Findings Of Fact The complaining witnesses in this case, the Marino's, owned real property in Fern Park, Florida that they listed in November, 1973, with Area One, Inc., a corporate broker. They were very anxious to sell this property. At all times here involved, respondent was a registered real estate broker and was employed as a salesman and office manager of Area One, Inc. The property was listed through salesman Eleanor Stanfield although respondent Greene accompanied her to the Marino's when the listing was obtained. Approximately two weeks thereafter, respondent obtained a prospective buyer for the property who was willing to purchase but couldn't meet the cash down payment required to make up the balance over a 95 percent mortgage. The buyer, Borsack, was an acquaintance respondent had known socially for a year or so. The suggestion was made that if Marino could loan Borsack the money for the down payment the latter would sign a balloon note payable twenty dollars per month for the first five years with the balance then due and payable. When bringing this proposal to Marino, respondent told him it was not the best deal but it was the best he could offer at the moment. At the time, Borsack was employed as a salesman and was apparently earning a good salary. Marino was receptive to the idea and agreed to loan the buyer $2400. Marino was advised by his lawyer that he should have more security for the loan than the note signed by Borsack alone and respondent agreed to guarantee the note. Marino prepared a check for $2400 which he exchanged for a cashier's check for a like amount. This was given to respondent when he executed as the guarantor and was subsequently given to the closing agent. There was conflicting testimony regarding the dispenser of the information that the existence of the note should be withheld from the mortgage broker at the closing. The complaining witnesses contended that respondent so advised them, but he denies ever giving such advice. Regardless of the complicity of respondent in this regard, both parties to the contract were aware that the mortgage would not be approved if the existence of the loan was disclosed to the mortgagee. To account for his cash payment at closing, Borsack produced for the mortgage a letter from his sister reciting a gift from her of $2200. Borsack also signed a residential loan application (Exhibit 8) in which he indicated no financing other than first mortgage and the cash he would pay at closing. Both buyer (Borsack) and seller (Marino) executed an affidavit (FNMA Form 1009)(Exhibit 10) on which they advised the mortgagee no secondary financing was involved in the transaction. At the time the loan was made by Marino to Borsack the former's attorney was aware of the circumstances surrounding the transaction and this attorney advised Marino that it would be all right for him to accept the note provided payment was guaranteed by respondent. Although no testimony was elicited from the attorney in this regard, I would expect him to be cognizant of the fact that the mortgage would not be approved if the mortgagee was aware of the loan from seller to buyer. Considerable testimony was adduced regarding whether or not the promissory note given by the buyer to the seller constituted secondary financing as intended on Exhibits 8 and 10. Since this determination is not necessary to the results reached below, respondent's understanding that "secondary financing" relates only to that financing that would create a lien on the property is likewise immaterial to the result. During a 60 day period including the time this transaction occurred, respondent sold four pieces of property for the Marino's. At no time during the negation which resulted in the sales of the property from Marino to Borsack did respondent give any false or misleading information to the Marinos. Although no evidence was presented to this effect, the complaint alleges, and the answer admits, that after the transaction closed Borsack subsequently defaulted on his mortgage and on his note to Marino; that respondent made a few payments on the note he had guaranteed before stopping these payments; and that Marino obtained a judgment against respondent for the amount of the promissory note. Thereafter, in December 1975, some two years after any act of respondent in this transaction that could have given rise to a violation of Chapter 475, F.S. occurred, the Marinos filed a complaint with the FREC and the investigation and administrative complaint here involved followed.
The Issue Whether Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, false promises, dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes (1993).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0267809. The last license issued was as a broker trading as “Trendsetter Realty and Mortgage”, 977 Humphrey Boulevard, Deltona, Florida 32738. The Respondent operated as a real estate broker during the relevant time period of approximately June 1993 through July 1995. The Respondent is not licensed to practice law in the State of Florida or any state. On or about June 18, 1993, the Respondent prepared certain documents in connection with the sale and purchase of real property located at 1847 North Acadian Drive, Deltona, Volusia County, Florida. Respondent prepared the contract based upon the offer made by the buyer, Juan and Susana C. Veliz, and the counteroffer made by the seller, Jerry and Tammy Maltempi, and in accordance with the wishes of buyer and seller. The subject property was encumbered by a first Mortgage, which secured a Note held by J.I. Kislak Mortgage Corporation and guaranteed by the federal Department of Veterans Affairs. The mortgage and note contained a “due on sale” clause and clearly stated on its face that “[t]his loan is not assumable without the approval of the Department of Veterans Affairs or its authorized agent.” The Buyers and the Sellers were aware of this restriction at the time of the transfer of possession. The Buyers executed an initial, handwritten, offer that specifically stated in bold, capitalized print that "if not fully understood, seek the advice of an attorney prior to signing.” The Buyers then received a typed counteroffer, as opposed to the handwritten original offer, which also stated the same admonition to seek advice of an attorney. The counteroffer was mailed to the Buyers for review and execution by Mr. Veliz and his wife. The Buyers read the numbers, but not the fine print, prior to signing the contract. The sale document was executed by the Buyers and Sellers on or about June 18, 1993 and was denominated a Contract for Deed with a sale price of $85,000. The contract provided for a $1,000 initial deposit, followed by a second deposit of $8,783.50 which was due upon acceptance by the Sellers. The transfer of title was to occur on or before July 6, 1995. Upon payment of the full deposit, the Sellers would transfer possession to the Buyers and the escrowed funds (except for $1,200) would be disbursed. Buyers would assume the responsibility of repair and maintenance of the property upon taking possession. On or about July 3, 1993, Buyers tendered the sum of $9,783.50 to the Respondent and assumed possession of the property. Respondent explained to the Buyers about the agency relationship and her representation of the Sellers; that she owed a duty of fair dealing and honesty to the Buyers; the risks associated with an agreement for deed; the foreclosure status of the property the Buyer’s were purchasing; and the fact that the deposits were non-refundable after occupancy of the premises. Respondent disclosed the nature of her agency relationship, both orally and in writing, to both the Buyers and the Sellers in the transaction at issue. Respondent disclosed, in writing, to the Buyers that deposits being made by the buyer were non-refundable upon occupancy of the premises. At the hearing, Mr. Veliz demonstrated his ability to speak, read and understand the English language. The Buyers had ample opportunity to seek independent representation, either through a realtor or through an attorney prior to signing the contract and prior to taking possession of the premises. The Buyers chose not to do so. Prior to Buyers taking possession of the home, Respondent, via telephone conversation, described this transaction to J.I. Kislak Mortgage Corporation, the holder of the note and mortgage on the property, and advised them that a sale was pending and the past due mortgage payments would be brought up to date. Between July 9 and 12, 1993, with the consent of the parties, the Respondent disbursed: $2,962 to herself, as a real estate commission; $2,857.12 to the sellers; and $2,759.38 to J. I. Kislak Mortgage Corporation for payment on the mortgage. Respondent retained $1,200 in escrow for future closing costs. As a service to the parties, Respondent collected the monthly mortgage payment from the Buyer and forwarded it directly to the mortgage holder for several months. Buyers paid the agreed upon amount of $657.00 per month from August 1993 until May or June 1994. In June 1994, J.I. Kislak Mortgage Corporation refused to accept any additional payments toward the mortgage until an adjustment was made in the escrow account for the payment of insurance premiums on the property. The mortgage company called for an upward adjustment in the approximate amount of two hundred dollars per month. Neither the Buyers nor the Sellers were willing or able to pay the additional premium amount. The mortgage corporation subsequently foreclosed and took possession of the property during the last half of 1994. Buyers lost their equity in the house including approximately eight thousand dollars in improvements to the property. Following the foreclosure, Respondent disbursed the balance remaining in her company’s escrow account to the Buyers, in the amount of $1,205, on or about September 22, 1995. Respondent prepared an agreement or contract for deed which a broker is not authorized to prepare. Respondent failed to anticipate a possible increase in the mortgage payment escrow for taxes and insurance at the time the original contract was prepared. The failure of the transaction to close, and the losses suffered by the parties, were not due to a calling of the loan by the mortgage company pursuant to the due on transfer clause of the mortgage. The failure of the transaction to close was not due to the non-refundability of the deposits made by the Buyers. There was no intent on the part of Respondent to commit fraud, misrepresentation, concealment, false promise, false pretense, dishonest dealing or breach of trust in this matter. Respondent is guilty of culpable negligence in this matter.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission, enter a final order finding Respondent Not guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing or breach of trust in a business transaction. Guilty of culpable negligence, in violation of Section 475.25(1)(b) Florida Statutes, and impose an administrative fine in the amount of $1,000 and suspend Respondent’s license for a period of three months. RECOMMENDED this 30th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE 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 30th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman Chief Attorney, Real Estate Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32808 Wade F. Johnson, Jr. Esquire Wade F. Johnson, Jr., P.A. 118 East Jefferson Street Orlando, Florida 32801 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not the Respondent, Peter Van Wie Investments, Inc., and. Peter Van Wie its president, a licensed mortgage broker in the State of Florida, by placing deposited monies received from investors in savings account number 4-0011068 at the United States Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, said savings account being in the name of Peter Van Wie Investments, Inc. is 4. in violation of rule 3D-40.06(7), Florida Administrative Code (formerly Rule 3-3.06(7), Florida Administrative Code) , and thereby subjected to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing, and planning of the mortgage loans set forth in Exhibit "A" (of the Administrative Complaint) in violation of Section 494.08(5), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) , Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in Exhibit B (of the Administrative Complaint) in violation of Section 494.08(4) , Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4) Florida Administrative Code) and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, on or about March 12, 1975, received from Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development, and subsequently on April 1, 975, wrote a check to First National Resources. in the amount of $11,760.00 to pay for said promissory note and mortgage for Marie W. Neal, which on April 24, 1975, was returned by Lauderdale Beach Bank for non- sufficient funds in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida, Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to obtain for Marie W. Neal, a promissory note and mortgage or remit said funds for such promissory note and mortgage to her in violation of Section 494.05(1)(e) Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to account or deliver to Marie W. Neal after demand, said funds which came to $14,000.00 which were placed with the Respondent for purposes of investing in a promissory note and mortgage for land located in Dora Pines Development which funds had come into the hands of the Respondent which were and are not the property of the Respondent in which in law and equity the Respondent is not entitled to retain, in violation of Section 494.04(1) Florida Statutes, and thereby subjected Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to place, immediately upon receipt, funds in the amount of $14,000.00 received of Marie W. Neal into an escrow account, with an escrow agent located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida, in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjecting the Respondent to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes.
Findings Of Fact Peter Van Wie Investments, Inc. through the person of Peter Van Wie, its president, was a licensed mortgage broker in the State of Florida during the time period contemplated by the Administrative Complaint. The Respondent was issued said license on October 4, 1974. At a time when the Respondent's mortgage broker license was in effect, Peter Van Wie Investments, Inc. and/or Peter Van Wie deposited monies received from investors in a savings account number 4-0011068, at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida. This savings account was in the name of Peter Van Wie Investments, Inc. While operating as Peter Van Wie Investments, Inc., Peter Van Wie Investments, Inc. and/or Peter Van Wie paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04(04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging negotiation, selling, purchasing and planning of mortgage loans. These sales by Mr. Beck and Mr. Clarke are identified in the Exhibit "A to the Complaint and Petitioner's Exhibit "C" admitted into evidence during the hearing. Richard Clarke became a licensed mortgage broker in the State of Florida on December 19, 1973. Frederick Beck has never been licensed under Chapter 494, Florida Statutes. There was admitted into evidence in the course of the hearing, Petitioner's Composite Exhibit "B". The columns that are shown on the pages of the exhibit running horizontally represent in succession: the date, name of the investor, whether or not the investor was a Florida resident, the amount of the mortgage, the amount of commission paid, whether the note was in the file of the Respondent, whether or not the mortgage was in the file of the Respondent, whether or not the title insurance policy on real estate was in the file, the interest rate return for the investor, whether or not the arrangement was for interest only or interest and principal, and the name of the broker/developer. The facts which surrounded the transaction shown in Petitioner's Composite Exhibit "B" are as follows: An investor would be in contact with Peter Van Wie Investments, Inc. concerning the purchase of certain promissory notes and mortgage for land which were being offered by a developer/mortgagor. The investor made out a check to Peter Van Wie Investments, Inc. using the acronym PVWI, Inc. The money for purchasing the promissory note and mortgage was then held in the escrow account until Peter Van Wie Investments, Inc. received the promissory note and mortgage through an intermediary acting in behalf of the developer. The money that had been received from the investor stayed in the escrow account until the receipt of the promissory note and mortgage and then was removed in the entire amount and placed in the Peter Van Wie Investments, Inc. operating account. A percentage of the investment principal would then be deducted from the amount which had been placed in the operating account and the amount remaining after the percentage had been deducted would be forwarded to the intermediary, who would make a further dispersion of the proceeds to the developer. The percentage to be deducted from the investment principal amount was determined by prior negotiations between the intermediary, and Peter Van Wie investments, Inc. These percentage amounts deducted from the investment principal were characterized by the Respondent in the course of the hearing, as being a discount allowed by the intermediary for sales of the promissory notes and mortgages to the Respondent. This characterization by the Respondent is rejected and these percentage amounts are found to be fees or commissions charged by the Respondent, which are in excess of the maximum allowable fees or commissions on transactions, in that they are in excess of the amounts allowed under Section 494.08(4)) Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4), Florida Administrative Code). In connection with other allegations found in the Administrative Complaint, it has been shown that on March 12, 1975, the Respondent received from one Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development. Peter Van Wie, on April 18, 1975, wrote a check to First National Resources in the amount of $11,760.00 to pay for the promissory note and mortgage for Marie W. Neal. On April 24, 1975, the check that had been written to First National Reserves was returned by the Lauderdale Beach Bank, for non-sufficient funds. The Respondent's explanation of the reason for the non-sufficient funds is found in his Answer to the Administrative Complaint in paragraph 6. It is not clear from the record whether Marie W. Neal ever physically received a promissory note and mortgage; however, a promissory note and mortgage deed have been recorded in Lake County, Florida, in her favor. There was no proof that the person, Marie W. Neal, ever asked that the Respondent remit such funds she had paid for the promissory note and mortgage. Furthermore, there is no evidence to the effect that the Respondent failed to deliver to to Marie W. Neal after demand, the said $14,000.00 which came into the Respondent's hands, or which had been placed in the escrow account of the Respondent and from which the non-sufficient funds check had been written to First National Resources. By an exhibit attached to the Answer of the Respondent, it is shown that the $14,000.00 was placed in the escrow account so designated at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, on March 13, 1975.
Recommendation It is RECOMMENDED that the license of the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in Florida, be suspended for a period of one year in view of the violations which have been proven in the course of the hearing. DONE and ENTERED this 15th day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. Terry Rigsby, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Peter Van Wie, President Peter Van Wie Investments, Inc. 16 Winnebago Road Sea Ranch Lakes, Florida B. Paul Pettie 2314 E. Atlantic Boulevard Pompano Beach, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE, Petitioner, vs. Administration Proceeding Number 75-21 DOF-MB PETER VAN WIE INVESTMENTS, INC., Case No. 75-1512 and PETER VAN WIE, PRESIDENT, Respondent. /
Findings Of Fact The Respondent, Vivian Lide, is a licensed real estate broker holding license number 0157178, issued by the Petitioner. The Petitioner is an agency of the State of Florida having jurisdiction over licensure of real estate salesmen, broker-salesmen and brokers and regulation of their licensure status and professional practices and operations. In late 1975, or early 1976, Mrs. Eunice McCallum moved with her husband to the Miami area from Canada. When they arrived in Miami, Mrs. McCallum and her husband were referred to the Respondent by a business associate of Mrs. McCallum's husband to obtain her services in locating a home for them to purchase. They sought the Respondent's services and the Respondent located a house they liked and felt they could afford. They closed the purchase of the house in January, 1976. The McCallums were short of cash and therefore gave a second mortgage and note to the corporation of which the Respondent was a shareholder and officer for the balance of cash they needed to close the sale. After giving the second mortgage they were still $300 short of money needed to close and so Mrs. McCallum borrowed the $300 from the Respondent herself, giving back a note. That note was later satisfied. During the ensuing year, Mrs. McCallum and the Respondent became good friends. Mrs. Lide was the only friend that Mrs. McCallum had in Florida at that time and she often confided in her regarding her marital and financial problems. In later 1977, Mrs. McCallum's financial posture began to go awry and her severe marital problems culminated in her divorce. Mrs. Lide, through her friendship with Mrs. McCallum, was familiar with her financial and marital situation at this time and was a witness on her behalf in the dissolution proceeding. Because of her severe financial problems and as a result of the dissolution of her marriage, Mrs. McCallum felt that she had to sell her house in order to stabilize her financial situation. Accordingly, on December 14, 1977, she entered into an exclusive listing contract with the Respondent to sell the subject residence located at 10400 S.W. 155th Terrace, Miami, Florida. The listing contract enumerates a sale price of $38,000. The Respondent advised Mrs. McCallum to sell her residence because her first and second mortgage payments were both in delinquency and this was the only way she had to recoup her financial deficit. Thirty-eight thousand dollars was determined by Mrs. Lide and agreed by Mrs. McCallum to be the price which would allow her to pay off both mortgages and recoup a small amount of cash in her pocket. On approximately January 10, 1978, a realtor, Jack Rosha, came to Mrs. McCallum's home with Mrs. McCallum and the Respondent present and brought an offer to purchase the property. The evidence is unclear regarding the precise amount of the offer, it was either $39,000.00 or $39,500.00. Rosha represented to the Respondent and Mrs. McCallum that he had received a deposit or binder from his client, but refused to disclose to the Respondent, who represented Mrs. McCallum, whether he had actually placed a binder deposit in his escrow account and Mrs. Lide felt that it was not truly a bona fide offer. In any event, she advised Mrs. McCallum that since it proposed a purchase financed through a Veterans Administration loan, which would require the seller paying a substantial amount of money as "points" (a fee required to be paid by the seller in order for the Veterans Administration to finance the purchase), then the offer would not allow her enough money to retire the two mortgages and have any cash for herself. After this meeting and several phone conversations this offer and a later offer were rejected for this reason and no sales transaction was ever consummated with Jack Rosha's clients. Some weeks later, with Mrs. McCallum's financial difficulties unresolved as yet, Mrs. McCallum and the Respondent entered into an agreement whereby Mrs. Lide, on behalf of her corporation, would forebear requiring payments on the outstanding second mortgage, which was delinquent, and would allow Mrs. McCallum to retain possession of the property in return for which Mrs. McCallum would execute a quit claim deed to Mrs. Lide and would pay her first mortgage payments to Mrs. Lide in order for Mrs. Lide to ascertain that the property and the mortgages encumbering it were secure and that payments thereon were being kept current. As a Part of this agreement, Mrs. Lide assured Mrs. McCallum that she could redeem the property at any time when she paid off the delinquent amounts on the mortgages, thus redeeming the property without paying any additional purchase price fees or profit to Mrs. Lide. With this arrangement in mind, the parties met in late January, 1978, before a notary and executed the required transfer of title document to file with Stockton, Whatley and Davin (the first mortgagee), and Mrs. McCallum executed a quit claim deed in favor of Mrs. Lide. At this meeting, the notary duly notarized the documents and asked Mrs. McCallum if she understood the import of what she was signing and the contents thereof. Mrs. McCallum gave every indication that she understood the nature and purpose of the transaction at that time. Some months later, a dispute arose as to amounts of money which remained due on the first and second mortgages between Mrs. McCallum and Mrs. Lide and Mrs. McCallum demanded an accounting of the amounts paid Mrs. Lide and the amounts remaining due, at which point relations between the two parties became strained, with the ultimate result that Mrs. McCallum filed suit against Mrs. Lide in Circuit Court. The ultimate result of the Circuit Court action was that the quit claim deed was set aside and the judge awarded a judgment in favor of Mrs. Lide for in excess of $11,000.00, representing the amounts found by the judge due to the Respondent from Mrs. McCallum, representing the first and second mortgage payments due up to that point. It was in the course of these proceedings, after the parties had become hostile to each other, that Mrs. Lide instituted the corollary eviction action against Mrs. McCallum. Although Mrs. McCallum represented at the hearing that she signed the quit claim deed without knowing what she was signing and with the content of the deed concealed by another piece of paper so that she could only see the signature line, this testimony is belied by that of Mrs. Lide. Mrs. Lide disclosed the entire nature of the transaction to Mrs. McCallum and the purpose of it, which was to both protect her security interest in the property and to enable Mrs. McCallum to avoid foreclosure, to remain living in the premises and still have the opportunity to redeem the property upon bringing both mortgages current. The testimony and evidence adduced by the Respondent regarding her desire to protect her security interests and still help her former friend, to stabilize her financial situation and still have a place to live, coupled with the testimony which establishes that the notary asked Mrs. McCallum if she understood the content and import of the papers she was signing, obtaining Mrs. McCallum's assent, establishes Mrs. Lide's account of the circumstances surrounding this transaction to be more accurate and worthy of belief. The Hearing Officer finds the testimony of Mrs. McCallum to be too colored by the later hostility that arose between her and the Respondent concerning the accounting for monies owed the Respondent to constitute testimony sufficiently substantial and credible to refute the contrary testimony and evidence adduced by the Respondent.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED: That the Administrative Complaint filed against Vivian Lide be DISMISSED. DONE and ENTERED this 23rd day of March, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 23rd day of March, 1983. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 S.W. Bird Road, 2nd Floor Miami, Florida 33165 Harold Barkas, Esquire 600 Concord Building Miami, Florida 33130 William M. Furlow, Esquire Florida Real Estate Commission Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact Exhibit 2 evidences some 13 arrests of Petitioner, most of which are for the offense of larceny. Although this document is hearsay, Petitioner readily acknowledged that in 1980 and 1984 he was a drug addict and supported his habit by stealing. Exhibit 3 consists of 6 convictions of grand theft and burglary on August 1, 1980, another count in 1984 and one count of attempted grand theft on October 26, 1990. The period between 1980 and 1984 was a period in Petitioner's life immediately following his discharge from the armed forces. On October 26, 1990, Petitioner was adjudicated guilty of grand theft following a plea of nolo contendere to the charge of obtaining or using or attempting to obtain or use the property of another with intent to deprive the owner of the use thereof of personal property of the value of $300 or more. Petitioner testified that in 1990 his 19 year old stepson, who was preparing to enter college, while driving Petitioner's pickup truck, stopped near a parked vehicle and attempted to steal personal property therefrom, but fled when someone observed him. The license number of the pickup was traced to Petitioner. The stepson confessed his actions to Petitioner and when the police arrived, Petitioner, who already had a criminal record that could hardly be blemished further, told the police that he was the driver of the pickup. He was charged with the offense of attempted grand larceny, pled nolo contendere, was adjudicated guilty and was sentenced to 5 years in prison of which he served some 7 months. The stepson graduated from college and is now married, gainfully employed, and raising a family. When submitting his application for licensure, Petitioner further testified that he researched the definition of moral turpitude, spoke to his lawyer and other people regarding his conviction of grand larceny, and was told that the offense did not necessarily constitute an offense involving moral turpitude. Accordingly, Petitioner assumed that he had not been convicted of an offense involving moral turpitude and marked item 5 on his application "No" which asked if he had ever been found guilty of a crime involving fraud, dishonest dealing, or any other act of moral turpitude. Petitioner contends that he told Respondent's employees, with whom he discussed his application for licensure, of his criminal record and was told this was not disqualifying. Accordingly, he spent the money to obtain the required mortgage broker education certificate and to take and pass the examination for mortgage broker license, only to be told after these efforts that he could not qualify for licensure.
Recommendation It is RECOMMENDED that a Final Order be issued denying the application of Stephen J. Matala for a licensure as a mortgage broker. DONE AND ENTERED this 27th day of January 1994 in Tallahassee, Leon County, Florida. K. N. AYERS 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 27th day of January 1994. COPIES FURNISHED: Stephen J. Matala 32414 Marchmont Circle Dade City, Florida 33525 Lisa L. Elwell, Esquire Office of the Comptroller Department of Banking and Finance 1313 Tampa Street, Suite 615 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue The issue presented for decision herein is whether or not the Respondents, Andrew DeGraffenreidt and Circle D. Realty, are guilty of conduct, set forth hereinafter in detail, amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction and have failed to account and deliver rental money all in violation of Subsections 475.25(1)(b)and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Department of Professional Regulation, Division of Real Estate (hereinafter sometimes called the Petitioner), is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute the Administrative Complaints pursuant to Chapters 20, 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, Andrew DeGraffenreidt, is now and was at all times material, a licensed real estate broker having been issued license number 0320099. Respondent, Circle D Realty, Inc., Is now and was at all times material hereto, a corporation licensed as a real estate broker in Florida having been issued license number 0221329. At all times material hereto, Respondent DeGraffenreidt was an officer of, and was the qualifying broker for Respondent, Circle D Realty, Inc. Respondents, in their capacity as a real estate broker, entered into an agreement with Emmett and Louis Anderson, during August, 1984 to handle the rental management of certain residential property owned by the Andersons located at 320 Northwest 20th Avenue, Fort Lauderdale, Florida. The management agreement was by its terms, effective for a period of one year beginning August 21, 1984 and ending August 22, 1985, and continuing from year to year until either party terminated the agreement by giving notice to the other party sixty (60) days prior to the end of any yearly renewal period. The Andersons, as owners, granted Respondents, inter alia, the following authority: Full management and control of said property with authority to collect rents and other monies and securities from tenants, to negotiate leases and renewals thereof, to have minor repairs made and to purchase necessary supplies and to pay all bills and charge same to owner, to serve vacate notices upon tenants and to prosecute in the name of the owner, to hire, discharge and pay from owners' funds any and all employees necessary to the maintenance and operation of the building, and were clothed with such general authority and powers as maybe necessary or expeditious to carry out the spirit and intent of the management agreement with respect to the renting, management and operation of the property. For such services, Respondents would receive 10 percent of gross rentals and other monies. Respondent was authorized to deduct from the owners' funds held by them, any amount due Respondent for any charges incurred on the owners' behalf. At the time when Respondents entered into the management agreement with the Andersons, there were two outstanding mortgages on the subject property in favor of Associates Financial Services Company and California Federal of Florida, Inc. Both mortgages were delinquent at the time Respondents agreed to manage the Andersons' property. When Respondent assumed management of the subject property, the tenants were paying monthly rent of $450.00, an amount insufficient to cover the outstanding mortgages. During some undetermined time during August 1984 and June, 1985, Respondent raised the rent from $450.00 to $600.00, an amount agreed to by the tenants who were desirous of purchasing the property. The management agreement between Respondent and the Andersons was for management of the property and not one for the payment of the mortgages. However, during some unspecified period of time, Mrs. Emmett Anderson, by telephone, requested Respondent's office manager, Mary MacDonald, to mail the mortgage payments of $338.48 and $207.00 to the various mortgage companies. Ms. MacDonald agreed to accept Mrs. Anderson's request and have rent monies mailed directly from Respondent to the two financial institutions without consulting Respondent, DeGraffenreidt. Respondent DeGraffenreidt, upon learning of the verbal agreement with Mrs. Anderson and the office manager, MacDonald, informed Ms. MacDonald that she would have to assume the task of paying and mailing mortgage payments each month and he (DeGraffenreidt) would cash the rental check and give her money orders to be mailed and/or paid to the respective financial institutions. As early as February, 1984, the mortgages were delinquent for the Andersons' property and both institutions were contemplating instituting foreclosure proceedings. (Respondent's Exhibit 2). All written communications between the financial institutions concerning the delinquency were mailed to the Andersons who had relocated to Boston, Georgia. Unbeknownst to Respondent DeGraffenreidt, the mortgage payment to California Federal was increased from $207.00 to $296.00 per month. California Federal refused one payment for $207.00 which had been sent by Respondent after the amount was increased to $296.00. Respondent DeGraffenreidt requested Anderson to advise him of the correct amount of the mortgage payment to be sent to California Federal. Mr. Anderson did not respond to this request. During October and November, 1985, Respondent DeGraffenreidt advised the Andersons that additional monies were needed from them to bring the mortgages current. Respondent DeGraffenreidt again telephoned the Andersons and advised them during early December, 1985 that he needed $1,000.00 to prevent California Federal from foreclosing on the mortgage. At that time, Mr. Anderson requested that the Respondents try to sell the property. Respondent DeGraffenreidt contacted some business associates and investors trying to arrange a sale for the Anderson property. However, no investors were interested based on the asking price and all potential buyers lost interest in the Andersons' property when they learned that the two outstanding mortgages exceeded the marketable value for the property. During June and July, 1986, Respondent DeGraffenreidt attempted to reconcile the Anderson account and determined the exact amount that the Andersons were owed based on some returned payments which Circle D received from the financial institutions and which were placed in an escrow account. Respondent determined this amount to be approximately $557.35, which amount was tendered to the Andersons via a money order during the course of the hearing. Respondents maintained a ledger which correctly showed the monies due and owing to the Andersons based on monies returned by the financial institutions. The Andersons never provided Respondents a written account of any change in the mortgage payments. On or about January, 1986, the Andersons notified the Johnsons (tenants) to pay the rent directly to the Andersons. The Andersons never advised the Respondents that they were terminating the management contract which required written notice from the Andersons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. DONE and RECOMMENDED this 24th day of November, 1987, 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 24th day of November, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Andrew DeGraffenreidt and Circle D. Realty, Inc. 2123 Northwest Sixth Street Ft. Lauderdale, Florida 33311 Harold Huff, Executive Director Department of Professional Regulation, Division of Real Estate 400 West Robisnon Street Post Office Box 1900 Orlando, Florida Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, F.S., Chapters 120.455 and 475, F.S., and the rules promulgated pursuant thereto. Respondent is now and at all times material hereto was a licensed real estate salesman in the State of Florida having been issued License No. 0418629, in accordance with Chapter 475, F.S. The last license issued was as a salesman with a home address of 594 Andrews Street, Ormond Beach, Florida, 32075. From April 8, 1987, until September 11, 1987 he was on inactive status. From September 11, 1987 until at least November, 1987, he was on active status. His license expired March 31, 1988 and has not been renewed. Respondent and the owners (Goldsmiths) of certain property at 49 Sea Island Drive, North Ormond Beach, Florida, entered into an equity sharing agreement on October 1, 1986. Thereafter, Respondent was half owner of the property, and acted as agent for himself and the Goldsmiths for management and rental of the property. Sometime in early 1987, Respondent's former wife contacted Richard M. Dow of Watson Realty Corporation concerning Watson Realty Corporation's assuming management and rental authority over the property. Mr. Dow gave Respondent's wife a packet of information which included several types of material, including but not limited to, a blank standard lease form which had been stamped at the top with the name WATSON REALTY CORPORATION 425 S. YONGE STREET [U.S. 1] ORMOND BEACH, Florida 32074 The name "Watson Realty" was also printed in the body of the lease as agent for the premises, which, like all other crucial information was left blank. No agreement was ever reached by which Watson Realty Corp. or Mr. Dow were to take over management of the premises. On or about April 1, 1987, while still on active license status, the Respondent negotiated a six month lease of the premises at 49 Sea Island Drive, North Ormond Beach, Florida, with Sidney and Edythe Hirsch. By filling out the blank lease form obtained from Watson Realty Corp., Respondent entered into the six-month lease on behalf of himself and the Goldsmiths. He filled out the blank spaces with his name as lessor and the Hirsches as lessees, and crossed out the "Watson Realty Corp." in the body of the lease, substituting his own name therefor. He failed to cross out the stamped Watson Realty Corp. name and address at the top of the page. At the time of the signing of the lease, Respondent advised Mr. Hirsch that he was a licensed real estate agent because he had been taught he must make such disclosures in personal dealings so as not to take advantage of laymen. At formal hearing, he denied ever representing himself as an agent of Watson Realty Corp. or of Mr. Dow. Mr. Hirsch likewise testified that no such representation was made, only that Respondent said something like, "I work with them." Both Respondent and Mr. Hirsch concur that Respondent represented himself as the owner of the property in question without mentioning the Goldsmiths' interest. Hirsch knew and agreed to the scratching through of the Watson corporate name in the body of the contract, and to the substitution of Respondent's name therefor, but no one thought to cross through the stamped Watson name and address at the top of the page. In connection with the lease, Mr. Hirsch gave to the Respondent a $600 security deposit. Respondent shared the rent proceeds with the Goldsmiths even though he did not include their names on the lease or specifically advise the Hirsches of the Goldsmiths' interest in the property. Although the better course of action would have been for Respondent to make a fuller disclosure and to accurately make out the lease agreement with regard to the Goldsmiths' interest, no fraud or intent to defraud either the Goldsmiths or the Hirsches was demonstrated in Respondent's omissions in this regard. At no time alleged herein was Respondent registered as a real estate salesman in the employ of Watson Realty Corp. and at no time was the Respondent employed by Watson Realty Corp. in any capacity. Upon the termination of the lease period, the Hirsches vacated the house and made demands upon the Respondent for the return of their $600 security deposit. The Respondent refused to return the deposit because of substantial damage to the property in three rooms of the house. Hirsches' attorney and Respondent met to attempt to resolve the issue and then had a trial date set. Respondent appeared on the originally scheduled trial date but the case was continued. Respondent separated from his wife and moved to a different address without maintaining contact with the Hirsches' attorney, the court, the Department of Professional Regulation, or the Florida Real Estate Commission (FREC). Over a period of time, he lived at several addresses and eventually moved out of state. Although he was still living in the State of Florida at the time, he did not appear for trial on the security deposit demand, and on January 14, 1988, the Hirsches obtained a civil judgment against Respondent for payment of the $600 security deposit. Respondent had not satisfied the judgment as of the date of the filing of the Administrative Complaint herein and did not do so up through the date of formal hearing. Although Respondent expended a great deal of effort at formal hearing attempting to establish that he never received actual notice of the trial date for the $600 civil damages suit due to his frequent change of addresses during the course of his divorce, that is immaterial because the law presumes notice once suit is filed and properly served as apparently occurred in that case. Unless set aside, the judgment against Respondent was final and Respondent owed Hirsch the money due under it. However, under the circumstances, it is found that Respondent did not fail to pay Hirsch on the judgment through any intent to defraud, but merely through a misunderstanding as to the effect of the judgment. Mr. Hirsch eventually sought and obtained reimbursement of the $600 judgment amount from the FREC client security fund. The fund paid after significant unsuccessful attempts had been made to find Respondent. Respondent also maintained that he did not know about the reimbursement proceedings instituted by FREC until four days before formal hearing and he made offers at formal hearing to pay off this amount. He was not charged in the pending Administrative Complaint in this proceeding with any fraud with regard to his failure to respond to service in the FREC client security fund reimbursement proceeding.
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 the Administrative Complaint. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-6331 The following constitute specific rulings pursuant to Section 120.59(2), F.S., upon the parties' respective Proposed Findings of Fact (PFOF): Petitioner' s PFOF: Petitioner filed no PFOF. Respondent' s PFOF: 1,13,14 Accepted in part; the remainder is rejected as subordinate to the facts as found. 2-5 Rejected as subordinate to the facts as found. 6-12 Rejected as immaterial and as referencing and relying upon matters outside the record as created at formal hearing. 15,16 Rejected in part as subordinate to the facts as found and in part as cumulative and otherwise as mere argument. COPIES FURNISHED: Arthur R. Shell, Jr. Senior Attorney Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Mr. Frederick A. Bentley 402 Daytona Avenue Holly Hill, Florida 32017 Darlene F. Keller, Director Division of Real Estate 400 W. Robinson Street Tallahassee, Florida 32802 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact Respondent was first licensed as a real estate salesperson in Florida in 1997. She has been licensed continuously since that time, although she did not reside or work in Florida for one year in 1998 and 1999. Her license has never been disciplined. Having entered into a contract to purchase, as her personal residence, a townhouse in Palm Beach Gardens for $85,000, Respondent contacted a licensed mortgage broker, Gary Carlson. Respondent and Mr. Carlson had previously worked together, in their respective professions, while employed by a large residential real estate business. Respondent asked Mr. Carlson to find her a mortgage lender, and Mr. Carlson agreed to do so. Mr. Carlson obtained a mortgage loan application from Respondent and submitted it to an institutional mortgage lender that Mr. Carlson represented. At all times in this transaction, Mr. Carlson served as the agent of the mortgage lender, not Respondent. After examining the application and related information on the proposed mortgage loan, the lender directed Mr. Carlson to obtain additional information, including an affidavit to the effect that Respondent had never been known as Lea Taylor Nola and that she had never been married. Respondent disclosed to Mr. Carlson that she had been known as Lea Taylor Nola and she had been married, although she was now divorced. Mr. Carlson assured her that the requirements were unimportant and advised her to sign statements that she did not know Lea Taylor Nola and that she had never been married. Respondent did so. Upon examination of the closing documents, including the unattested statements described in this paragraph, the lender funded the mortgage loan, and Respondent purchased the townhouse. The mortgage loan remains in good standing two years later.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of June, 2004. COPIES FURNISHED: Jauna Watkins, Acting Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 James P. Harwood Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32802-1900 Richard L. Robbins Sutherland, Asbill & Brennan, LLP 999 Peachtree Street, Northeast Atlanta, Georgia 30309-3996
