Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
The Issue Whether the Respondent is guilty of the violations alleged in the Administrative Complaint filed by the Petitioner and, if so, whether Respondent's real estate license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is a state government licensing and regulatory agency with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and the rules adopted pursuant thereto. At all times pertinent to this proceeding, Respondent Jared A. White T/A Jerry White Realty was a licensed real estate broker, having been issued license number 0187087 pursuant to Chapter 475, Florida Statutes. The last license issued to Respondent was as a broker with an address of 231 Skiff Pt. 7, Clearwater, Florida 34630. TITLE TO THE PROPERTY The matters at issue began with Respondent's retention as a real estate broker to bid at a foreclosure auction for a beachfront house and lot at 235 Howard Drive in Belleair Beach, Pinellas County, Florida. Respondent was hired to submit the bid on behalf of Dr. Moshe Kedan and/or his wife, Ella Kedan. Prior to the auction on August 17, 1995, Respondent had no contact with the Kedans. Kathy MacKinnon of Viewpoint International Realty in Clearwater was Respondent’s point of contact with the Kedans. It was Ms. MacKinnon who obtained Respondent's services to bid on behalf of the Kedans, and Ms. MacKinnon who negotiated with Dr. Kedan as to the financial arrangements for both the bid and any ensuing commissions for Respondent. Neither Ms. MacKinnon nor Dr. Kedan was called as a witness in this case. Respondent attended the foreclosure auction and tendered the winning bid on the property. Respondent bid in his own name. Respondent testified that he had bid at several similar sales in the past, and his practice was to bid in the name of the person who would hold title to the property. Respondent did not follow his usual practice here because Ms. MacKinnon failed to instruct him as to whether the property would be titled in the name of Dr. Kedan, Mrs. Kedan, or one of their corporations. Ms. MacKinnon told Respondent she would know on August 18 how the property was to be titled. Respondent's testimony regarding the initial titling of the property is supported by a handwritten note faxed by Ms. MacKinnon to Dr. Kedan on August 17, shortly after the auction. Ms. MacKinnon's note provides instructions regarding payment of the purchase price, indicating that the money must be submitted to the Clerk of the Court no later than 10:30 a.m. on the morning of August 18. The note specifically asks, "Also, whose name do you want the house in?" Respondent testified that on August 18, he went to Atlanta on business, with the understanding that Ms. MacKinnon would handle the payments to the Clerk of the Court and the titling of the property on that date. This testimony is consistent with the handwritten note in which Ms. MacKinnon indicates that she will take the Kedans' checks to the court. The record evidence shows that the payments were made to the Clerk of the Court and that title insurance on the property was timely issued. However, the title and the title insurance policy listed Respondent as owner of the property. Respondent was unaware the property had been titled in his name until he received the certificate of title in the mail, approximately two weeks after the auction. Upon receiving the incorrect certificate of title, he went to the title company and signed a quitclaim deed, effective August 17, 1995, in favor of Ella Kedan. Respondent testified that he had learned from Ms. MacKinnon that the property would be titled in Ella Kedan’s name at sometime during the two-week period after the auction. The quitclaim deed was not notarized until October 9, 1995, and was not recorded until October 10, 1995. However, the face of the deed states that it was made on August 17, 1995. It is plain that the signature line of the notary statement on the quitclaim deed has been altered from August 17, 1995 to October 9, 1995. Respondent had no knowledge of how the quitclaim deed came to be altered. Respondent also had no clear recollection as to why he dated the quitclaim deed August 17, 1995, in light of his testimony that he signed it approximately two weeks after that date. A reasonable inference is that Respondent so dated the quitclaim deed to clarify that Mrs. Kedan's ownership of the property commenced on August 17, the date on which Respondent submitted the winning bid. Respondent also had no knowledge of why the title company failed to record the quitclaim deed at the time he signed it. He testified that on or about October 9, 1995, he checked the Pinellas County computer tax records and discovered that he was still the owner of record. At that time, he returned to the title company to make sure the quitclaim deed was recorded the next day. Petitioner offered no testimonial evidence regarding the events surrounding the titling of the property. Respondent's uncontradicted testimony is credible, consistent with the documentary evidence, and thus credited as an accurate and truthful statement of the events in question. THE CONTRACT FOR REPAIRS Shortly after the auction, Respondent began discussing with Dr. Kedan the possibility of Respondent’s performing repairs on the just-purchased property. Because Dr. Kedan did not testify in this proceeding, findings as to the substance of the negotiations between Respondent and Dr. Kedan must be based on the testimony of Respondent, to the extent that testimony is credible and consistent with the documentary evidence. Respondent testified that Ms. MacKinnon approached him after the auction and asked him if he would be interested in fixing up the house for the Kedans. Respondent testified that he was agreeable to contracting for the work because his carpenter was between jobs and could use the money. Respondent thus met with Dr. Kedan at the doctor’s office to discuss the repairs. Dr. Kedan explained to Respondent that his ultimate plan was to demolish the existing house on the property and to build a more elaborate residence. Dr. Kedan wanted to rent out the house for five years before tearing it down, and wanted Respondent to affect such repairs as would make the house rentable for that five-year period. Respondent testified that Dr. Kedan expressly told him he did not want to spend a lot of money on the repairs. Respondent quoted Dr. Kedan a price of $20,000.00, which was the price it would take to pay for the repairs, with no profit built in for Respondent. Respondent testified that he sought no profit on this job. He had made a substantial commission on the purchase of the property, and anticipated doing business with Dr. Kedan in the future, and thus agreed to perform this particular job more or less as a “favor” to Dr. Kedan. After this meeting with Dr. Kedan, Respondent walked through the house with Irene Eastwood, the Kedans’ property manager. Ms. Eastwood testified that she and Respondent went from room to room, and she made notes on what should be done, with Respondent either concurring or disagreeing. Ms. Eastwood typed the notes into the form of a contract and presented it to Respondent the next day. On September 21, 1995, Respondent signed the contract as drafted by Ms. Eastwood. There was conflicting testimony as to whether Respondent represented himself as a licensed contractor in the negotiations preceding the contract. Respondent testified that he never told Dr. Kedan that he was a contractor, and that he affirmatively told Ms. Eastwood that he was not a contractor. Ms. Eastwood testified that she assumed Respondent was a licensed contractor because Dr. Kedan would not have hired a nonlicensed person to perform the contracted work. She denied that Respondent ever told her that he was not a licensed contractor. The weight of the evidence supports Respondent to the extent it is accepted that Respondent never expressly represented himself as a licensed contractor to either Dr. Kedan or Ms. Eastwood. However, the weight of the evidence does not support Respondent’s claim that he expressly told either Dr. Kedan or Ms. Eastwood that he was not a licensed contractor. Respondent’s subcontractors commenced work immediately upon the signing of the contract. Ms. Eastwood was in charge of working with Respondent to remodel the house, and she visited the site every day, often two or three times. She only saw Respondent on the site once during the last week of September, and not at all during the month of October. She did observe painters and a maintenance man regularly at work on the property during this period. Respondent concurred that he was seldom on the property, but testified that this was pursuant to his agreement with Dr. Kedan that he would generally oversee the work on the property. Respondent testified that he was on the property as often as he felt necessary to perform his oversight duties. Ms. Eastwood testified as to her general dissatisfaction with the quality of the work that was being performed on the property and the qualifications of those performing the work. She conveyed those concerns to the Kedans. Respondent testified that he did not initially obtain any permits to perform the work on the house, believing that permits would not be necessary for the job. On or about October 11, 1995, officials from the City of Belleair Beach shut down Respondent’s job on the Kedans’ property for lack of a construction permit. Respondent made inquiries with the City as to how to obtain the needed permit. City officials told Respondent that a permit could be granted to either a licensed contractor, or to the owner of the property if such property is not for sale or lease. Respondent checked the City’s records and discovered that, despite the fact that he had signed a quitclaim deed on August 17, he was still shown as the owner of the property. Respondent then proceeded to sign a permit application as the homeowner, and obtained a construction permit on October 11, 1995. Respondent testified that because the City’s records showed him as the record owner of the property, he committed no fraud in obtaining a construction permit as the homeowner. This testimony cannot be credited. Whatever the City’s records showed on October 11, 1995, Respondent well knew he was not the true owner of this property. Respondent cannot be credited both with having taken good faith steps to correct the mistaken titling of the property and with later obtaining in good faith a construction permit as the record owner of the property. Respondent testified that in obtaining the construction permit under false pretenses, his main concern was to keep the job going and to finish it in a timely fashion. He testified that there was no financial advantage to him in having the property in his name: he was making no profit on the job, and actually lost money because he had to pay for another title policy in the name of the Kedans. While there may have been no immediate financial advantage to Respondent, he was clearly motivated by the prospect of future profits in projects with Dr. Kedan. The City’s closing down this project jeopardized Respondent’s anticipated continuing relationship with Dr. Kedan, and Respondent took the improper step of obtaining a construction permit as the property owner to maintain that relationship. The Kedans ultimately dismissed Respondent from the job. A claim of lien was filed against the property by the painter hired by Respondent, and the cabinet maker sent the Kedans a lawyer’s letter threatening to file a claim of lien. Mrs. Kedan testified that she paid off both the painter and the cabinetmaker in full. Ms. Eastwood estimated that the Kedans ultimately had to pay an additional $20,000 to $50,000 to complete the repairs to the house, some of which included correctional actions for the improper repairs performed by Respondent’s workers. ALLEGED PRIOR DISCIPLINE Respondent has been the subject of a prior disciplinary proceeding by the Florida Real Estate Commission. In that prior proceeding, the Division of Real Estate's Administrative Complaint alleged that Respondent was guilty of violating Sections 475.25(1)(b) and (1)(k), Florida Statutes. On September 25, 1995, Respondent and the Division of Real Estate entered into a Stipulation disposing of the Administrative Complaint. Under the terms of the Stipulation, Respondent agreed to pay a fine of $1,000, and be subject to one year of probation, during which he would complete 30 hours of post-license education for brokers. The Stipulation expressly stated that Respondent neither admitted nor denied the allegations contained in the Administrative Complaint. The Florida Real Estate Commission entered a Final Order approving the Stipulation on November 14, 1995. Respondent's broker license was suspended by the Florida Real Estate Commission on January 24, 1996. The cause for this suspension was Respondent's failure timely to pay the $1,000 fine imposed by the Stipulation. Respondent paid the fine on February 19, 1996, and late renewed his license on April 24, 1997. In the instant proceeding, Respondent testified that by entering into the Stipulation, he had no intention of pleading guilty to any of the allegations, and that he would never have entered into the Stipulation had he known it would be construed in any way as a guilty plea.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts One and Three of the administrative complaint, and finding Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in Count Two of the administrative complaint, and suspending Respondent’s real estate license for a period of three years and fining Respondent a sum of $1,000. RECOMMENDED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 John Bozmoski, Jr., Esquire 600 Bypass Drive, Suite 215 Clearwater, Florida 34624-5075 Jared White White Realty 231 Skiff Point, Suite Seven Clearwater, Florida 34630 Henry M. Solares Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times relevant, Bangert was a licensed real estate salesman with State of Florida license number 0312002. On or about May 1, 1986, Cynthia Green (now Cynthia Tyson) listed her house at 408 Lakeview Drive, Altamonte Springs, Florida, under an exclusive right of sale contract with J. Scott Jones, a licensed real estate broker. Through his broker, Help U. Sell (Thomas Jafek and Thomas Jafek II), Bangert offered $64,900.00 to Ms. Tyson for the Lakeview house. The contract for sale offered a $1,000.00 deposit note, with two mortgages, including a balloon mortgage, payment of $3,000.00 fix-up costs by the seller, and cash to the seller at closing in the amount of $15,659.00 The offer was rejected by Ms. Tyson. J. Scott Jones negotiated over the telephone with Thomas Jafek II, and then with Bangert. The basic requirement of Ms. Tyson was that she wanted $50,000.00 net at closing. She also wanted a cash deposit, as she had a previous negative experience with a deposit note. J. Scott Jones does not recall that he told Bangert that a cash deposit was required, but he knows the issue came up sometime during the telephone discussion. He did not speak to both Jafek and Bangert at the same time. A second contract offer was signed by Bangert and was accepted by Ms. Tyson on August 30, 1986. The purchase price and method of payment was set out as follows: PURCHASE PRICE $ 68,500.00 PAYMENT: Deposit(s) to be held in escrow by Help-U-Sell of College Park, upon acceptance in the amount of $ 1,000.00 Subject to AND [sic] assumption of Mortgage in good standing in favor of To Be Obtained having an approximate present principal balance of $ 40,000.00 Purchase money mortgage and note bearing interest at 9 percent on terms set forth herein below, in the principal amount of 360 payments of 189.10 to Balloon at 60th mo. $ 23,500.00 Other Purchase Money Mortgage @ 10 percent in a single payment at 60th mo. $ 5,000.00 Balance to close (U.S. cash, LOCALLY DRAWN certified or cashier's check), subject to adjustments and prorations $ 68,500.00 (Petitioner's Exhibit #4) The Contract also provided for the $50,000.00 net at closing to the seller. Bangert gave Thomas Jafek a deposit note in the amount of $1,000.00. Jafek did not know how to put a note in a trust or escrow account, so he held it in his files at Help U. Sell. Jafek had dealt with Bangert before in real estate transactions and had acted before as the escrow agent. In those dealings Bangert only put down notes, never cash. Jafek understood that Bangert's role was as a principal buyer and that Bangert intended to assign the contract for sale. The transaction was initially scheduled to close on September 26, 1987. On September 30, 1986, the parties agreed to extend the closing until October 10, 1986. When J. Scott Jones met with Bangert to get the extension signed, he learned that a note, rather than cash deposit had been made. The transaction never closed. For reasons that are not material to this proceeding, Bangert did not appear at the closing. Cynthia Tyson retained an attorney, Garrick N. Fox, who sent letters to Jafek and to Bangert on October 17, 1986. The letter to Jafek provides, in pertinent part: As per the contract for sale and purchase, your company holds one thousand dollars in escrow and we may [sic) hereby make demand that you remit to this law office the one thousand dollars held in escrow as partial damages for the default of the contract. (Petitioner's Exhibit #6) The letter to Bangert does not mention the deposit, but states that the contract is in default. The final paragraph states: It is my sincere desire that we can settle this matter amicably without the necessity of litigation. If you can close on this contract forthwith, all of these problems can be settled. If not I would appreciate it if you would have your attorney contact [sic] so that we can immediately take the proper steps to minimize Miss Green's damages. (Petitioner's Exhibit #7) The attorney never made an oral demand on Bangert for the $1000.00. Jafek did not consider his letter to be a present demand, but rather a statement of intent to make a demand in the future. Jafek did not tender the note and the $1000.00 was not paid. Bangert had no intent to make a cash deposit. He claims that he told "Tom Jr." " (Thomas Jafek II) to type "a deposit note" on the second contract offer, but that even without that language, a note, rather than cash, was not precluded by the contract terms. Bangert intended that the transaction take place and did not have an intent or motive to defraud the seller. If the transaction had closed, he claims he would have honored the note. As far as he knows, Jafek still has the note. Bangert claims also that it was an oversight that he did not reveal his real estate license status on the contract. The Jafeks knew he was a real estate salesman. Further, he and Scott Jones were teaching at the same real estate school and he felt that Jones should have known his status. He did not intend to hide the fact of his license from anyone. His business in the last three years has been actively serving as a principal buyer and seller for other parties. Bangert's liability on his note is not at issue. In the absence of clear evidence of his knowledge of the seller's conditions, I cannot find that he is guilty of fraud in putting a note cash on deposit. Nor did he deliberately misrepresent a material fact to the seller by failing to disclose that he was a licensed real estate salesman. Ms. Tyson never met Bangert. Both parties were dealing at arms length through their own brokers. Conclusions of Law The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1) F.S. and Section 455.225(4) F.S. Section 475.25(1) F.S. provides that the Florida Real Estate Commission may impose discipline if it finds that a licensee, (b) Has been 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... DPR has the burden of proving the allegations of this complaint through evidence that is clear and convincing. Ferris v. Turlington, 510 So.2nd 292 (Fla. 1987). It is apparent now that Ms. Tyson wanted a cash deposit as one condition of accepting an offer to buy her property. It is not clear that the condition was communicated to Bangert by either his broker, Thomas Jafek, II, or by Ms. Tyson's broker, J. Scott Jones. Without this material evidence it cannot be established that Bangert deliberately engaged in a subterfuge. Without evidence of dishonest or illicit intent, there is no guilt under Section 475.25(1)(b), F.S. Morris v. Department of Professional Regulation 474 So.2nd 841 (Fla. 5th DCA 1985). No rule nor provision of law has been cited to require a real estate licensee to reveal his status as such when engaging in the purchase and sale of property in his personal capacity. Nor was evidence produced that would establish and justify such a policy by the Board. In Santaniello v. Department of Professional Regulation 432 So.2nd 84 (Fla. 2nd DCA 1983), the court upheld the Board's right to determine that a broker violated Section 475.25(1)(b) F.S. when he failed to reveal that a purchaser was his mother-in- law. In that case, the court observed that the broker owed his allegiance to the sellers and was obligated to inform them of anything which might influence their decision to sell. Because of that, the existence of the mother-in-law relationship was deemed a material fact. No such foundation for a duty to inform was established here, therefore there was no violation of section 475.25(1)(b) F.S.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Administrative Complaint against Larry G. Bangert be dismissed. DONE and RECOMMENDED this 17th day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Office Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3044 The following constitute specific rulings on the findings of fact proposed by Petitioner. Adopted in paragraph #1. Adopted in paragraph #2. Adopted in substance in paragraphs #3 and #4. Adopted in substance in paragraph #4. Evidence did not establish that Bangert was aware of the cash deposit condition by Ms. Tyson. Rejected as contrary to the evidence. The face of the contract does not require cash. Adopted in paragraph #7. Adopted in paragraph #8. Adopted in paragraph #6. Adopted in substance in paragraph #7. Adopted in paragraph #11. Adopted in paragraph #7. Adopted in part in paragraph #10. Bangert contended that the contract did not specify cash. Rejected as cumulative. Adopted in paragraph #9. Rejected as immaterial. COPIES FURNISHED: Copies furnished: DOAH Case No. 87-3044 James R. Mitchell, Esquire Department of Professional Regulation Legal Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Larry G. Bangert 103 Cashew Court Longwood, Florida 32750 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office. Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact In December, 1976, Respondent Murray was registered with Petitioner as a real estate broker and Respondent Doyle was registered as a real estate salesman associated with Murray. Negotiations conducted between Murray, Doyle and representatives of Cameron-Brown led to the execution of an Exclusive Right of Sales Agreement, dated December 1, 1976 (Exhibit 1). This agreement was negotiated between the parties with the final draft prepared by Cameron-Brown legal staff and approved by R.E. Murray and Associated (REMA) by Murray and Cameron-Brown Company by a vice-president. The contract covered condominiums that had been foreclosed on by Cameron-Brown and which they were anxious to sell. In addition to providing commissions to be paid on sales, how down payments were to be handled, how the agreement could be terminated, reports to be submitted, defining responsibility for employees, and establishing the closing agent for Seller, the agreement, and Addendum A, provided that Doyle was to have sole control of managing and marketing the project. This latter provision was interpreted by the principal drafters of the agreement to indicate that Cameron-Brown was interested in having Doyle as sales manager of the project but in all respects working under Murray as broker. Little discretion was left to the agent in executing contracts which were provided by the Seller, handling of the escrow deposits or in preparing closing statements, as the manner of carrying out these duties was established by the agreement which also provided that all deposits were to be placed in escrow with the title company designated as closing agent for the Seller. During the period the condominium units were being sold this was the major, if not sole, real estate function performed by REMA. The agreement was carried out to the satisfaction of Cameron-Brown with all units sold quicker than had been expected. From the summer of 1976 through the selling of the condominiums, Respondent Murray, who is also a licensed broker in Minnesota, was engaged in a real estate development project in Minnesota and spent the major part of his time in Minnesota. Murray was in communication with his Clearwater office by telephone and discussed all aspects of the agreement with Doyle doing the negotiations. After the agreement was executed by Murray, he was also available by telephone and was contacted by Doyle and others in the office when they deemed it necessary. Murray signed all listing agreements and approved all salesmen employed. One sales person, Mrs. McGhan, was interviewed by a REMA salesperson and Doyle and her employment was approved by Murray. Because her registration was close to expiration when she was hired, Murray authorized Doyle to sign his, Murray's name to her application to be forwarded to FREC. No effort to emulate Murray's signature was made by Doyle in signing Murray's name on the McGhan application. During the period involving the sales of these condominiums Murray received weekly reports on the progress of the sales and was in frequent contact with the office. Procedures to be followed in the REMA office had been established by Murray orally and in written memoranda and were, after the charges herein involved were brought, published in a Procedures Manual, a copy of which was admitted into evidence as Exhibit 7. Respondent Doyle at all times here involved was employed by REMA as a salesman. Doyle holds an inactive real estate broker's license in California and has been a licensed Florida real estate salesman since March 1976. He passed the C.P.A. exam in California in 1970 and also holds a Florida Mortgage Broker's license. He has a Master's degree from UCLA in Real Estate and Urban Land Economics, and is a certified teacher at St. Petersburg Junior College, teaching Real Estate Finance since 1977. During the negotiations leading up to the Exclusive Right of Sale Agreement with Cameron-Brown, Doyle did most of the negotiations for REMA and John Sullivan, an employee of Cameron-Brown, did the negotiations for Cameron- Brown. In conducting these negotiations, Doyle was in frequent communication with Murray and Murray was the final approving authority for REMA. Doyle was authorized to sign checks drawn on the REMA escrow account, but no evidence was presented that he ever signed checks on this escrow account or that it would have been wrong had he done so. During the period Murray was spending most of his time in Minnesota, the principal efforts of REMA were involved in the condominium project and none of the earnest money deposits there received were placed in REMA escrow account.
Findings Of Fact At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order fining Respondent $500. DONE and ENTERED this 12th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Louis S. Okoniewski 730 Lake View Avenue, N.E. Atlanta, Georgia 30308 Harold Huff. Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
Findings Of Fact The Respondent, Ann K. Croasdell, was a registered real estate broker at all times material hereto. She has been issued License No. 0141344. In 1977 or 1978, Respondent met William Young at a neighborhood barbecue. About a year after this initial meeting, Young attended a real estate school owned and operated by Respondent. At that time a business relationship developed between them which lasted until approximately September, 1980. In 1980, Bruce Rhodes, then an investigator with the Maitland Police Department, was assigned a case wherein residences up for sale were being burglarized. There were no signs of forcible entry to these homes and each one had a multi-lock box used by realtors to show the homes. Thus, the person who was burglarizing the homes was referred to as the "multi-lock burglar". During the course of the investigation, evidence was obtained which pointed to William Young as the multi-lock burglar. The evidence consisted of statements from various witnesses. Subsequently, a search warrant was issued and served on William Young's apartment. Young was eventually arrested and pled guilty to grand theft in the second degree and other unrelated charges. He is currently serving a seven and a half year prison sentence at Lawty Correctional Institute, Lawty, Florida. 5.. During the investigation into Young's activities, Respondent was interviewed by the Maitland Police Department on several occasions. The first such interview took place on November 13, 1980, at the Maitland Police Department and was conducted by Sergeant Walter Steeb and Investigator Bruce Rhodes. The Respondent was not under arrest nor was she compelled to appear, but came voluntarily at the request of the Maitland Police Department. At the initial interview, the Respondent acknowledged accompanying Young to residences with multi-locks that were for sale, but stated she did not see Young take anything. On December 1, 1980, the Respondent again appeared at the Maitland Police Department at their request. She again appeared voluntarily and was not under subpoena, under arrest or charged as a suspect. At this December 1, 1980, interview, Respondent gave three separate statements to Investigator Bruce Rhodes of the Maitland Police Department. These statements and her subsequent statements differ substantially from the information she gave to the Maitland Police Department on November 13, 1980. Two of the three December 1, 1980, statements concern the return of property. One statement acknowledged the returning of a set of golf clubs to Officer Rhodes on Thursday, November 20, 1980. In this statement, Respondent stated that while she was with William Young, he entered the garage of a house in Sweetwater and came out with a man's set and a Woman's set of golf clubs which he placed in the trunk of her car. Respondent admitted, both at a prior deposition and at the final hearing, that she knew these golf clubs were stolen. At the deposition, she stated she intended to keep the set of woman's golf clubs, knowing they were stolen. The circumstances surrounding the taking of the golf clubs corroborates the fact that the Respondent knew these clubs were stolen. On the day in question, the Respondent and William Young were out looking at homes and pulled up in the driveway of a house that was for sale. The house had no multi-lock, but Young gained entrance through an open side door to a garage. He entered the garage and removed a man's and a woman's set of golf clubs, which he placed in Respondent's car. Respondent did not go into the garage with Young, but remained in the car. She did, however, get out of the car to open the trunk for Young to put in the two sets of golf clubs. In addition to the facts surrounding the golf clubs, Respondent has also admitted, on several occasions, to having taken two sets of yellow towels from a home in Wekiva. These admissions came in the form of the December 1, 1980, statement made to Bruce Rhodes, and subsequently, at a deposition taken on August 17, 1981, in the case of State of Florida v. William Young. At her deposition of August 17, 1981, Respondent explained how she entered the house with a multi-lock key and took the towel sets which consisted of two towels, two hand towels and two washcloths. Additionally, in response to the question as to whether she stole the two sets of towels, she answered "yes," that she did. Respondent did not alert the authorities to these burglaries, nor did she attempt to turn in the stolen golf clubs or towels. Her only excuse for her activities was a claimed fear of William Young. Although Respondent established that Young was abusive to women, there was no indication that she or a member of her family was in any real danger. Rather, she participated with Young as a willing accomplice.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a final order suspending Respondent's real estate broker's license for a period of five years. 2/ DONE and ENTERED this 21st day of March, 1983, in Tallahassee, Florida. R.T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1983.
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
The Issue Whether the license of Respondent as a Mortgage Solicitor should be suspended for violation of Sections 494.05 (1) (a) & (b), Florida Statutes, Rule 3-3.07(1), Florida Administrative Code, and Section 494.05(1)(g), Florida Statutes. At the commencement of the hearing, Respondent's counsel moved to dismiss the proceedings by reason of Petitioner's failure to provide witness statements of Charles R. Burke & Kathryn C. Burke, pursuant to a letter from Respondent's counsel to the Deputy Director, Division of Finance, dated August 26, 1975, requesting copies of any witness statements obtained in the course of Petitioner'S investigation. Respondent not having previously sought to compel discovery in accordance with Florida Rules of Civil Procedure, the motion was denied. At this point, Respondent's counsel announced that he had been instructed by his client, who was not present at the hearing, to leave the hearing room and take no further part in the proceedings if the motion was denied. This being the case, Respondent's counsel departed and the hearing was then conducted as an uncontested proceeding.
Findings Of Fact Respondent was licensed as a Mortgage Solicitor with the firm of Hartwell and Associates, Inc., from May 27, 1974 to July 24, 1974, when his license was returned to Petitioner for cancellation by that firm. On September 13, 1974, Respondent was issued a Mortgage Solicitor's License with ABC Investment Corporation. Records of the Office of the Comptroller, State of Florida, Division of Finance, Department of Banking and Finance, failed to reveal any other license as a mortgage broker or mortgage solicitor having been issued to Respondent (Testimony of Ehrlich, Petitioner's Exhibit 1). In the spring of 1974, Mr. and Mrs. Charles R. Burke, Sr. of Ft. Lauderdale, Florida, met the Respondent who proposed to double the income that the Burkes were then receiving from interest on securities investments. This was to be done through the purchase of promissory notes secured by first mortgages on property located in Volusia County, ostensibly owned by LTP Properties, Inc., a land developer. Respondent showed them photographic slides of a club house at the development site and stated that there would be a golf course there and painted a bright picture of the receipt of 12 percent interest on the notes if the Burkes would liquidate the stocks that they owned and invest through him. He stated that the amounts that they would invest would represent only 40 per cent of the value of the real estate that secured their investment, and that it was a "sure thing.' Acting upon Respondent's advice, Mr. and Mrs. Burke cashed in some $180,000.00 in stocks and turned it over to the Respondent in June, 1974. In return, they received $180,000.00 in promissory notes in face amounts of $5,000.00 and$8,000.00 issued by LTP Properties, Inc. The promissory notes indicated on their face that the sale was approved by SEI, Inc., sales agent for LTP Properties, Inc., and they were signed by the president of SEI, Inc. The interest payments were to commence July 1st. Such payments were received during the months of July through December, 1974. In the fall of 1974, the Burkes invested another $100,000.00 with the Respondent for similar instruments, and again in January, 1975, they purchased another $20,000.00 in promissory notes and mortgages in face amounts of $5,000.00 each which also were issued by LTP Properties, Inc., but then owned by Respondent. At this time, the January 1st interest payment on the prior investments had not been made and, prior to making the final investment, the Burkes inquired of Respondent as to the reason for nonpayment of interest. He stated to them that LTP Properties was experiencing financial difficulties at the time but that it was endeavoring to get money from a bank overseas and from the Mellon Bank in Pennsylvania. No further interest payments have been made on any of the notes since December, 1974, and the Burkes discovered later that they did not, in fact, hold first mortgages on the real estate described in their mortgage deeds and consequently could not foreclose thereon (Testimony of Mr. and Mrs. Burke, Petitioner's Exhibit 2, Petitioner's Composite Exhibit 3). Prior to advising investors to purchase notes of LTP Properties, Inc., Respondent made several trips to the site of the property, checked with the local bank of the developer, was shown a financial statement which indicated that the developer was solvent, and compared values with surrounding real estate developments. He told the Burkes that LTP was obtaining foreign financing based on information he had received from Mr. David Edstrom of SEI, Inc., who in turn had acquired the information from Mr. Frank Carcaise of LTP Properties, Inc. This statement was made to the Burkes sometime between February and June of 1975 according to the Respondent. As far as Respondent knew, LTP Properties, Inc., stopped making interest payments on their notes about February, 1975 (Deposition of Respondent).
Findings Of Fact Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500. DONE and ENTERED this 16th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982.
Findings Of Fact Mr. Charles Peters was employed by Ameri-lantic Corporation at the time he applied for licensure as a mortgage broker, and he is currently employed by Ameri-lantic Mortgage Brokerage Company. Mr. Peters' duties at Ameri-lantic have included contacting potential lenders. These duties have also included discussing loan terms and rates with potential lenders. As an employee of Ameri-lantic, Mr. Peters has received compensation for his efforts on behalf of his employer, in the form of salary. There is no evidence that Mr. Peters' compensation was based on commissions of any kind. There is no evidence that Mr. Peters' duties included contacting persons who wished to borrow money, or that he acted to bring together those who wish to borrow with those who wished to lend money for mortgages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Charles Peters for licensure as a mortgage broker be granted, if he meets the other requirements for licensure, such as sucessful completion of the written examination. DONE and ENTERED this 4th day of December, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 4th day of December, 1990. COPIES FURNISHED: Eric Mendelsohn, Esquire Department of Banking and Finance Office of the Comptroller 111 Georgia Avenue Suite 211 West Palm Beach, Florida 33401-5293 Robert L. Saylor, Esquire 215 Fifth Street Suite 302 West Palm Beach, Florida 33401 Honorable Gerald Lewis Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
