Findings Of Fact Petitioner is a franchised truck dealer for three manufacturers, including Respondent. The parties entered into a three-year franchise agreement on September 17, 1986, which agreement took effect on September 15, 1986 (Dealer Agreement). Under the Dealer Agreement, Petitioner is assigned a 12-county area that includes Polk County, Florida. In March, 1987, John Drakesmith entered into negotiations with R. N. Heintzelman for the purchase of all of the stock of Petitioner. The negotiations culminated in the execution on July 8, 1988, of an Agreement for Purchase, Sale and Redemption of Stock in Heintzelman's Truck Center, Inc. (Stock Purchase Agreement). The transaction was closed on the same day, and Mr. Drakesmith, as the new owner of Petitioner, assumed the management of Petitioner's business at that time. The Dealer Agreement provides that, to the extent permitted by local law, Respondent may terminate the agreement prior to its expiration date in the event of "[a]ny change... in the ownership or active management of [Petitioner] from that indicated [as described above], without the prior written consent of [Respondent]." The Dealer Agreement provides that, to the extent permitted by local law, Respondent may terminate the agreement prior to its expiration date in the event of "[a]ny actual or attempted assignment of this Agreement or any right or obligation hereunder." Around the end of May, 1987, one of Respondent's regional sales managers learned of the negotiations between Mr. Drakesmith and Mr. Heintzelman. On June 24, 1987, J. L. Brown, Respondent's director of dealer relations, telephoned Mr. Drakesmith at his Ford truck dealership in Cleveland to discuss his impending purchase of the stock of Petitioner. Mr. Drakesmith confirmed that a sale was taking place. Mr. Brown indicated that he and some other representatives of Respondent were going to be in Cleveland and would like to meet Mr. Drakesmith. They tentatively agreed to meet on July 2, 1987. By letter dated June 24, 1987, Mr. Brown confirmed the conversation of the same day. The letter informed Mr. Drakesmith that the Dealer Agreement "is a personal service agreement which can not be transferred or assigned." Accompanying the letter was an application package for a Western Star franchise. On July 2, 1987, Mr. Brown, Dennis Trittin, Respondent's parts and service representative, Mr. Roland Smith, Respondent's regional sales manager for the region including Florida, and Richard Dean, Respondent's Great Lakes regional sales manager, met with Mr. Drakesmith at his Cleveland dealership. Respondent's representatives told Mr. Drakesmith that they were looking forward to his marketing their product more aggressively than Mr. Heintzelman had in the past. They discussed Mr. Drakesmith's possible interest in handling Western Star trucks in his Cleveland dealership. Mr. Brown left Mr. Drakesmith with another copy of the application package. Following the July 2 meeting, Mr. Drakesmith concluded that Respondent was very favorably disposed toward having him as a dealer, although he recognized that he had not yet been formally approved. By letter dated July 8, 1987, Mr. Brown confirmed their July 2 discussion of Mr. Drakesmith's "interest in representing the Western Star product line in Orlando and possibly Cleveland." He added that he was looking forward to receiving the completed documentation "in order to formally complete the application process for the Orlando Dealership." Mr. Drakesmith mailed the completed application, together with some but not all materials, to Respondent on July 13, 1987. The materials were mailed to Respondent at the address shown in the application as that to which the application should be mailed. Respondent had moved from that address over one year earlier. When the application package was returned to Petitioner a few days later as undeliverable, Mr. Drakesmith had it remailed promptly to Respondent's correct address. The remailed package was never received by Respondent or, if received, lost prior to its delivery to Mr. Brown, who never received it. Two or three weeks after the closing, Mr. Smith visited Mr. Drakesmith at Petitioner's dealership. At the time, Mr. Heintzelman and his former general manager, Harry Gates, were both gone. The purpose of the visit was for Mr. Smith and Mr. Drakesmith to get acquainted with each other. Sometime after his visit and before September 15, 1987, Mr. Smith told Mr. Brown by telephone that Mr. Drakesmith had taken over Petitioner and was operating the dealership. Between Mr. Smith's visit in late July and September 15, 1987, Mr. Drakesmith had one or two telephone conversations with Mr. Smith concerning pending orders for trucks that Petitioner had submitted and sales in general. At no time during the visit or telephone calls did Mr. Smith mention the receipt, nonreceipt, or approval of Mr. Drakesmith's application. In August, 1987, Respondent received an expression of interest from a third party for a dealership including the Polk County area. At the time, Respondent had no dealers in Florida except for a dealer in Jacksonville and Petitioner. By letter dated September 15, 1987, Mr. Brown gave Mr. Heintzelman, addressed at Petitioner's dealership, notice of the termination of the Dealer Agreement, effective 90 days from the date of the receipt of the letter. The grounds for the termination were that Petitioner had breached the Dealer Agreement by assigning or attempting to assign the agreement and changing its active management or selling or otherwise changing its ownership without Respondent's prior written consent. The letter also stated that Petitioner had violated Florida statutory law by changing its executive management or ownership or assigning the agreement without first giving Respondent written notice and without providing Respondent with the opportunity and information necessary to evaluate and, if appropriate, object to the new owner, manager, or assignee. Copies of the letter were provided to Mr. Drakesmith and the Florida Department of Highway Safety and Motor Vehicles (Department). Mr. Drakesmith telephoned Mr. Brown on or about September 17 to object to the termination. Mr. Brown explained that he had felt that Mr. Drakesmith had lost interest in the Western Star franchise because he had not bothered to submit his application. When Mr. Drakesmith replied that he had sent it in, Mr. Brown said that he had not received it and suggested that Mr. Drakesmith resubmit it. On September 22, Mr. Drakesmith resubmitted the application materials that he had mailed on July 13 and remailed a few days later. After additional materials were requested and provided, Mr. Brown offered Petitioner a new dealer agreement with the same territory as in the Dealer Agreement, except that Polk County would be replaced by two less profitable counties. By letter dated September 22, 1987, the Department informed Petitioner of its receipt of a copy of the September 15 letter and informed Petitioner of its right to protest the proposed cancellation. The letter called Petitioner's attention to Section 320.641(3), Florida Statutes, which was cited in full. The letter also contained a copy of Sections 320.60-320.70, Florida Statutes. The letter informed Petitioner that it had 90 days from the date of the September 15 letter within which to file with the Department a "verified (notarized) complaint" for a determination of an unfair cancellation of the Dealer Agreement. By letter dated October 23, 1987, Petitioner notified the Department of its protest of the intended cancellation. The letter was signed by Mr. Drakesmith as president of Petitioner. The letter bore only the signature of Mr. Drakesmith, which was not notarized. The letter did not contain any information beneath Mr. Drakesmith's signature and title. As a result of a conversation between Henry C. Noxtine of the Department and Mr. Drakesmith, Mr. Drakesmith learned that his October 23 letter did not meet the verification requirement. Lacking the original letter, Mr. Drakesmith had an employee of Petitioner, Eileen C. Mercer, retype the letter and add in the lower right-hand corner of the second page the notation, "Signed before me this Oct. 29, 1987." She then signed beneath the notation and added her notary's stamp showing that her commission expires August 28, 1990. The record does not reflect whether Ms. Mercer applied her notary's seal to the letter. However, at no time did Ms. Mercer require Mr. Drakesmith to swear or affirm that the information in the October 23 letter was true and correct. Following the above-described additions, the letter was promptly resubmitted to the Department. By letter dated November 24, 1987, the Department transmitted the file to the Division of Administrative Hearings on the sole issue of the propriety of the cancellation of Dealer Agreement. The Department's transmittal letter, a copy of which was sent to and received by Mr. Drakesmith, noted that the Department had received a "verified" complaint from Petitioner. Mr. Drakesmith personally performs the duties of a general manager at Petitioner's dealership. Mr. Drakesmith is of good moral character. At no time has Respondent filed a verified complaint for a determination of Mr. Drakesmith's moral character.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the complaint of Petitioner for lack of subject-matter jurisdiction. ENTERED this 15th day of July, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-5308 Treatment Accorded Petitioner's Findings 1-2. Adopted in substance. Adopted, except that the last sentence is rejected as contrary to the evidence. Adopted, except that the Stock Purchase Agreement was signed on July 8, 1987, and by other parties as well. Adopted in substance. Rejected as irrelevant and legal argument. 7-9. Adopted. 10-11. Adopted in substance. 12-13. Adopted. Adopted, except that reliance is irrelevant. Adopted in substance. 16,18. Adopted. 17. Rejected as irrelevant. Treatment Accorded Respondent's Findings 1,3,4. Adopted. 2. Rejected as irrelevant. Adopted in substance. Rejected as irrelevant. Adopted. 8,14,16. Rejected as irrelevant. 15. Adopted in substance. 17,18. Adopted. 19-21. Rejected as irrelevant. 22-23. Adopted. Adopted in substance. However, the materials that Mr. Drakesmith sent to Respondent and when he sent them is irrelevant. Rejected as recitation of testimony and cumulative. Adopted, except that second sentence is rejected as irrelevant. Rejected as irrelevant. 28,29. Adopted in substance. 30-32. Rejected as irrelevant. Adopted. Adopted in substance. 35-37. Rejected as irrelevant. Adopted, except that last 17 words are rejected as irrelevant. Adopted, except that the cause offered for the Issuance of the termination notice is against the greater weight of the evidence. 40-44. Adopted. Rejected as irrelevant. Adopted in substance. Rejected as unclear. Adopted, except that the last 16 words are rejected as legal argument. 49-51. Adopted in substance. 52-57. Rejected as irrelevant. COPIES FURNISHED: Joseph E. Foster, Esquire Akerman, Senterfitt & Eidson Post Office Box 231 Orlando, Florida 32802 Dean Bunch, Esquire Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechlser, P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 Enoch John Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issues in this case are whether the Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Division of Real Estate is the state agency responsible for the regulation of the real estate sales profession in Florida, including licensure of real estate sales associates and enforcement of the statutory provisions within its charge. Ms. Friels is a real estate sales associate who first obtained her license in 2005. Ms. Friels has never had any prior disciplinary action taken against her. Ms. Friels received a renewal notice from the Department of Business and Professional Regulation (the Department), notifying her that her sales associate license was due to expire on March 31, 2009. The notice touted in bold print that the "Department Provides Instant Online Renewal," while also offering a Renewal Notice card to detach and mail in to the Department. The Renewal card option required nothing to be filled in by the licensee unless an address update were necessary (in which case a box could be checked and the address updated on the back of the card), or unless the licensee wanted to opt for inactive status, which could be done by checking a different box. Otherwise, the card could simply be sent in with payment of the $85.00 renewal fee. The card included the following statement in small print: IMPORTANT: SUBMITTING YOUR RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Ms. Friels had been undergoing a period of great personal challenges and stress in the two-year period leading up to the licensure expiration date and nearly missed the renewal deadline. On the day before her license was to expire, she utilized the "Instant Online Renewal" option after contacting a Department customer representative to make sure that her online renewal payment would be credited immediately so that it would be timely before the March 31, 2009, expiration date. As alleged in the Administrative Complaint, "[o]n . . . March 30, 2009 Respondent paid the renewal fee of $85.00 to renew her real estate license." The Department receipt showed the online payment of the $85.00 fee on March 30, 2009, for the renewal of real estate sales associate License No. SL3141119 held by Marsha Evans Friels. At the time Ms. Friels processed her online license renewal, she had not completed the 14 hours of continuing education she was required to complete during the two-year licensure period ending on March 30, 2009, but Ms. Friels did not realize at that time that she had not complied with the continuing education requirements. Ms. Friels explained that although she was generally aware of the continuing education requirement for licensure renewal, the reason she did not realize that she had not taken the required coursework during this particular two-year period was because she was coping with a series of tragic, personal challenges. The circumstances were compelling, as she explained: In May 2007, Ms. Friels' older sister died of breast cancer; then, in October 2007, Ms. Friels' father died, and Ms. Friels assumed the responsibilities for arranging for his funeral and then probating his estate; and finally, Ms. Friels' youngest sister, who was diagnosed with paranoid schizophrenia and had lived with her father, was left without care, and the responsibilities for caring for her sister and making decisions about her placement fell on Ms. Friels' shoulders. While these circumstances do not excuse a failure to comply with the continuing education requirements during the two-year period, the totality of the circumstances make the oversight understandable and mitigate against Ms. Friels' culpability. Ms. Friels was under the impression that having accessed the Department's "Instant Online Renewal" and successfully remitted payment of the renewal fee in time, she had done all that was needed to renew her license. She received no notice to the contrary. Apparently, however, at some point after Ms. Friels thought she had successfully renewed her license via the Department's Instant Online Renewal service, the Department's records re-characterized the status of Ms. Friels' license as involuntarily inactive, effective on March 31, 2009, "due to non[-]renewal of her real estate sales associate license." Neither Ms. Friels, nor the licensed broker with whom Ms. Friels was associated, received notice that her real estate sales associate license had been changed to inactive status, that Ms. Friels had not satisfied the continuing education requirements at license renewal, or that her "Instant Online Renewal" and payment were ineffective to renew her license. Ms. Friels presented evidence of the Department's practice to issue a Notice of Deficiency or a Continuing Education Deficiency letter, when a real estate sales associate renews a license without having completed the required continuing education hours. No evidence was offered to explain why this practice would not have applied in this case or why no such notice was given to Ms. Friels. Operating under the impression that she had successfully renewed her license and receiving no notice to the contrary, on one occasion, on approximately June 1, 2009, Ms. Friels participated as a real estate sales associate working on a real estate sales contract under the supervision of Ms. Williams, the licensed broker with whom Ms. Friels was associated, who remained actively involved in the transaction. Mr. Brissenden is a real estate appraiser who was asked to perform an appraisal on the property that was the subject of the same contract, which is how he came to learn that Ms. Friels was operating as a sales associate. Mr. Brissenden testified that he happened to be online on the Department's licensing portal checking on some other things when he looked up Ms. Friels' license out of curiosity. He saw that her license was shown to be inactive, and, so, he filed a complaint. Ms. Friels first learned that she had not completed the required continuing education hours in the two-year period before renewal when she received a letter advising her that she was being investigated for operating as a sales associate without an active license. Immediately upon learning that she had a continuing education deficiency, Ms. Friels took the 14-hour continuing education course and successfully completed the required hours. This course included the "Real Estate Core Law" component required by Florida Administrative Code Rule 61J2-3.009(2)(a). The course material, which according to rule, must be submitted to the Florida Real Estate Commission for review and approval, included the following: In the event a license is renewed without the required continuing education course having been completed, the licensee will be sent a deficiency letter. This letter will inform the licensee that the required continuing education was not completed prior to renewal. Ms. Friels' license was reinstated to "active" status on October 16, 2009, following her completion of the 14-hour course credited to her prior renewal cycle. Ms. Friels cooperated with the investigation and submitted a letter with supporting documentation explaining that she did not realize she had not completed the continuing education course during the prior two years and detailing her personal circumstances that led to her oversight. At the completion of the investigation, the investigator contacted Ms. Friels to deliver a Uniform Disciplinary Citation, on December 11, 2009. By this document, the investigator sets forth her determination that there was probable cause to believe Ms. Friels had violated Subsection 475.42(1)(b), Florida Statutes, and that the Department had set the penalty at a $500.00 fine (plus no additional amount for costs). Ms. Friels had the choice of accepting the citation, in which case it would become a final order, or disputing the citation, in which case the charges would be prosecuted as a disciplinary action pursuant to Section 455.225, Florida Statutes. Ms. Friels testified that while she accepted responsibility for not completing the required continuing education and was willing to resolve this matter by paying the $500 fine in December 2009, she was unwilling to accept the citation's charge of violating Subsection 475.42(1)(b), Florida Statutes. That subsection establishes the following as a violation: A person licensed as a sales associate may not operate as a broker or operate as a sales associate for any person not registered as her or his employer. Ms. Friels perceived this charge as more serious, in effect, charging her with operating outside the scope of her sales associate license by operating in a broker capacity. Throughout this proceeding, Ms. Friels remained sensitive to the suggestion that she had operated as more than a real estate sales associate and went to great pains to establish that she did not exceed the bounds of a licensed real estate sales associate and that she was acting under the supervision of the licensed broker with whom she was associated. The subsequently-issued Administrative Complaint charged Ms. Friels with a violation of Subsection 475.42(1)(a), Florida Statutes, not Subsection 475.42(1)(b), Florida Statutes, as charged in the Uniform Disciplinary Citation. By this time, however, when Ms. Friels attempted to resolve the dispute, the Division of Real Estate would not agree to the penalty originally proposed in the Citation (with the incorrect statutory charge), but instead proposed additional terms, including payment of $521.40 in investigation costs on top of the $500 fine, plus attendance at two meetings of the Florida Real Estate Commission. Ms. Friels objected to the increased financial consequences since in her view, the reason why the dispute was not resolved by the citation was because the wrong statutory violation was charged. Before the evidentiary hearing, counsel for the Division of Real Estate acknowledged that this case involves, at most, a "minor violation of licensing law." After the evidentiary portion of the hearing, counsel reiterated the Division's position that "this is a minor licensing violation and we're looking for a very minor penalty." Inexplicably, the Proposed Recommended Order submitted by the Petitioner proposed a significantly elevated recommended penalty. The Petitioner proposed an increased fine of $1,000, plus a 30-day suspension, plus costs of investigation, plus "fees pursuant to Section 455.227(3), Florida Statutes,"3 despite assurances at the close of the hearing that the Petitioner was only looking for a "very minor penalty" consistent with what had been previously offered. The appropriate penalty for a violation of licensing law cannot be determined without first reviewing the record evidence on mitigating and aggravating circumstances in accordance with Florida Administrative Code Rule 61J2-24.001(4). Here, no aggravating circumstances were established or even argued while there are multiple mitigating circumstances. There was no evidence of any harm to the consumers or public as a result of Ms. Friels' oversight in not completing her continuing education by her license renewal date or as a result of her participating as a real estate sales associate in a transaction in June 2009. The fact that there was only one count in the Administrative Complaint is a mitigating circumstance to be considered. Likewise, the fact that Ms. Friels has no disciplinary history is another mitigating circumstance weighing in favor of leniency below the normal penalty ranges established in rule. Consideration of the financial hardship to the Respondent as a result of imposition of a fine or suspension of a license, adds to the weight of mitigating circumstances. Ms. Friels testified to the hardship she has endured as a result of personal circumstances beyond her control. Ms. Friels was forthright and sincere in accepting responsibility for her oversight and acted immediately to rectify the continuing education deficiency as soon as she received notice of it. Under the circumstances, imposition of a fine or suspension of her license would result in unnecessary financial hardship. Finally, under the catch-all language in Florida Administrative Code Rule 61J2-24.001(4)(b) ("mitigating circumstances may include, but are not limited to . . ."), consideration must be given to the Respondent's compelling personal circumstances that make her oversight understandable and mitigate further against imposing a penalty in the normal range. The circumstances here were far from normal, and imposing a penalty as if they were normal would be unduly harsh.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding that the Respondent, Marsha Evans Friels, violated Subsection 475.42(1)(a), Florida Statutes (and, thereby, Subsection 475.25(1)(e), Florida Statutes); issuing a reprimand as the sole penalty; and waiving the permissive assessment of costs allowed by Subsection 455.227(3)(a), Florida Statutes. DONE AND ENTERED this 24th day of September, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2010.
Findings Of Fact The Respondent has at all times material to this matter been licensed by the Board of Real Estate as a real estate broker-salesman. For approximately the past year, she has been employed as a broker-salesman with Century 21 Realtors in Fort Walton Beach. Previously, for a period of approximately 18 months, she was employed with Kruse Realty, Fort Walton Beach, Florida, in the same capacity. During November, 1979, Mr. and Mrs. L. C. Lyons visited Kruse Realty. The Lyonses were seeking to purchase a lot upon which they could build a house. They were introduced to the Respondent. The Lyonses advised the Respondent that they had been approved for a loan by the Farmers Home Loan Administration (FHLA) for the financing of construction. They advised the Respondent that they would be able to spend only $6,000 for a lot and that the property would need to qualify for FHLA financing. The Respondent told the Lyonses that she had lots available that had been approved for FHLA loans. One of them was located in Wynn Haven Beach, and the other was owned by a Mr. Jack Piediscalzi. The Lyonses visited the Wynn Haven Beach property and decided to purchase a lot. This resulted in a contract for sale being signed by the Lyonses. The Lyonses specifically requested that the contract be made contingent upon their securing financing from FHLA. After the Lyonses executed the contract, Mrs. Lyons' father visited the lot. He observed some low-lying areas that he felt would cause building problems. Mrs. Lyons' father also visited the Piediscalzi property and urged that it would provide a better building site. The Lyonses decided to follow this advice, and they asked the Respondent if they could cancel their contract to purchase the Wynn Haven Beach property, and purchase one of the Piediscaizi lots. The Respondent requested that the Wynn Haven Beach property owner cancel the contract, which he did. Thereafter, the Lyonses entered into a contract to purchase a lot from Mr. Piediscalzi. The contract was executed on November 19, 1973. The Lyonses advised Respondent that they would pay for the lot with cash, but that they would be financing home construction through the FHLA loan. They inquired as to whether the contract should be made contingent upon FHLA approval. The Respondent advised the Lyonses that such a contingency clause would not be necessary because FHLA had already approved loans for construction of houses on the Piediscalzi lots. The day after they executed the contract to purchase one of the Piediscalzi lots, the Lyonses presented a loan approval package to FHLA. The FHLA representative immediately advised the Lyonses that the property would not qualify for FHLA financing because the road on which the lot fronted was merely an easement, not a county road as required by FHLA regulations. The FHLA representative advised the Lyonses that they were the first people to present a proposal for FHLA financing of one of the Piediscalzi lots. Mrs. Lyons called the Respondent later that same day. The Respondent's response was, "Well honey, what are you going to do with two lots?" The Respondent indicated that she would speak to her employer. Later, Mrs. Lyons spoke to Mr. Chamberlin, a real estate salesman who is also employed at Kruse Realty. Mr. Chamberlin advised that FHLA financing could be secured and that he would call her back within three days. He did not call her back in three days, and Mrs. Lyons contacted him. He advised that the property had not been approved, but that he would take steps to accomplish it. Mrs. Lyons also spoke to Mr. Kruse, the owner of Kruse Realty. Time was critical to the Lyonses because their FHLA loan package needed to be approved before available loan funds were distributed to other qualified purchasers. The steps that would need to be taken to secure FHLA financing were never accomplished, and the Lyonses did not secure the financing that they were seeking. Kruse Realty did not offer to compensate the Lyonses in any manner. Mrs. Lyons ultimately turned the property over to her father, who sold it. Mrs. Lyons filed a complaint with the Board of Real Estate, and with the Fort Walton Beach Board of Realtors. Mr. Chamberlin from Kruse Realty contacted Jack Piediscalzi sometime prior to November, 1979, about the prospects of Mr. Piediscalzi subdividing and selling his property. Mr. Piediscalzi decided that he would like to sell the property in parcels, and he signed an exclusive contract with Kruse Realty to handle the sales. Mr. Piediscalzi left details of dividing the property to Kruse Realty. Kruse Realty decided to sell the property through "meets and bounds sales" rather than by subdividing the property into lots as required by local planning and zoning regulations. A road was constructed through the property, and efforts were made to dedicate the road to Okaloosa County. The County did not, however, accept the road. Mr. Piediscalzi dealt primarily with Mr. Chamberlin at Kruse Realty. He did not deal directly with the Respondent. The Respondent was advised by Mr. Chamberlin and Mr. Kruse that they had talked to personnel at FHLA and that the property would qualify for FHLA loans. The Respondent saw two building permits that had been issued for lots on the property. The Respondent inquired of Mr. Kruse whether the property met local subdivision requirements, but she was assured that because it was being sold by "meets and bounds," it was not within subdivision requirements. The Piediscalzi-Lyons transaction was the first transaction in which the Respondent had dealt with an FHLA loan. The Respondent did not know specific FHLA requirements. She was not aware that the road through the Piediscalzi property had not been dedicated to Okaloosa County, nor that such dedication was required. The Respondent ceased dealing with the Lyonses after they advised her that FHLA had not approved their loan. Thereafter, the Lyonses dealt with Mr. Chamberlin and Mr. Kruse. The Respondent sought to cancel the Lyons-Piediscalzi contract, and she returned the $240 commission that she had received for the sale to Kruse Realty in January, 1980. She sought to get Kruse Realty to buy the property back, and she was willing to by up to one-third of it. Her employer was not, however, willing to purchase the property, nor to rescind the contract or refund commissions.
The Issue The issue in this proceeding is whether Petitioner's loss of a real estate broker's license by a stipulated disciplinary suspension in 1983 is a proper bar to his mortgage broker application as principal broker for Center State Mortgage Company.
Findings Of Fact Terry E Christensen ("Christensen") was first licensed as a mortgage solicitor in 1983, under Chapter 494, Florida Statutes. In 1984, he obtained his mortgage broker's license. The licenses were renewed in 1984 and 1985. His employer was Cenflorida Mortgage Corporation in Altamonte Springs, Florida, where he served as principal broker and vice president. (Testimony of Christensen, Petitioner's Exhibit #1.) Christensen left Cenflorida Mortgage Corporation in April 1986, and started his own company, Center State Mortgage Corporation in Longwood, Florida. He immediately filed his application with the Department of Banking and Finance ("Department") for registration as principal mortgage broker with the new company. That application was denied by letter dated May 13, 1986, for violations of Section 494.05(1)(h) and (k), Florida Statutes. The letter provides, in pertinent part: The application is denied by the determi- nation of the Division of Finance that Section 494.05(1)(h) and (k is [sic] being violated. Section 494.05(1)(h) of the Mortgage Brokerage Act states that conduct of an applicant would be cause for denial of a license. Section 494.05(1)(k) states that a licensee may be denied a license if they currently have a real estate broker or salesman license under suspension. In your particular case, our records indicate that your real estate license has been suspended for a five year period, starting June 21, 1983. (Testimony of Christensen, Petitioner's Exhibits #1 and #2.) On June 29, 1983, the Florida Real Estate Commission suspended Christensen's real estate broker's license for a period of five years. Christensen first told the Department about his real estate broker's license suspension when he applied for license as a mortgage solicitor in 1983. (Testimony of Christensen.) Subsection 494.05(1)(k), Florida Statutes, was added to the statutes effective October 1, 1985. (Chapter 85-271, Laws of Florida.) Around the same time the new law took effect, the Department commenced revocation proceedings against Christensen. By its notice docketed on September 27, 1985, and its amended notice dated March 4, 1986, the Department informed Christensen that it intended to suspend or revoke his mortgage broker's license under Chapter 494 on the basis of his prior activities as a real estate broker. Those prior activities were the subject of a civil consent judgement against Christensen and his realty company and resulted in the stipulated suspension of his real estate broker's license addressed above. The Department's administrative proceeding #85-28-DOF was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 86-0328. (Petitioner's Exhibits #3 and #4.) The parties stipulated to the facts, and on June 10, 1986, DOAH Hearing Officer, J. Lawrence Johnston, issued his Recommended Order recommending dismissal of the complaint. The Recommended Order provides: * * * 3. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case. * * * (Petitioner's Exhibit #5.) The Department adopted the Recommended Order in its entirety and dismissed the case. (Petitioner's Exhibit #7.) From 1983 until mid-1986, Christensen processed approximately five hundred mortgage loan applications with an approximate value of $50,000,000.00. To his knowledge, no complaints have ever been made to the Department regarding Christensen's activities as a mortgage solicitor or broker. (Testimony of Christensen, Petitioner's Exhibit #6.)
Recommendation Based on the foregoing, it is recommended that a Final Order be issued granting the mortgage broker's license to Terry Christensen. DONE and ORDERED this 7th day of November, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 \ Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2498 The following constitute my specific rulings on the proposed findings of facts submitted by the parties. PETITIONER'S FINDINGS OF FACT 1-3. Adopted in Paragraph #1. 4-5. Adopted in Paragraph #5. Rejected as irrelevant. Adopted in Paragraph #3. 8-12. Adopted in Paragraph #4. 13. Rejected as unnecessary. 14-15. Adopted in Paragraph #4. 16-18. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT 1. Adopted in Paragraph #1. 2-4. Adopted in Paragraph #4. 5. Rejected as unnecessary. 6-8. Adopted in Paragraph #4. 9. Rejected as immaterial. 10-11. Adopted in Paragraph #2. 12-16. Rejected as immaterial. 17. Adopted, as to the first sentence, in paragraphs #3 and #4; otherwise, rejected as immaterial. COPIES FURNISHED: Gorham Rutter, Jr., Esquire Suite D 338 North Magnolia Avenue Orlando, Florida 32801 Robert Good, Esquire Suite 501 400 West Robinson Street Orlando, Florida 32801 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue Whether the Florida Fish and Wildlife Conservation Commission’s (“Respondent” or “FWC”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”), submitted a nonresponsive reply to FWC’s Invitation to Negotiate (“ITN”) No. 770-0235 is contrary to the Commission’s governing statutes, the agency’s rules or policies, or the solicitation specifications; and, if so, whether it was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the pre-hearing stipulation. ITN No. 770-0235 and Background FWC is a state agency that seeks office space to be occupied by personnel from six of FWC’s divisions. FWC currently leases office space from TCC, which expires in October 2019. On July 19, 2017, FWC issued ITN No. 770-0235, seeking vendors that could provide 53,000 square feet of office space for lease. FWC anticipates occupying the space by November 1, 2019. Between August 15, 2017, and November 2, 2017, FWC issued four addenda to the ITN, which contained amendments, modifications, and explanations to the ITN. There were no bidders that challenged the terms, conditions, or specifications contained in the ITN or its amendments. TCC and NLH were two of the potential lessors that submitted replies in response to the ITN. FWC seeks to lease either a building that already exists or a non-existing building to be constructed in the future. The ITN describes the proposals requested as follows: Competitive proposals may be submitted for consideration under this Invitation to Negotiate (ITN) for the lease of office space in either an existing building or a non- existing (build-to-suit/turnkey) building. NOTE: All buildings must comply with the Americans with Disabilities Act (ADA) as stated in Attachment A, Agency Specifications, Section 6.D., page 32. OPTION 1 - an ‘existing’ building: To be considered an ‘existing’ building, the facility offered must be enclosed with a roof system and exterior walls must be in place at the time of the submittal of the Reply. OPTION 2 - a ‘non-existing’ building: Offeror agrees to construct a building as a ‘build-to-suit’ (turnkey) for lease to FWC. Each applicant that submitted a proposal in response to the ITN was required to meet the specification in Attachment A of the ITN. The ITN provides as follows: FWC is seeking detailed and competitive proposals to provide built-out office facilities and related infrastructure for the occupancy by FWC. As relates to any space that is required to be built-out pursuant to this Invitation to Negotiate in accordance with this Invitation to Negotiate, see Attachment ‘A’ which includes the FWC Specifications detailing the build-out requirements. The specifications in Attachment A provided the basic requirements for the potential leased space such that proposals offering existing or non-existing building may be compared and evaluated together. The ITN included certain provisions to clarify the rights contemplated by the ITN, and included the following disclaimer: This ITN is an invitation to negotiate and is for discussion purposes only. It is not an offer, contract or agreement of any kind. Neither FWC nor the Offeror/Lessor shall have any legal rights or obligations whatsoever between them and neither shall take any action or fail to take any action in reliance upon any part of these discussions until the proposed transaction and a definitive written lease agreement is approved in writing by FWC. This ITN shall not be considered an offer to lease. The terms of any transaction, if consummated, shall not be final nor binding on either party until a Lease Agreement is executed by all parties. This ITN may be modified or withdrawn by FWC at any time. The ITN also included a provision expressly reserving FWC’s “right to negotiate with all responsive and responsible Offerors, serially or concurrently, to determine the best-suited solution.” The term “Offeror” was defined by the ITN to mean “the individual submitting a Reply to this Invitation to Negotiate, such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive lessors could be invited to negotiations. While TCC and NLH were two of the potential lessors that submitted replies in response to the ITN, the bidders submitted different proposals. TCC submitted a proposal for an existing building, and NLH submitted a proposal for a non- existing building. During an initial review of all replies, FWC determined TCC’s reply to be nonresponsive based on TCC’s response to ITN section IV.G (Tenant Improvements) and a statement titled “Additional Response” that TCC submitted with its reply. As a result, FWC did not evaluate or score TCC’s reply. After TCC’s reply was declared nonresponsive, there were no further negotiations with TCC regarding the ITN. NLH’s reply passed the initial responsiveness review and was then evaluated and scored by FWC. FWC ultimately issued an intended award of the contract to NLH after conducting negotiations. Tenant-Improvement Cap The ITN prohibited vendors from proposing conditional or contingent lease rates that included a tenant-improvement cap, or allowance. A tenant-improvement cap reflects the maximum amount the landlord is willing to spend to make improvements to leased space. Mr. Hakimi asserted that the tenant-improvement cap would be an incentive to FWC to enter a lease. However, the tenant-improvement cap would also place a limit on improvements. According to ITN section IV.E, any reply offering a lease rate with a tenant-improvement cap would be deemed nonresponsive: FULL SERVICE (GROSS) RENTAL RATE The Offeror shall provide FWC with a Full Service (gross) lease structure. Therefore, the lease rate must include base rent, taxes, all operating expenses (including, but not limited to, janitorial services and supplies, utilities, water, insurance, interior and exterior maintenance, recycling services, garbage disposal, pest control, security system installation and maintenance, and any amortization of required tenant improvements to the proposed space). There shall be no pass through of additional expenses . . . . Offerors must provide their best, firm lease rates. Lease rates that are contingent, involve a basic rate plus “cap” or “range” for such things as tenant improvements will be deemed nonresponsive. The ITN also provided, in section IV.G, that any current lessor must meet all ITN requirements, including those set forth in ITN Attachment A: TENANT IMPROVEMENTS The State requires a “turn-key” build-out by the Landlord. Therefore, Offeror shall assume all cost risks associated with delivery in accordance with the required specifications detailed in this ITN, including Attachment A (see pages 28-45). Additionally, replies for space which is currently under lease with, or occupancy by, the Florida Fish and Wildlife Conservation Commission does not exclude the Offeror from meeting the requirements specified in this ITN document. Offeror agrees to provide “turn-key” build-out/improvements in accordance with the specifications detailed in this ITN. (use an X to mark one of the following): YES or NO TCC responded “NO” to the statement “Offeror agrees to provide ‘turn-key’ build-out/improvements in accordance with the specifications detailed in this ITN.” Additional Response Not only did TCC include a barred tenant-improvement cap, but TCC also attached an addendum to its proposal, which provided the following: The reality is that as the current Landlord, it would be impossible to ask FFWCC to move out of its existing office space in order to meet the requested Agency Specifications in Attachment A. If this condition makes our response to the Invitation to Negotiate (ITN) “non-responsive”, we stand willing to continue further negotiations with FFWCC. There was no provision in the ITN for additional responses outside what was requested in the ITN. More importantly, the addendum indicated TCC could not comply with the ITN, unless certain conditions were met. Mr. Hakimi confirmed the effect of what was written in the addendum when he testified that TCC is unable to meet Attachment A’s specifications because it presently has a tenant in place (i.e., FWC) that prevents it from constructing the building improvements necessary to comply with ITN Attachment A. Proof of Ownership of Property The ITN also provided that to be responsive, each lessor was required to submit certain documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non- Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. This requirement applies to: The real property (land); The proposed building(s) (or structure(s); The proposed parking area(s). Control of parking includes the area(s) of ingress and egress to both the real property and the building(s). The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment K. TCC’s certification was executed by TCC president, Lyda Hakimi. However, TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property. The evidence offered at hearing of the property’s ownership contained in TCC’s reply was a deed showing DRA CRT Tallahassee Center, LLC to be the property owner. Respondent argued that although TCC owns DRA CRT Tallahassee Center, LLC, the two are different legal entities. Because these were two different legal entities, TCC was required to provide a copy of Attachment K to its response to be deemed responsive. Broker Commission The ITN required lessors to agree to execute a broker- commission agreement, which was attached to the ITN as Attachment J: Offeror understands FWC is utilizing the services of a Tenant Broker representative for this lease space requirement and the successful Offeror shall execute a Commission Agreement, in coordination with FWC’s Tenant Broker representative, within fifteen (15) business days of notification of Award. Offeror agrees and acknowledges that a Tenant Broker Commission Agreement is a requirement and the successful Offeror shall be required to execute a Commission Agreement as described above. (use an X to mark one of the following): YES or NO The ITN included a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 2.50 percent to 3.50 percent. TCC conditioned its reply by agreeing to pay a two-percent broker commission, which is inconsistent with the commission schedule. By offering a lower commission rate, TCC could save money. TCC would then have a competitive advantage over other bidders. TCC’S Bid was Nonresponsive Based upon the foregoing, TCC’s bid submission added a tenant-improvement cap, failed to comply with the broker commission rate, failed to provide supporting documents to demonstrate proof of property ownership, and added additional conditions regarding compliance with the ITN requirements. The information requested and terms of the ITN were required for TCC’s bid to be responsive. TCC did not file a challenge to the specifications or any of the requirements of the ITN. It is now too late for such a challenge. TCC’s inclusion of a tenant-improvement allowance limits the amount that would pay for improvements. The lower broker commission increases the profit advantage for TCC more than for other bidders, which would be an unfair advantage over other bidders. TCC’s failure to comply with the terms of the ITN and failure to provide the required attachment to show proof of ownership were not minor irregularities, which FWC could waive. Therefore, FWC properly determined that TCC’s bid submission was nonresponsive. Standing TCC submitted a bid proposal that did not conform to the requirements of the ITN and it seeks relief that includes setting aside FWC’s rejection of its proposal. Therefore, TCC has standing to bring this protest. If it is determined that TCC was nonresponsive, NLH has standing to the extent the procurement process could be deemed contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wildlife Conservation Commission enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2018.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Frederick L. Roberts (Respondent) was a licensed Florida mortgage broker, holding license number MB 316324569. In November 1993, a friend of the Respondent, Alan Petzold, introduced Tami Aaronson to him. Ms. Aaronson owned property in Maryland and was interested in securing a mortgage on the Maryland property to provide funding for a Florida home for herself and her son, Jarrett. According to Ms. Aaronson, Mr. Petzold is the father of a minor son, Jarrett Aaronson. The Respondent believed that such was the case at the time he met the family. The Respondent met several times with Ms. Aaronson. The Respondent gave a “Flagship Mortgage Company” business car to Ms. Aaronson. The business card had the Respondent’s name printed on it. The Respondent had been briefly employed by Flagship Mortgage Company, but apparently was not so employed at the time he met Ms. Aaronson. Frederick L. Roberts (Respondent) received check number 0170, dated November 22, 1993, from Tami Aaronson as “Custodian for Jarrett Aaronson” in the amount of three thousand dollars. The notation on the check states that it is for “refinancing.” Ms. Aaronson believed the check was payment for services the Respondent would render in obtaining refinancing of the Maryland property. There was no written agreement between the Respondent and Ms. Aaronson, or between the Respondent and Mr. Petzold. The Respondent completed no written documentation related to the Aaronson transaction. The Respondent did not place the Aaronson deposit into a segregated escrow account. The Respondent did not record the Aaronson deposit into an escrow transaction journal. During the period he held the Aaronson funds, the Respondent worked on unrelated business, and traveled to China for about thirty days. The Respondent performed no work on behalf of Ms. Aaronson, Mr. Petzold, or Jarrett Aaronson. There is no evidence that the Respondent intended to perform any work on behalf of Aaronson/Petzold. The Respondent asserted that he asked for a three thousand dollar “deposit” as a means of discouraging the couple from asking for his assistance. The assertion is not credible. The Respondent asserts that the three thousand dollars he received from Ms. Aaronson was a deposit against travel expenses he would incur during his examination of the property in Maryland. The assertion is not supported by credible evidence. In the spring of 1994, the Respondent received a telephone call from Ms. Aaronson. The Respondent asserts that he believed Ms. Aaronson to have called him from a mental hospital. For whatever reason, at that time he determined that he no longer wanted to be involved in the Aaronson/Petzold situation. Shortly after receiving the Aaronson phone call in spring 1994, the Respondent also received a call from a Department of Banking and Finance investigator, apparently looking into a complaint received from Ms. Aaronson. The Respondent thereafter contacted Mr. Petzold and made arrangements to return the funds to him. According to a notarized statement dated May 9, 1994, the Respondent returned the three thousand dollars to Jarrett R. Aaronson and Alan C. Petzold. The Respondent testified that the money had been returned on May 8, 1994 to Mr. Petzold. The Respondent offered into evidence a document dated May 8, 1994, purporting to be a receipt received from Mr. Petzold for return of the funds. The signature is not notarized. The Respondent did not return the Aaronson deposit to Tami Aaronson. There is no evidence that Ms. Aaronson authorized the return of the three thousand dollars to Mr. Petzold. There is no evidence that Ms. Aaronson authorized the return of funds to Jarrett. Ms. Aaronson has not received any part of the three thousand dollars allegedly refunded. There is no evidence that the funds have been redeposited into the minor child’s custodial account. The Respondent asserts that he was not acting as a mortgage broker and was merely investigating the property to determine whether the Aaronson property could be used as a source of funds for the purchase of Florida property. The Respondent asserts that had a refinancing situation arisen, he would have referred Ms. Aaronson to another licensed person who would assist in the actual refinancing. The assertion is not supported by credible evidence. The Respondent asserts that in the spring of 1994 he had reason to believe that Ms. Aaronson had been hospitalized in a mental facility, and therefore he returned the funds to Mr. Petzold. The rationale for the failure to return the funds to the appropriate party is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a Final Order suspending the mortgage broker license held by Frederick L. Roberts until the following conditions are met: Payment to Tami Aaronson of $3,000 plus appropriate interest calculated from November 22, 1993. Payment of an administrative fine in the amount of $5,000. After compliance with the above conditions, the license suspension shall be lifted, and a two-year probationary period shall begin RECOMMENDED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of October, 1997. COPIES FURNISHED: Clyde C. Caillouet, Esquire Department of Banking and Finance 4900 Bayou Boulevard, Suite 103 Pensacola, Florida 32503 Michael W. Carlson, Esquire Carlton Fields Ward Emmanuel Smith & Cutler, P.A. 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R.T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April.
Findings Of Fact The Respondent, Stephen A. McLeod, is holds a license that makes him eligible to act both as a real estate broker and as a real estate salesperson in the State of Florida. Between February, 1989, and March 12, 1990, the Respondent operated as the broker for McLeod Realty Group, Inc., a/k/a MRG, Inc. (MRG), a real estate brokerage of which he was the sole owner and corporate officer. At some point before March 12, 1990, the Respondent and MRG agreed to locate a commercial lease in Tampa, Florida, for Harold Calhoun, doing business as HC Associates. Subsequently, the Respondent contacted Theodore Blauvelt concerning an open listing that a limited partnership called SB II/Fidelity Silo Bend #008 had for the lease of 30,000 square feet of space which the limited partnership owned in an industrial park in Tampa. Blauvelt was the President of a TCC Tampa Industrial #2, Inc., a Trammell Crow Company which was the general partner of the Silo Bend #008 limited partnership. On March 12, 1990, the Respondent deactivated the broker license of MRG, and the Respondent went to work as a broker-salesman for another broker, Centres Commercial Realty Group, Inc. (Centres Commercial). Nonetheless, and despite the deactivation of the license under which the Respondent had been authorized to act as the broker for MRG, the Respondent and MRG continued to act as a broker separate and apart from Centres Commercial. It is not clear from the evidence exactly when the Respondent and MRG initiated negotiations between HC Associates and the limited partnership and became the procuring cause of any lease that might be concluded between them. But it is found that negotiations probably were initiated after March 12, 1990. Negotiations clearly continued after March 12, 1990. On or about May 7, 1990, HC Associates and the limited partnership concluded negotiations for a lease on the 30,000 square feet of space, and the limited partnership executed a Broker Commission Agreement with MRG, Inc., under which the limited partnership would pay MRG a $45,000 commission, payable half on execution of the lease and half when HC Associates occupied the leasehold space. On May 9, 1990, HC Associates signed a Lease Agreement for the 30,000 square feet of space, and Blauvelt secured and delivered to the Respondent a $22,500 check on an account of the Crow Trammell Companies, made payable to MRG, for the first half of its commission. The Lease Agreement was fully executed when Blauvelt signed it on behalf of the lessor on May 16, 1990. The May 16, 1990, Lease Agreement had a start date of June 1, 1990. However, it also provided for a $400,000 "Tenant Finish Allowance," payable $75,000 on May 21, $100,000 on June 1, and $225,000 on July 1, 1990. On or about June 14, 1990, Blauvelt and McLeod executed a second "Lease Agreement" for the 30,000 square feet of space. They testified that Blauvelt's company lost the May 16, 1990, Lease Agreement and that they had to execute a duplicate. Calhoun was out-of-town when the question of having to execute another Lease Agreement came up, and he authorized the Respondent to take care of whatever details were necessary. He did not specifically authorize the Respondent to sign Calhoun's name, or anyone's name other than the Respondent's, to the second Lease Agreement. On June 14, 1990, the Respondent signed the name Mark Thompson, purportedly as vice-president of HC Associates, as lessee on the second Lease Agreement. Blauvelt testified that he thought the Respondent had the authority to sign on behalf of HC Associates. Blauvelt did not know who Mark Thompson was. Mark Thompson was not vice-president of, or in any way connected with, HC Associates. The Respondent and Calhoun testified that the Respondent knew Thompson as being in the same business as Calhoun (liquidating foreclosed assets) and that the Respondent suggested to Calhoun that Calhoun and Thompson should collaborate in the business of HC Associates. Calhoun actually never met or spoke to Thompson. Although the Respondent and Blauvelt testified that the second Lease Agreement was for the sole purpose of replacing the lost first Lease Agreement, they made significant modifications. First, the start date was postponed to November 1, 1990. Second, without explanation, the provision regarding the $400,000 "Tenant Finish Allowance" was deleted. Nonetheless, the $400,000 was paid to Calhoun in accordance with the first Lease Agreement. Calhoun in turn paid those sums over to the Respondent, who testified that he acted as HC's "consultant" in supervising the tenant improvements. In accordance with the second Lease Agreement, on November 1, 1990, Blauvelt's company paid MRG the second half of its commission under the Broker Commission Agreement. Like the check for the first half of the commission, the check for the second half of the commission, in the amount of $22,500, was drawn on a Trammell Crow Companies account and was made out to MRG, Inc. The Respondent cashed both commission checks. He did not pay any part of the commissions over to Centres Commercial, the broker for whom he worked. He testified that Centres Commercial did not want any of MRG's commissions, and the DBPR did not call as a witness, or even interview, anyone from Centres Commercial to contradict the Respondent. The Respondent testified that Centres Commercial was not interested in any part of the commission for two reasons: first, it hired the Respondent as a tenant representative; second, it did not want to be liable for anything the Respondent or MRG had done before Centres Commercial hired the Respondent. Although HC Associates was paid the entire $400,000 "Tenant Finish Allowance," HC Associates and the Respondent only have been able to account for approximately $82,000 as actually having gone into lease improvements. Although MRG was paid the entire $45,000 commission, it is unclear whether HC Associates ever actually occupied the leased premises. The lessor has sued HC Associates, Calhoun, the Respondent, and Blauvelt for breach of the lease and on various other grounds. As of the time of the final hearing, no one knew the whereabouts of the purported Mark Thompson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) finding the Respondent guilty of violating Sections 475.25(1)(b) and 475.42(1)(a), and therefore also Section 475.25(1)(e), Fla. Stat. (1989); (2) imposing a $1,000 fine on him; (3) suspending him for four years; (4) requiring him to complete 30-hour broker management course; and (5) placing him on probation for one year after being reinstated. RECOMMENDED this 3rd day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3509 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 3.-6. Accepted and incorporated. Accepted and incorporated. (It was not clear how much "negotiation" was required, but there were significant changes between the two versions of the Lease Agreement.) Accepted and incorporated. Rejected as not proven that HC never took possession; otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. (For purposes of these rulings, consecutive numbers have been assigned to the unnumbered paragraphs starting on page 2 of the Respondent's proposed findings of fact.) Accepted and incorporated. Accepted that "tenant representation" is one way to describe it, but subordinate and unnecessary. Conclusion of law. First two sentences and first clause of the third sentence, accepted but subordinate and unnecessary. The rest is rejected as contrary to facts found and to the greater weight of the evidence. First sentence, unintelligible. (Not a complete sentence.) The rest is rejected as contrary to facts found and to the greater weight of the evidence. Rejected as contrary to facts found and to the greater weight of the evidence. (It was not clear how much "negotiation" was required; but, technically, there were "negotiations" because there were significant changes between the two versions of the Lease Agreement.) Subparagraph 1: Rejected as contrary to facts found and to the greater weight of the evidence that the Respondent procured the lease before March 12, 1990; otherwise, accepted and incorporated. Subparagraphs 2-3: Rejected as conclusion of law. Subparagraph 4: First sentence, rejected as conclusion of law; second sentence, accepted and incorporated. Accepted and incorporated that Centres Commercial agreed to the disbursement to MRG; otherwise, rejected as conclusion of law and argument. Conclusion of law. First sentence, rejected as contrary to facts found and to the greater weight of the evidence. Second sentence, accepted but subordinate and unnecessary. As to fraud, irrelevant and unnecessary since fraud was not charged. Otherwise, accepted and incorporated. (However, as found, the evidence was that HC transferred the money received from Trammell Crow over to the Respondent.) First sentence, conclusion of law; second sentence, irrelevant and unnecessary since fraud was not charged. First sentence, rejected as contrary to facts found and to the greater weight of the evidence. (It was not the Respondent's only "mistake.") Otherwise, as to fraud, irrelevant and unnecessary since fraud was not charged. Accepted and incorporated. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR-Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Stephen A. McLeod Post Office Box 76325 St. Petersburg, Florida 33734 Darlene F. Keller Director, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Linda Goodgame, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
