Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts were found: At all times relevant hereto, Respondent was licensed as a real estate broker or salesman in the State of Florida having been issued license No. 0402589 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker-salesman, 2701 Vasser Road, Tallahassee, Florida 32308. Initially, Respondent was licensed as a real estate salesman effective April 21, 1983. On July 9, 1982, a complaint was filed with the Wisconsin Supreme Court against the Respondent by the Wisconsin Board of Professional Responsibility (Board) alleging that Respondent had engaged in dishonesty, fraud, deceit, misrepresentation, unprofessional conduct, had filed a false grievance, and had responded falsely to questions from the Board, in violation of *SCR 20.04, 20.04(4). 20128 and 22.07(2). The court then referred the matter to a referee pursuant to SCR 21.09(4). On January 21, 1983 the Respondent and the counsel for the Board entered into a stipulation wherein Respondent stipulated that: (a) his multiple representation of the corporation and individuals in connection with negotiation for, and sale of, the property by the corporation constituted a clear conflict of interest, in violation of SCR 20.24 and 20.28; (b) that his assertion in his opinion on title that the condominium documents met applicable state law constituted misrepresentation, in violation of SCR 20.04(4); (c) that his failure to advise purchasers of the corporation's financial problems constituted misrepresentation, in violation of SCR 20.04(4); (d) that his signing of the affidavit concerning the accuracy of the closing statement and distributing the closing statement constituted misrepresentation, in violation of SCR 20.04(4); and (e) that his response to the Board, in connection with the grievance, that he was not aware at the time of the purchase of any financial problems of the corporation was false and constituted misrepresentation, in violation of SCR 22.07(2). The referee filed his report with the Wisconsin Supreme Court on January 27, 1983, in which he made his findings of fact and conclusions of law consistent with the terms of the stipulation and recommended that Respondent's license to practice law be suspended for a period of sixty (60) days and that he be required to pay $2,500 toward costs and fees incurred. On April 27, 1983 the Wisconsin Supreme Court entered its order adopting the findings, conclusions and recommendation of the referee, with the exception that the Respondent be held liable for payment of the total costs of the disciplinary proceedings. In their briefs filed with court on the appropriateness of the recommended discipline to the professional misconduct, both parties noted that Respondent was cooperative in making his records available to the Board, that no trust account errors were found, that there was no conversion of client property, and that there had been no prior disciplinary actions against the Respondent. On July 21, 1983, the Wisconsin Supreme Court entered an Order extending the time until September 30, 1983 for Respondent to pay the costs ordered in its Order of April 26, 1983 or have his license to practice law revoked. On November 16, 1983, the Wisconsin Supreme Count entered its Order revoking Respondent's license to practice law in the State of Wisconsin for failure to comply with the Court's Order of July 21, 1983 extending the time for payment of costs in the disciplinary action. On Respondent's application for licensure as a real estate broker dated October 18, 1984 and filed with Petitioner on October 22, 1984, Respondent answered "no" to question 13(a) on the application which is as follows: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended, in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or, is any proceeding pending? (emphasis supplied)
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 22nd day of October, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 22nd day of October, 1986.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found; At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps). On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein. Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 13th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8. Adopted in Findings of Fact 2 and 3 but clarified. Adopted in Findings of Fact 4, 5 and 6 but clarified. Adopted in Finding of Fact 7. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph 4 is adopted in Finding of Fact 8. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph 5 is adopted in Findings of Fact 7 and 9. Adopted in Findings of Fact 8 and 10 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 9. COPIES FURNISHED: Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 William J. Haley, Esquire Post Office Box 1029 Lake City, Florida 32056-1029
The Issue The administrative complaints allege that John Maxfield failed to pay an appraiser for his work, he failed to maintain an office and sign at the address listed with the Florida Division of Real Estate, he failed to maintain trust funds in an escrow account, and he failed to release security deposits of tenants, in violation of Chapter 475, Florida Statutes and rules of the Florida Real Estate Commission. The issue for determination is whether these violations occurred and, if so, what disciplinary action against Maxfield's license is appropriate.
Findings Of Fact At all times relevant to the complaint, John R. Maxfield, was licensed by the State of Florida as a real estate broker-salesman, with license number 0130663. Michael Chambers is a real estate appraiser in Winter Park, Florida. Around August 1986, he was retained by Maxfield to conduct appraisals of some apartment complexes and a duplex. An associate of Maxfield's met Chambers at the property to give him access for the appraisals. After the appraisals were done, Maxfield failed to pick them up as he had agreed. Chambers went by the office listed on the business card given to him by Maxfield's associate, but could not find the office. He later found the office, but Maxfield's secretary did not have the payment for him. To date, Maxfield still has not paid the $600.00 appraisal fee, in spite of Chambers' several demands. From 1983 or 1984, until October 1986, Maxfield was the trustee of a land trust with several investor beneficiaries. Hideaway Delaney Apartments in Orlando, Florida is a property owned by the trust. Maxfield was the manager of the property until October 1986. He was relieved of his duties when the beneficiaries learned that other trust property was being foreclosed. While manager of the property, Maxfield received tenants' deposits through his agents, various resident managers. He never released those deposits to the trust beneficiaries, to the successor manager, John Capone Realty, or to the tenants, after he ceased serving as manager. The total amount of unaccounted for security deposits is $2245.00. In March 1987, in an interview with Maureen Harvey, a Division of Real Estate investigator, Maxfield admitted that he used the deposit money to off-set his own expenses. Earlier, in a civil action brought by some tenants seeking their deposits, Maxfield admitted that he owed the money and agreed to pay it. The deposit money remains unpaid. The administrative complaints allege that between October 1986 and March 1987, Maxfield failed to maintain an office and entrance sign at the business address he had registered with the Department of Professional Regulation. One complaint alleges the address as 103 Lucerne Circle, Orlando. The other complaint alleges the address as 203 Lucerne Circle, Suite 500, Orlando. Maxfield's license renewal forms indicate the address was 203 N. Lucerne Circle, Suite 500, Orlando. Assuming that the one complaint contained a typographical error, the testimony by DPR's witnesses did not clearly establish the dates they visited the premises and failed to find an office or sign. The investigator visited the address in April 1987, after the period alleged in the administrative complaints. Michael Chambers took photographs of the buildings on the site, much earlier in August 1986. As of June 1987, Maxfield's license renewal form lists his business address as Vistana Resort Development, Inc., 13500 State Road 535, Orlando, Florida.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: that a Final Order be entered, finding John R. Maxfield guilty of violations of Sections 475.25(1)(b), (d), and (k), Florida Statutes, suspending his real estate license for three (3) years, and thereafter placing him on probation for a period of two (2) years, under appropriate conditions to be established by the board. DONE AND RECOMMENDED this 26th day of February, 1988, 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 day of February, 1988. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John R. Maxfield 9100 Meadowcreek Drive #648 Orlando, Florida 32821 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue The issues posed for decision herein are whether or not, based on conduct which will be set forth hereinafter in detail, the Respondent is guilty of a course of conduct constituting fraud, misrepresentation, concealment, false promises, etc., in violation of Subsection 475.25(1)(b), Florida Statutes (1979); whether or not Respondent has obtained a real estate license by means of fraud, misrepresentations or concealment, in violation of Subsection 475.25 (1)(m), Florida Statutes (1979); whether or not Respondent has been guilty of fraud, misrepresentation, false promises and false pretenses, in violation of Subsection 475.25(1)(b), Florida Statutes (1979); and whether or not Respondent has been guilty of a crime against the laws of this state involving fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes (1979). 2/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. Patricia C. Alters, Respondent herein, is a registered real estate salesperson and has been so registered since approximately February 18, 1980. Respondent has been issued License No. 0330568 by the Petitioner. On November 10, 1979, Respondent made an application for registration as a real estate salesperson to the Florida Real Estate Commission. Question No. 6 of that application required that Respondent report if she had ever been arrested for or charged with the commission of any offense against the laws of any municipality, state or nation. Respondent filed a negative response to question No. 6. (Petitioners Exhibit No. 1.) On June 18, 1979, an arrest warrant was issued in Duval County, Florida, charging Respondent with issuing worthless checks and drafts, in violation of Chapter 832, Florida Statutes (1979). Pursuant to that warrant, Respondent was arrested on June 20, 1979, by the Clay County Sheriff's Department. Respondent was booked and released on her own recognizance. (Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 1.) On May 19, 1980, Respondent was charged with the issuance of a worthless check drawn on or about December 19, 1979, in the amount of $12.71. The check was issued to the J. C. Penney Company, Inc. (Petitioner's Exhibit 4.) Respondent pled guilty to said charge and was adjudged guilty by the court on May 19, 1980, in criminal proceeding No. 80-9979MM in the County Court of Duval County, Florida. She was fined $50.00 plus court costs. (Petitioner's Exhibit No. 5.) On or about October 7, 1978, Respondent leased a residence located in Clay County, Florida, from one Lon E. Brugh. Respondent defaulted on said lease on several occasions failure to timely pay the rent and late charges, namely the rent for the months of June and July, 1979, and for late charges on the months of October, November and December, 1978, and January through July, 1979. Lon E. Brugh filed a civil suit in the County Court in and for Clay County, Florida, and charged that the Respondent had defaulted on the terms of the lease. On November 30, 1979, Respondent was adjudged to be in default of said lease and ordered to pay to Lon E. Brugh the sum of $929.05 plus his (Brugh's) costs of $34.00. Evidence reveals that Respondent issued three (3) checks to Lon E. Brugh during late April and early May of 1979, for payment of rent and late charges for the residence which she leased from Brugh. Evidence also revealed that Respondent immediately instructed her bank to place stop payments on the checks which she had issued to Brugh for rent payments. Respondent contends that she placed stop payments on these checks due to a dispute that she had with Brugh concerning her responsibilities under the lease. Evidence reveals that the checks here involved were either for past due rents or for late charges. (Tr. pp. 62-66.) RESPONDENT'S POSITION AND DEFENSE Initially, Respondent's position is that she was not licensed when the civil suit was filed by Lon E. Brugh or when she entered the lease agreement and therefore the facts surrounding the civil suit and related matters which occurred prior to her licensure should not be considered as a basis for Petitioner to take disciplinary action. Secondly, Respondent countered that she issued all checks, which were the basis for the civil action filed by Brugh while she was hospitalized during April and May of 1979. Respondent contends that Mr. Brugh deposited the three (3) checks before she could make a deposit in her bank to cover the checks inasmuch as she was in the hospital. Respecting the events surrounding Petitioner's allegation that Respondent was arrested, Respondent counters that she thought that she had never been arrested, inasmuch as she was driven to the sheriff's office in Clay County during the early morning hours on June 20, 1979, pursuant to a warrant issued by the Duval County Sheriff's Department. That arrest centered around a worthless check which Respondent issued to Sears. Respondent does not deny that the check was worthless when issued; however, she points out that restitution has been made to Sears. In support of her belief that she had not been arrested, Respondent points to the facts that she did not post bond; was not placed behind bars and was allowed to leave under her own recognizance. In response to that charge, Respondent entered a written plea of not guilty. She therefore considered that she was not arrested. (Petitioner's Exhibit No. 3.) As to the circumstances surrounding the worthless check which Respondent issued to Penney's during December of 1979, Respondent noted that she made restitution for said check; that Penney's returned the monies which she paid them, inasmuch as she did not obtain the merchandise which was in the form of a lay-a-way purchase. Respondent admits to her plea of guilty; however, she testified that she had been issued a $3,500.00 check which was deposited into her account and was returned for non-sufficient funds, which, in turn, caused several of her checks to be returned. Finally, Respondent generally denied all of the allegations involved herein and affirmatively stated that she made restitution for all of the checks which had been returned returned for non-sufficient funds; that she has established a good record of honesty and trustworthiness in the community and is well respected by realtors and other officials involved in the real estate business in the area. (Testimony of Respondent, Ken O'Leary, Sheldon Wardwell, John Drago and Peter Dalton.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license as a real estate salesperson be revoked and that the revocation be suspended for a period of forty-five (45) days during which time Respondent shall be afforded an opportunity to re-submit her application to be licensed as a real estate salesperson. It is further RECOMMENDED: That, in the event Respondent re-submits a, new application to be licensed as a real estate salesperson, which truthfully and completely responds to Question 6 of that application, Petitioner consider the character and mitigating evidence offered by Respondent herein. In such case, if Respondent re-submits her application for licensure within the above-referred forty-five (45) day period, it is further RECOMMENDED: That Respondent, after completing the filing of a new application as set forth herein, which otherwise fully satisfies and comports with Petitioner's procedures, be issued a new license, which license shall be placed on a probated status for a term of two (2) years. DONE and RECOMMENDED this 22nd day of June, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of June, 1982.
Findings Of Fact In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case. RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of June, 1986. COPIES FURNISHED: John B. Root, III Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A. 338 N. Magnolia Avenue, Suite D Orlando, Florida 32801 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DEPARTMENT OF BANKING AND FINANCE, Petitioner vs. CASE No. 86-0328 TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision: In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing. DATED this 13th day of May, 1986. JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE Office of the Comptroller GORHAM RUTTER, JR., P.A. 400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801 ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT Telephone: (305) 423-5116 Telephone: (305) 841-7667 TERRY E. CHRISTENSEN, Respondent EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0024293 TERRY E. CHRISTENSEN, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, CASE NO. 0021931 vs. TEC REALTY, INC. AND TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case. STIPULATED FACTS AND CONCLUSIONS OF LAW Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505. Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo". Respondents admit that they are subject to the provisions of Chapters 455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto). Respondents admit that the Administrative Complaint contains no disputed issues of material fact. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act. STIPULATED DISPOSITION Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation. SIGNED this day of , 1983. (filed document undated) SWORN TO AND SUBSCRIBED Respondents before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC Realty, Inc. Notary Public My Commission Expires: Notary Public, State of Florida My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc. Approved this 21st day of June, 1983. John Huskins, Staff Attorney Department of Professional Regulation Legal Section 400 West Robinson Street, 308 Post Office Box 1900 Orlando, Florida 32802 (305) 423-6134 Approved this 13th Fred Roche, Secretary day of June, 1983. Department of Professional Regulation JH/dm 6/6/83 EXHIBIT 2 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 0024293 DOAH NO. 83-346 TERRY E. CHRISTENSEN and TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345 Respondents /
Findings Of Fact Prior to the hearing, counsel for the parties orally stipulated that the allegations set forth in the administrative complaint filed against the Respondent on October 1, 1980, were true and correct. The purpose of the hearing was to present testimony explaining the circumstances surrounding the Respondent's guilty plea to one count of income tax evasion and attesting to the good character and reputation of the Respondent within the South Florida community where he and his family presently reside. In 1975, the Respondent was part owner and treasurer of Blanchard Associates, a small company located in Portland, Maine, which dealt in fire apparatus and supplies. In the spring of 1975, the company was audited by the Internal Revenue Service (IRS) and a number of discrepancies were found during the course of a continuing three year audit. One of the discrepancies involved the failure to report as income the sale of two used fire trucks worth approximately $4,700.00 each. The audit resulted in an eight count information being filed on January 17, 1979, in the Southern District of Maine charging both the Respondent and his partner, Shirley T. Hamel, with two counts and the Corporation, Blanchard Associates, with four counts of income tax evasion. On January 19, 1979, the Respondent pled guilty to one count of income tax evasion for the year 1973 and was placed on probation for two years and ordered to pay a fine of $5,000.00 and any interest and penalties found to be due. Additionally, a 30-day jail sentence was imposed. The Respondent voluntarily advised the Florida Real Estate Commission and his broker of his conviction, which action resulted in the filing of the administrative complaint. No administrative complaint or criminal indictment or information has been filed against the Respondent regarding any misconduct occurring as a real estate salesman. The Respondent enjoys an excellent reputation in the Ft. Myers area and has been a successful salesman since moving to Florida in January, 1977. While residing in Portland, the Respondent was involved in numerous civic activities including serving on the South Portland School Board, the Portland City Council and the Maine School District Commission.
The Issue Whether respondent violated sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, by the manner in which she handled the real estate transaction involving the property located at 29 S. Lawsona.
Findings Of Fact Respondent is a licensed real estate salesman and was a licensed real estate salesman at all times relevant to the instant charges. In September 1983, respondent was registered as a real estate salesman with 100 percent Real Estate Incorporated. Robert Sinclair was the qualifying broker for 100 percent Real Estate Incorporated. On or about September 29, 1983, respondent obtained an Offer of Purchase on a home located at 29 S. Lawsona from Linda O'Leary and James T. Bagley along with a check from James T. Bagley in the amount of $500 as earnest money. The resulting contract was entered into evidence as Petitioner's Exhibit 1. On the day the purchasers signed the contract, but after they had signed the contract, the purchasers visited the home and discovered that there appeared to be extensive termite damage. Mr. Bagley was concerned about the termite damage, as was the respondent, and therefore the respondent promised Mr. Bagley that she would hold his check until she could get the termite estimate from Mr. Babcock and check with the termite company to find out how bad the damage was. Although the respondent was able to obtain the termite estimate from Mr. Babcock's office the following day, she was unable to contact the person who had conducted the termite inspection. She also was unable to contact the purchasers. She was unable to contact Mr. Bagley for approximately a week and it was another week before Mr. Bagley went to the house with a contractor to determine how much it would cost to repair the termite damage. The contractor thought that the minimum cost would be $10,000. At that point Mr. Bagley decided that he was no longer interested in the house, and the respondent returned his check. The $500 check was never turned over to Robert Sinclair or 100 percent Realty. Respondent knew she should not have held the check and was aware that by doing so she was, as she stated, "in hot water." However, respondent also believed that the seller had misrepresented the extent of the termite damage and was misinterpreting the terms of the contract. Mr. Sinclair was unaware of the existence of the contract until the end of October, although he had a discussion earlier with the respondent regarding whether an "as is" clause in a contract could override the specific printed provision of the standard contract related to termite infestation. That discussion was obviously related to the contract on the house on Lawsona.
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 finding that the respondent is guilty of violating sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, and suspending respondent's license for a period of three (3) months. DONE and ENTERED this 1st day of May, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of May, 1985. COPIES FURNISHED: Harold Huff, Executive Director Department of Professional Regulation P. O. Box 1900 Orlando, Florida 32802 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Ms. Anne Rockafield 713 Woodward Orlando, Florida 32803 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether or not 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 a business transaction, all in violation of Subsection 475.25(1)(b), Florida Statutes., and, if so, what administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules promulgated thereunder. Respondent, Richard J. Mitchell, is now and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0396926 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as an involuntary inactive salesman with a home address of 2118 South Tuttle Avenue in Sarasota, Florida 33239. On June 6, 1986, Respondent and Janine Martel (Martel) entered into a contract for the purchase and sale of real property, wherein Respondent agreed to convey his one-half interest in a house that Martel had been renting from him in Sarasota. The remaining one-half interest was held by James Ward. (Petitioner's Exhibit 2.) Prior to Respondent's conveyance of the real property to Martel, Respondent assured Martel that there was only one mortgage which encumbered the property and that he would undertake the necessary steps to insure that Martel would be able to assume the underlying first mortgage in favor of Stockton, Whatley, Davin & Company. Respondent also assured Martel that he would resolve any other adverse interest which affected or otherwise encumbered the house. Martel rented from Respondent for an extended period and he periodically advised her regarding the purchase of real property based on his knowledge of real estate transactions and his regular discussions with Martel. As a result of those discussions, Martel placed a great deal of trust and reliance on representations made by Respondent. Martel and Respondent agreed to close on the contract for the purchase and sale of the property on July 11, 1986. On that date, Respondent executed a quit claim deed to Martel conveying his one-half interest in the property to Martel. Throughout the closing, Respondent concealed from Martel the true status of his interest in the property including several recorded liens which encumbered the property at the time of conveyance. By doing so, Respondent misrepresented and concealed from Martel encumbrances which affects the property. Respondent made the above-referred misrepresentations and concealments in order to effectuate the transaction for personal monetary gain. After Martel closed on the purchase, she discovered that persons other than Respondent and James Ward claimed legal and/or equitable interest in the property and that the property was encumbered by a second mortgage in the amount of $3,700.00. Upon Martel's discovery of the misrepresentations by Respondent, Martel initiated a civil suit against Respondent which resulted in her obtaining a default final judgment against Respondent in the amount of $13,864.00 in the Circuit Court of Sarasota County, Florida, on or about August 1, 1988. (Petitioner's Exhibit 4.) Respondent did not appear at the hearing to contest or otherwise refute the administrative charges filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's real estate license for a period of two (2) years. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1990.
Findings Of Fact Upon the consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate salesman in the State of Florida, having been issued license number 0118115. At all times relevant to this proceeding, Respondent's license as a real estate salesman was in an inactive status. Respondent was not employed by Kenneth Ray Wagner (Wagner), Ken Wagner Realty or Computer Real Estate Sales, Inc. at any time relevant to this proceeding. At all times relevant to this proceeding, Respondent was employed by the Hernando County Board of Relators. On about July 8, 1985, Elizabeth L. Tucker (Tucker), a licensed real estate salesman in the employ of Ken Wagner Realty, with Kenneth Ray Wagner (Wagner) acting as qualifying broker, obtained a listing agreement from Horace and Sibyl Gordey (Gordeys) as owners to sell certain residential property at an asking price of $48,000.00 in cash, or terms of $5,000.00 down with balance in wrap-around mortgages. After the Gordeys listed the property for sale, Respondent made an offer to purchase the property for $44,000.00. Terms to be: $5,000.00 down, $3,000.00 of which would be in the form of a promissory note with the balance of the down payment in cash, and with Respondent assuming two (2) existing mortgages in the total sum of approximately $39,000.00, with closing to be on October 22, 1985. After receiving the Respondent's offer, the Gordeys requested that Tucker offer the subject property to Ed and Joy Kimball (Kimballs), the tenants in possession, for the purchase price of $44,000.00, consisting of $5,000.00 down plus the Kimballs assuming the payment of the existing mortgages of approximately $39,000.00. Tucker advised the Gordeys not to make this offer to the Kimballs but to make the original offer of $48,000.00 and let the Kimballs make a counteroffer. The Gordeys rejected this advice. Tucker did not make the offer as instructed by the Gordeys but, as instructed by Wagner, made the $48,000.00 offer which was rejected by the Kimballs. Upon being advised by Tucker that the Kimballs had rejected their offer (thinking that it was the $44,000.00 offer that had been rejected), the Gordeys entered into a contract for the sale of the property with the Respondent. The contract entered into between the Gordeys and the Respondent was an amended version of the Respondent's original offer. The contract was a six (6) months lease with option to purchase, providing for lease payments of $300.00 per month that were not to apply toward the purchase price. The purchase price being $44,000.00, with a $5,000.00 down payment and Respondent assuming the payment of the two (2) existing mortgages in the approximate amount of $39,000.00. The down payment was represented by two (2) promissory notes made payable to the Gordeys for the total amount of $5,000.00, due and payable on March 22, 1986, at closing. Respondent was neither involved in obtaining the listing agreement from the Gordey's nor had any knowledge of any conversations between Tucker and the Gordeys or Tucker and Wagner concerning the listing agreement or the offer to be made to the Kimballs by Tucker, prior to entering into the contract for lease and purchase of the Gordeys' property. The contract for the sale of the property did not close on March 22, 1986 as anticipated, or at any time subsequent to that date. The failure of the contract to close was due to a misunderstanding of a poorly drafted contract by both parties. The misunderstanding of the contract by the parties, Respondent's failure to timely pay rent, the return of the two (2) checks by the bank for insufficient funds given to the Gordeys by Respondent, and Respondent's refusal to vacate the premises after notice to vacate was served on December 24, 1985 by the Gordeys resulted in civil litigation being filed and a judgment being entered against Respondent to vacate the premises, and later a monetary award of $4,800.45 plus costs of $322.50 which the parties had agreed upon prior to the entry of the final judgment. The final judgment merged all claims, including both the Gordeys' and the Respondent's. Before the final judgment was entered, the Respondent had paid into the registry of the court the sum of $1,800.45 which was applied against the judgment. This final judgment has not been satisfied by the Respondent. Although Wagner visited the premises from time to time, only the Respondent and her son resided in the premises. There is no evidence that Respondent entered into the transaction with any dishonest or illicit intent, or with the desire to misrepresent any material fact to the Gordeys. There is no evidence that Respondent intended to defraud the Gordeys when she gave them the checks on insufficient funds, or when she failed to timely pay the rent. There was a legitimate disagreement under the contract.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the demeanor and candor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein as it pertains to the Respondent, Vicki Lynne Burke. Respectfully submitted and entered this 17th day of June, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5435 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as being a conclusion of law. Adopted in Finding of Fact 1 and 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5 with the exception of the date of August, 1985 which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 7 with the exception of the amount of $41,808.88 which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 7 but clarified. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7 but clarified. Adopted in Finding of Fact 8. 10.. Adopted in Finding of Fact 8 with the exception of the closing date which is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 12. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 12 but clarified to show Respondent rather than Respondents. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12 but clarified to show that only Respondent, Vicki Lynne Burke refused to vacate since Wagner was not residing on the premises. 18-19. Adopted in Finding of Fact 12 but clarified. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not have a paragraph numbered 1. Adopted in Finding of Fact 1 and 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9. 7-8. Rejected as not being a Finding of Fact 9. Adopted in Finding of Fact 6 but clarified. 10-11. Adopted in Finding of Fact 8. Rejected as being immaterial and irrelevant. Rejected as not being supported by substantial competent in the record. Adopted in Finding of Fact 11 but clarified. Adopted in Finding of Fact 13. 16-19. Adopted in Finding of Fact 12. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Vicki Lynne Burke, Pro Se 9039 Selph Road Lakeland, Florida 33809 Darlene F. Keller, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
