalty against Respondent Bailey M. Weldon in the amount of $10,000. DONE AND ENTERED this 17th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1988. APPENDIX (DOAH Case No. 86-1003) Rulings on Petitioner's Proposed Findings of Fact: 1.(a)-(c) Adopted in Finding of Fact 1. 1(d) Adopted in Finding of Fact 2. 1(e) Adopted in Finding of Fact 3. 1(f)-(g) Adopted in Finding of Fact 5 1(h)-(i) Adopted in Finding of Fact 3. 2(a)-(b) Adopted in Finding of Fact 2. 2(c)-(e) Adopted in Finding of Fact 5. 2(f) Rejected as unnecessary and cumulative. 2(g)-(h) Adopted in Finding of Fact 8. 2(i)-(j) Adopted in Finding of Fact 6. 2(k) Adopted in Finding of Fact 2. Rulings on Respondent's Proposed Findings of Fact: Rejected since this is a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 1. 3A Rejected as irrelevant to the charges in this case. 3B Adopted in Finding of Fact 2. 3C Adopted in Findings of Fact 3, 5. 3D Adopted in Finding of Fact 3, assuming typographical error of 229 which should be 329. 3E Adopted in Finding of Fact 4. 3F(a) Rejected in Finding of Fact 7. 3F(b) Rejected as not based upon competent substantial evidence in the record. 3F(c) Adopted in part in Findings of Fact 6, 7 and 8. 3F(d) Adopted in part in Findings of Fact 4, 6. COPIES FURNISHED: Pamela S. Leslie, Esquire Eric H. Miller, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Charles Edwin Ray, Esquire 6534 Central Avenue St. Petersburg, Florida 33707 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough street Tallahassee, Florida 32399-1007 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact The land encompassed within the mobile home park known as Mohawk Village was purchased by Winter Springs Mobile Home Corporation, a corporation owned and controlled by the Tanner family. The majority of the stock in Respondent is owned by the oldest son; another son is president of Respondent; and the father, L. William Tanner, served as "consultant" to the corporation. This tract was initially divided into some 700-odd lots which were being sold to the public in 1980 as mobile home sites. The land was purchased from North Orlando Sewer and Water Company, which agreed to provide sewer and water services to the subdivision and to have these facilities in place by January 1, 1981. Respondent never registered with the Petitioner in accordance with Chapter 498, Florida Statutes. North Orlando Sewer and Water Company failed to provide sewer service to this development and none of the home sites were available for occupancy January 1, 1981, as promised to buyers by Respondent. Without sewer service it became necessary to go to septic tanks and this required larger lots per mobile home site. The tract was replatted to provide 300-odd lots despite the previous sale of smaller lots to buyers. These buyers were advised their lots would have to be swapped and when some objected and demanded their money back, without success, Petitioner was made aware of the development and investigated. The investigation led to the entering of a Cease and Desist and Consent Order (Exhibit 1). Therein Petitioner essentially agreed to forego action against Respondent for prior violations of Chapter 498, which Respondent contended it was subject to; and Respondent agreed to cease all leasing until the site was ready for occupancy, to provide Petitioner with copies of all leases in effect, as well as copies of all future leases executed, to deposit funds received from buyers in escrow until after receipt of a certificate of occupancy, and to take necessary steps to ensure all future leases fall within the statutory exemptions set forth in Section 498.025(1)(g), Florida Statutes. L. William Tanner was paid a consulting fee by Respondent "in the ballpark of $100,000." In addition, he was to own the companies that provided utilities to the park (after default by North Orlando Sewer and Water Company), and furnished porches, decks, built walkways, roads, etc. Following the Consent Order funds were received payable to Tanner-controlled companies that were not deposited in the escrow account. These funds were not lease payments but came from the lessees for sewer and water hookups, porches, decks, etc. Mohawk Village received its first certificate of occupancy on 14 January 1982. Between 17 April 1981, when the Consent Order was entered, and 14 January 1982, lot leases were sold to Gould on 30 November 1981; to Herring on 12 September 1981; and to Roberts on 14 January 1982 (Exhibit 6). The sales to Gould and Herring were clearly during the period Respondent had consented not to sell leases. Exhibit 1 authorized Respondent to renegotiate and relocate current lessees to new mobile home sites under a plan to use alternate utility services from those initially to be provided by North Orlando Sewer and Water Company "if such plan is implemented at no additional cost to the individual lessees." Those who had bought leases under the original scheme agreed to pay $29 per month to lessor. Leases sold after the decision to use septic tanks where the number of lots was reduced from 700-odd to 300-odd, provided the lessees would pay the lessor $59 per month. Respondent advised the earlier lessees that they would have to pay $59 per month in lieu of $29. When they objected and demanded refunds of what they had paid, some of them were promised refunds but to date very few have received any refunds. Changing their rental fee from $29 to $59 violated the Consent Order. The only change in the lease before and after the execution of the Consent Order was the change of this monthly rental payment. Since the original lease did not qualify for exemption under Section 498.025(1)(g), Florida Statutes, the amended lease, which merely changed the monthly rental fee, did not qualify for exemption. Leases on these lots were sold at prices ranging from $1,000 to $7,000. At no time relevant hereto did Respondent hold a dealer's license to deal in or sell mobile homes (Exhibit 3) There was no valid reservation program established by Respondent pursuant to Section 498.024, Florida Statutes, nor did Respondent apply for or receive approval of a public offering statement for Mohawk Village (Exhibit 2). All leases sold provided, in addition to a habitable lot, that the seller would provide recreational facilities. Those leases sold in 1980 promised a lot on which the buyer could move his mobile-home by January 1, 1981. Not only was the deadline missed but also Respondent has provided no recreational facilities. One witness who sold her home and bought a mobile home could not move it to the site in accordance with the contract because of lack of utilities and was forced to acquire another residence. Although proper demand was made she has been refunded none of her purchase money. According to his testimony, L. William Tanner has developed about one hundred subdivisions throughout the United States since 1946. Some 20 such subdivisions have been developed by him in Florida. He is aware of the Florida statutes regulating the subdivision and sale of lands, and contends that the Mohawk Village subdivision is exempt because Petitioner does not have jurisdiction over 99-year leases. He further contends that the monthly rental payments of $29 or $59 for 99 years brings the price paid for the lots to more than $50,000, thereby exempting them from the provisions of Chapter 498. Prior to the commencement of this hearing, Mohawk Village was transferred to Gould, who had been involved in supplying mobile homes to lot purchasers in the park. According to Tanner's testimony "it was not much of a sale" with him insisting Gould and Mohician Valley (apparently the new name for the mobile home subdivision) acknowledging existing mortgage, the Consent Agreement with Petitioner, and the obligation to refund the monies. No documentary evidence was presented to show that Tanner or his immediate family does not continue to own controlling interest in this mobile home park.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Holiday Interval Ownership, Inc., is the developer and seller of Ocean 80 Resort, a condominium and time-share plan. Ocean 80 Resort is located in the Florida Keys on U.S. Highway 1, mile marker 80, Islamorada, Florida. Mr. and Mrs. William Seibert II received an advertisement concerning Ocean 80 Resort which promised prospective buyers a free trip to Mexico simply for visiting the condominium and listening to a sales presentation. On May 28, 1983, Mr. and Mrs. Seibert went to Islamorada and visited Ocean 80 Resort. The Seiberts were given a sales presentation by Bonnie Seide, a sales agent for Respondent. Ocean 80 Resort consists of 79 separate units located in one building. There are 8 different types of units, ranging from the Mako units which are efficiencies consisting of approximately 520 square feet, to the Tarpon units which are 2 bedroom, 2 bath units consisting of approximately 1,056 square feet. The Seiberts first listened to a description of the program and facilities of Ocean 80 Resort and then were taken by Bonnie Seide to see a model on the fourth floor. The Seiberts told Ms. Seide that they were only interested in the large Marlin units, which are 2 bedroom, 2 bath units consisting of approximately 944 square feet. The Seiberts were taken to Model Unit 404, a Marlin unit located on the fourth floor. Ms. Seide told the Seiberts that there was a similar unit available on the third floor below. The exact words used by Ms. Seide to describe the third floor unit were not established by the witnesses at the hearing with any degree of persuasiveness. Neither party presented the testimony of Ms. Seide. The Seiberts believed that the "similiar" third floor unit would be located directly beneath the model unit with an identical view of the pool as was enjoyed by the model unit. The model unit was situated in the middle of the corridor, with its balcony directly overlooking the pool. The Seiberts and Ms. Seide went down to the third floor, but were unable to walk down the hall and visit the unit that the Seiberts were to purchase because of construction. The Seiberts and Ms. Seide looked down the corridor towards the unit. There were no numbers on the doors at that time. Even though they were unable to inspect the unit, the Seiberts decided that they would purchase it anyway. The Seiberts then went to the sales office where they entered into a purchase agreement with Respondent for Unit 300, week 52 in Ocean 80 Resort. Although the Seiberts believed that their unit would be located directly beneath the model unit which they were shown, they were apparently unconcerned that the model unit's number was 404 and their unit was numbered 300. The purchase agreement provided that the price of the unit would be $9,270 and that the Seiberts would be entitled to occupancy of the unit during the appropriate week of 1983. The purchase agreement specifically advised the Seiberts of their right to cancel the contract without penalty or obligation within 10 days from the date of signing the agreement. The purchase agreement contained an exclusionary clause in bold print which stated as follows: Oral representations cannot be relied upon as correctly stating the representa- tions of the developer. The developer makes no representations other than those contained in this contract, the offering statement and the condominium documents. Upon entering into the purchase agreement on May 28, 1983, the Seiberts received several condominium documents, including a prospectus text, declaration of condominium, articles of incorporation and a floor plan. Because 1983 was a leap year, week 52 entitled the Seiberts to two weeks occupancy. The Seiberts decided that they would rent out one of the weeks and "spacebank" the other with Resort Condominiums International, Inc., (RCI). RCI is an organization which trades and transfers time share units. The Seiberts were interested in exchanging their unit week for a unit week in another facility in Paris. The Seiberts submitted a form to Ocean 80 Resort indicating that they desired that one of their weeks in 1983 be placed in a rental pool. At some point, the Seiberts were advised by Ocean 80 Resort that their unit would not be ready for occupancy in 1983. Nevertheless, the Respondent mailed the Seiberts a check for $371.02 reflecting a rental fee for the unit. In January of 1984, the Seiberts were advised by RCI that their request to "spacebank" and exchange their unit was denied because the unit was not yet ready for occupancy. A few weeks later, Ocean 80 Resort spacebanked a substitute unit with RCI on the Seiberts' behalf. Because their unit was not completed and ready for occupancy in 1983 and because their initial request to space-bank with RCI had been denied, the Seiberts became increasingly irritated and dissatisfied with Ocean 80 Resort. On March 17, 1984, the Seiberts went to Ocean 80 Resort and visited their unit for the first time. Much to their dismay, the Seiberts discovered, apparently for the first time, that unit 300 was not in the middle of the corridor, directly opposite the pool. Unit 300 afforded a view of the pool, but the unit was located at the end of the corridor directly opposite the roof of a common area. The pool was visible from unit 300 when looking at an angle from the balcony. Although some attempts were made by Ocean 80 Resort to resolve the matter by substituting a different unit, the Seiberts decided that they wanted nothing further to do with Ocean 80 Resort and desired a cancellation of the agreement. The Seiberts have never used their unit at Ocean 80 Resort. Stan Zabetakis received an advertisement for Ocean 80 Resort Condominium in 1983 and went to a sales presentation primarily because he was interested in receiving a promised free trip to Mexico. After listening to the sales presentation, Mr. Zabetakis purchased unit #202, week 2 for a total cost of $5400. On December 29, 1984, Mr. Zabetakis visited Ocean 80 Resort to "take a look around" and spoke with a sales representative. After this discussion Mr. Zabetakis decided to enter into a purchase agreement with Respondent whereby he would trade his current unit in on a larger, more expensive unit. The purchase agreement, signed by both parties on December 29, 1984, reflects that Zabetakis purchased unit 414, week 5 at a total purchase price of $8,500. Zabetakis was credited with $5,400 as equity in his previous unit (202) and the balance of $3,100 was financed with Respondent at 14 percent interest for 5 years, with monthly payments of $72.14. The Purchase Agreement specifically provided that the buyer had the right to cancel the contract without any penalty or obligation within 10 days from the date the contract was signed and executed. On January 6, 1985, Mr. Zabetakis wrote Respondent a letter indicating his desire to cancel the purchase agreement for unit 414, week 5. The Respondent received Mr. Zabetakis' letter of cancellation on January 8, 1985. Initially, Respondent refused to honor Mr. Zabetakis' cancellation and claimed that the letter was not received within the statutory 10 day period. On August 17, 1985, the Respondent changed its position and wrote Zabetakis a letter acknowledging the timely receipt of his letter of cancellation and enclosing a Quit-claim Deed for unit 414, week 5, which Zabetakis was asked to sign and return. However, by this time, Respondent had resold Mr. Zabetakis' original unit week. Further complicating Mr. Zabetakis' dilemma, by the time Respondent agreed to cancel the purchase agreement, the Respondent had sold the note and mortgage to a third-party financial institution. Mr. Zabetakis made his first payment of $72.14 in March 1985 and has made a timely payment of $72.14 each month, up to the date of the final hearing. Because Mr. Zabetakis' original unit and his mortgage note had been sold, he was leery of signing the Quit-claim Deed and did not return it to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered: Assessing a civil penalty of $5,000 against Respondent; and Requiring that Respondent honor the right of Mr. Zabetakis to cancel his contract and receive an appropriate refund. DONE and ORDERED this 31st day of March, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 31st day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1765 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 2. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 3, 4, 5, 6, 7, 8 and 9. Sentence 4 is rejected as misleading and contrary to the weight of the credible evidence presented. The credible evidence did not establish that Ms. Seide stated that the similar unit would be located directly below the unit which the Seiberts were shown. Sentence 1 is rejected as contrary to the weight of the credible evidence. Sentences 2 and 3 are rejected as misleading but addressed in Findings of Fact 9 and 10. Sentences 4 and 5 are adopted in substance in Finding of Fact 10 and 11. Sentences 1 and 2 are adopted in substance in Finding of Fact 17. Sentences 3 and 4 are rejected as misleading but addressed in Finding of Fact 18. Sentence 1 is rejected as misleading but addressed in Finding of Fact Sentences 2 and 3 are adopted in substance in Finding of Fact 19. Adopted in Finding of Fact 22. Adopted in Findings of Fact 24, 25, 26 and 27. Rejected as subordinate and/or unnecessary. COPIES FURNISHED: Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John A. Ritter, Esquire 9040 Sunset Drive - Suite 20 Miami, Florida 33173 James Kearney Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard Coats Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
