Findings Of Fact At all times relevant to the charges against her, the Respondent, Phyllis F. Bell, was a licensed real estate salesperson holding license number 0005529 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. Prior to the formal hearing, the Respondent attempted to unilaterally surrender her license, which was not accepted by the Petitioner. The Respondent's last known address is 895 Indiana Avenue South, Englewood, Florida 33533. Notice of hearing and all correspondence regarding these proceedings was mailed to the Respondent at that address, and none of these items were returned to the Division of Administrative Hearings. The Respondent received notice of this proceeding as required by law, and although she requested a continuance, she did not show good cause for continuance of the proceeding. At the commencement of the hearing, the Respondent's motion was denied, and the Petitioner was so advised and permitted to present its case. On October 17, 1979, the Respondent entered into an option-purchase agreement with Eugene Turner, Sr., which agreement granted the Respondent an option to purchase real property known and referred to by the parties as the Van Buren Estate located on Boca Grande Island, Florida. The Respondent occupied this property and lived in one of several dwellings thereon until her option and several extensions thereto had expired. During said time, the Respondent attempted to sell her option at a profit. While living on the property, the Respondent incurred utility and telephone bills in the amount of approximately $5,600 which she was obligated to pay under the terms of the option agreement. After her last extension had expired, Respondent vacated the property, and, although she has acknowledged the debts, she has not paid them.
Recommendation Having found the Respondent, Phyllis F. Bell, not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, take no action against the Respondent. DONE and RECOMMENDED this 14th day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 14th day of October, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Ms. Phyllis F. Bell 895 Indiana Avenue, South Englewood, Florida 33533 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Randy Schwartz, Esquire Department of Legal Affairs 400 West Robinson Street Suite 212 Orlando, Florida 32801
Findings Of Fact On November 29, 1983 Petitioner filed with Respondent an application for licensure as a real estate salesman. By letter dated February 28, 1984 Respondent denied Petitioner's application as follows: The reason for the Commission's action is based on your answer to Questions 6, 7, 14 and 15 of the licensing application and/or your criminal record and disciplinary actions, and on your having unlawfully acted as a real estate salesman or real estate broker in the State of Florida. Specifically, your denial is based upon your May 1975 arrests and convictions for five counts of the sale of unregistered securities five counts of fraudulent sale of securities, five counts of grand larceny, petty larceny, ten counts of conspiracy to commit a felony, and also on disciplinary actions involving your Insurance License, Mortgage Brokers License and Securities License. In 1970 or 1971 Petitioner started Summit Investments, a conpany engaged in selling contracts for deed for developers to investors at a discount. The State of Florida determined that these contracts were mortgages and not securities, and, therefore, all persons selling them must be licensed mortgage brokers. Petitioner accordingly obtained a mortgage broker's license. In 1972 eight mortgage brokers formed S.E.I., Inc., and Petitioner became the president. Everyone selling contracts for deed for that company was licensed under the Mortgage Brokerage Act. Clinton E. Taylor, an investigator for the State of Florida Department of Banking and Finance, Division of Securities, as part of his regular job duties, frequented Petitioner's offices at S.E.I., Inc. to check the advertising and sales pitches being used by the persons selling what the State had classified as mortgages. Taylor monitored Petitioner's operation at Summit Investments and at S.E.I., Inc. for a number of years without receiving any consumer complaint and without finding any basis for any enforcement action against Petitioner. In 1974, a recession year, five persons to whom S.E.I. had made sales did not receive their interest income and therefore filed complaints with the State of Florida Department of Banking and Finance. In May 1975 state criminal charges were filed against Petitioner as president of S.E.I., against the developer, and against the selling broker, basically alleging that what had previously been classified as mortgages were in fact unregistered securities. After trial, Petitioner was adjudicated guilty of five counts of sale of unregistered securities; five counts of fraudulent sale of securities; five counts of petty larceny; five counts of conspiracy to commit a felony, to-wit: fraudulent sale of securities; and five counts of conspiracy to commit a misdemeanor, to-wit: petty larceny. Petitioner was initially sentenced to a total of ten years of incarceration, $20,000.00 in fines, and 15 years of probation. In 1976 Petitioner plead no contest to a federal charge of mail fraud in Tampa, Florida in order to obtain a sentence which would run concurrent with that arising out of his state conviction. In 1977 Petitioner plead no contest to a charge in Palm Beach County of selling unregistered securities. Both of these charges were related to the same incidents forming the basis for the 1975 criminal charges. Based upon the conviction of Petitioner in the 1975 state case, his mortgage broker's license, his securities license, and his insurance license were revoked. By the time of the final hearing in this cause Petitioner had served 16 months in the State prison system and had been released; restitution had been made to the five people who caused the criminal charges to be filed from payment by Petitioner of the fines assessed against him; Petitioner had finished serving his amended probation period; and Petitioner's civil rights had been restored by the State of Florida. From September 1980 to November 1983 Petitioner earned his livelihood selling businesses. Be applied for a real estate license in both 1982 and 1983 and was denied both times. Petitioner seeks a real estate license in order that he can return to selling businesses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to successful completion of the licensure examination. RECOMMENDED and ORDERED this 6th day of November, 1984 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1984. COPIES FURNISHED: Mr. David R. Edstrom 5748 Northeast 16th Avenue Fort Lauderdale, Florida 33334 Lawrence S. Gendzier, Esquire Department of Professional Regulation 400 West Robinson Street Suite 212 Orlando, Florida 32801
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the state of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is now and was at all times material hereto a licensed real estate broker in the state of Florida having been issued license number 0223671 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Sunshine Express Realty, 300 S. Pine Road 262, Fort Lauderdale, Florida 33324. On or about November 22, 1983, an information was filed in the Circuit Court of the 17th Judicial Circuit, Broward County, Florida, charging Respondent with one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes; and two counts of grand theft in the first degree, in violation of Sections 812.014(1)(a), 812.014(1)(b), and 812.014(2)(a), Florida Statutes. On March 27, 1985, a verdict was rendered which found Respondent guilty of one count of insurance fraud by false or fraudulent claim, and two counts of grand theft in the first degree. The Court adjudged Respondent guilty of one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes, and two counts of grand theft in the first degree in violation of Section 812.014(1)(a), Florida Statutes. The Court thereupon sentenced Respondent to a prison term of eighteen months in state prison to be followed by a term of five years of probation. The Respondent does not appear to be possessed of the mental skills necessary to be the master-mind behind a complex fraud scheme, nor has he demonstrated a tendency to be devious, shrewd, calculating, or cunning. To the contrary, the Respondent appears to be gullible and vulnerable to being taken advantage of, which tendencies may account for the circumstances which led to his conviction. The Respondent enjoys an excellent reputation in spite of his criminal convictions and probably would not be a danger to the real estate community if he were allowed to keep his license. The quality of the Respondent's reputation is reflected by the fact that in spite of his convictions, he is currently employed in another broker's real estate company and holds the positions of vice president and head of the commercial department. With the exception of the incident which led to his convictions, the Respondent appears to have demonstrated a high degree of honesty and integrity in his personal and business dealings. The Respondent has excellent teaching skills in the field of real estate and is probably one of the better technicians in the field of real estate.
Findings Of Fact Wallace Adams was a registered real estate salesman with Continental Marketing Services from November, 1975, until May, 1976. The depositions of Robert Cline, Donald Brawdy and Jean Sue Brawdy were received into the record without objection. The depositions of the Brawdys reflect that they received a telephone call from an individual identifying himself as Wallace or Wally Adams. The deposition of Robert Cline reflects that he received a call from an individual whom Cline identified only as Mr. Adams. The deponents indicated that the caller stated he represented Continental Marketing Services, a real estate sales organization. The caller represented that Continental Marketing Services desired to list property which they owned in Florida and Arizona for sale. The caller represented that their property would be advertised nationally and internationally, and that foreign buyers were interested in purchasing such property. Cline indicated that he was called in approximately November of 1975, and the Brawdys indicated that they were first contacted in February of 1976. The caller suggested the potential sales prices of the property to be listed, and the deponents eventually entered into a listing contract with Continental Marketing Services, paying advance listing fees ranging from $350 to $1,125. None of the deponents indicated that they ever met the Respondent, Wallace E. Adams.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Wallace E. Adams as a registered real estate salesman. DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Wallace E. Adams c/o Dory Auerbach 456 NE 29th Street Miami, Florida 33137
Findings Of Fact Respondent Donald E. Swagler is now and was at all times material a licensed real estate broker or broker/salesman in the State of Florida, having been issued license number 0139756, in accordance with Chapter 475, Florida Statutes. At all times alleged in the Administrative Complaint, respondent Donald Swagler was licensed and operating as a qualifying broker for and an officer of respondent Swagler Realty, Inc., which is now and was at all times material a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0169035, in accordance with Chapter 475, Florida Statutes. At all times material, Fern Z. Taylor was a licensed real estate broker with an office in Bonita Springs, approximately a twenty-minute drive south from the offices of Swagler Realty Company in Ft. Myers. On April 10, 1980, Andrew W. Kuchmaner was working part-time as a licensed real estate salesman in the employ (as that term is defined in Section 475.01(2), Florida Statutes) of Swagler Realty Company. Kuchmaner was a new salesman and had not yet had occasion to present a buyer's purchase offer to a client seller. During the early months of 1980, Kuchmaner was also working in the employ of, and receiving a salary from, Jim Walter Homes Company. Philip R. and Susan B. Workman first met Kuchmaner in January or February 1980 while visiting a Jim Walter's Homes sales office in Ft. Myers where he was working in his capacity as a Jim Walter Homes salesman. Kuchmaner advised the Workmans to find and purchase a lot for the Jim Walter home they had selected, and then they could purchase the Jim Walter home. Jim Walter Homes Company requires lot ownership prior to building one of their homes. Prior to selecting a lot, the Workmans had already decided on the Jim Walter home they were going to purchase, and Kuchmaner was going to do the paperwork for Jim Walter. Throughout the first quarter of 1980, the Workmans searched for a lot on which to construct their home in the Bonita Springs area of southern Lee County. During their search, the Workmans came upon a vacant lot with a sign saying it was for sale by Fern Z. Taylor. Upon seeing her real estate for sale sign, the Workmans went to Fern Taylor's office to inquire about the property and seek her assistance in their purchase of a lot in the Bonita Springs area. Fern Taylor advised the Workmans that, in addition to the lot they had already seen bearing her sign, she had Dust that morning listed and had for sale another lot in the Bonita Springs area which they would be interested in seeing. Earlier that same morning, Taylor took a long distance telephone call from a Charles A. Bennett, a resident of Arizona. Bennett said he had a lot he wanted to sell and gave Taylor the price ($7,000) and a description--Lot 20, Block E, Rosemary Park No. 2, in Bonita Springs. Bennett had not seen the property in some time and gave no landmarks or street address for Taylor's guidance. Back in 1925, Rosemary Park No. 2 was subdivided into eight blocks of 24 140' x 50' lots each and two larger blocks containing 16 larger 162' x 300' lots each. One of the smaller lots bore the legal description: "Lot 20, Block E of Rosemary Park No. 2 according to the Plat thereof recorded in Plat Book 6 at Page 30, of the Public Records of Lee County. This is the lot Bennett owned and was trying to sell. It is located on First Street. In 1926, Rosemary Park No. 2 was re-subdivided. The two larger blocks of the prior subdivision were re-subdivided into eight blocks of 24 140' x 50' lots each. Unfortunately, in a stroke of singular lack of vision, the new blocks and lots were designated with the same letters and numbers already assigned to the smaller blocks and lots in the original 1925 subdivision. As a result, there is another lot in Rosemary Park No. 2 designated as Lot 20, Block E: Lot 20, Block E, Rosemary Park, resubdivision of the East 1/2 of No. 2, according to the plat thereof, as recorded in Plat Book 8, Page 32, in the Public Records of Lee County, Florida. This other Lot 20, Block E, is owned by the Fyfes of Maine and is on Fifth Street. Taylor, who was quite busy, quickly checked a plat book in her office to locate the lot and the tax rolls to attempt far to verify Bennett's ownership and left to put her sign on the lot she thought Bennett owned and was trying to sell. Through a combination of the confusing legal description, the incomplete description and paucity of information Bennett gave Taylor, and Taylor's admitted negligence, Taylor put her for sale sign on the Fyfes' lot on Fifth Street instead of on Bennett's lot on First Street. Taylor had no listing agreement with the Fyfes, and the Fyfes' property was not for sale. Fern Taylor drew a map for the Workmans providing them with directions to this purportedly newly listed lot on which she had placed her "For Sale" sign. In reliance on Fern Taylor's map and representations as to her listing agreement, the Workmans drove to the Fifth Street lot and viewed the property as well as Fern Taylor's "For Sale" sign. Approximately one week after seeing the Fifth Street lot, the Workmans summoned Andrew Kuchmaner to Bonita Springs to view the lot and give them his opinion as to how the Jim Walter home they had previously selected would sit on the lot. The Workmans had their minds pretty well made up that they wanted to purchase the Fifth Street lot before summoning Kuchmaner. Kuchmaner never took the Workmans to any property but, upon their request, traveled to Bonita Springs to meet them and was thereupon shown the Fifth Street lot. While viewing the Fifth Street lot, Kuchmaner advised the Workmans that the Jim Walter's home they had selected would sit nicely on that lot. He also told the Workmans for the first time that he had a real estate license and would be glad to help them out with placing an offer for the lot on their behalf. The Workmans used Kuchmaner to make their $6,000 offer on the lot to save time because it was late in the afternoon and they lived in North Ft. Myers. When Fern Taylor first met Kuchmaner, he had been represented to her by the Workmans as a Jim Walter salesman. Kuchmaner went to Taylor's office and requested she prepare the contract because he would have to go all the way back to Ft. Myers to write it up. Taylor provided Kuchmaner with the legal description "Lot 20, Block E, Rosemary Park #2" and advised him he would have to write his own contract. Kuchmaner also proposed to Taylor that they not tell Swagler or Swagler Realty about the sale so they could divide Swagler's quarter of the 10 percent commission ($150 of the total $600 commission). Taylor refused and told Swagler what had happened. Swagler had an angry confrontation with Kuchmaner and was about to fire him, but Kuchmaner begged for a second chance and promised not to try to cut Swagler out of a commission again. Swagler relented and kept Kuchmaner on as a salesman. Kuchmaner filled out a contract on a Swagler Realty form and brought it to Donald Swagler for his review. He advised Swagler that he had gotten the legal description from Fern Taylor and had been to see the property. Swagler generally does not sell property in the Bonita Springs area and is not familiar with the area. He relied on Taylor to provide an accurate legal description of the property being sold. Kuchmaner hand delivered the contract offering to purchase the Bennett parcel to Taylor. Taylor checked the contract before she sent it to Bennett to see that the legal was the same that she had, and it was. She also checked it again when it was sent back from Bennett. Fern Taylor had received and checked the contract, title insurance binder, seller's closing statement and a copy of the warranty deed from Bennett to Workman prior to the closing The Workmans had the property they thought they were purchasing surveyed by William R. Allen, a registered and licensed land surveyor. He received the request to survey the property from Susan Workman. Over the phone, she advised Mr. Allen she had purchased a lot in Rosemary Park, Specifically lot far 20, block E. Mr. Allen informed Mrs. Workman that there are two Block E's in Rosemary Park and that they should be careful. He inquired as to which street she had purchased property on and was told, "We're on Fifth Street." Allen surveyed the Fifth Street lot and certified his survery, using the actual legal description of the Fifth Street (Fyfes') lot. Allen never saw any document with the legal description of the Bennett lot. Fern Taylor did not know that the Workmans had ordered a survey and did not see a copy of the survey until well after the closing. Although she attended the closing, she saw no discrepancies among the documents cursorily reviewed at the closing. Neither did the Workmans or the closing agent. The evidence was not clear whether there was a copy of the survey among the documents at the closing. The lender (Jim Walter Homes) and the title insurance company got a copy of the survey before closing. Neither of their professionals noticed that the legal description on the survey (the Fyfe lot) did not match the legal description on the deed and other documents (the Bennett lot). When a real estate broker has placed his sign ("For Sale") on a parcel of property, it is a reasonable conclusion that he is authorized to sell that parcel. It is customary for a broker to rely on the listing broker to provide a correct legal description for the property they have listed. At no time before the closing did Swagler or Kuchmaner have reason to suspect that the Workmans were purchasing a parcel of property different from the parcel they believed they were purchasing. Neither Swagler nor Kuchmaner were at the closing of the Workmans' purchase. But their presence would not have made any difference. It is not the real estate broker's or salesman's lob to scrutinize the documents being signed to make sure the legal descriptions on all the documents match (unless he has reason to believe the legal descriptions might be wrong.) He has the right to rely on the other professionals--the listing broker (especially since Fern Taylor was familiar with the Bonita Springs area and Swagler was not), the lender's attorney, the title company, the closing agent and, if any, the surveyor and the buyer's attorney. Fern Taylor and perhaps others were culpably negligent. Swagler and Kuchmaner were not. What happened to the Workmans is not their fault.
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 dismissing the Administrative Complaint against respondents, Donald E. Swagler and Swagler Realty Company, in this case. RECOMMENDED this 9th day of February, 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 9th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3502 These rulings on proposed findings of fact are made in compliance with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5. Rejected as contrary to facts found. (Kuchmaner did not "solicit" or "obtain" them.) 6.-14. Accepted and incorporated. 15. Rejected as contrary to facts found. (Taylor's "investigation" or "attempt" to ascertain the legal description was deficiently and negligently performed.) 16.-17. Accepted and incorporated. First sentence, rejected as incomplete ("compare the deed" with what?); second sentence, rejected because it was not proved Taylor had access to a copy of the survey before the closing. Rejected as unnecessary and potentially misleading. (A Final Judgment was entered; Taylor paid the portion against her; the other defendants have not paid the portions against them.) Rejected. Swagler Realty Company was a defendant in the case; Donald E. Swagler was not. 21.-24. Accepted and incorporated. Rejected as not proved whether they "failed," "refused" or "neglected." (The fact is that neither has paid the Workmans any money in satisfaction of the portion of the Final Judgment against Swagler Realty Company.) Accepted but unnecessary. B. Respondents' Proposed Findings Of Fact. 1. Accepted but unnecessary. 2.-10. Accepted and incorporated. 11. Accepted but unnecessary. 12.-23. Accepted and incorporated. 24.-28. Accepted and incorporated. 29. Accepted but unnecessary. 30.-36. Accepted but cumulative. 37.-42. Accepted and incorporated, along with additional findings. 43. Accepted but unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Fl 32802 J. Michael Hussey, Esquire 3443 Hancock Bridge Parkway Suite 501 North Ft. Myers, Fl 33903 Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Harold Huff Executive Director Division of Real Estate Post Office Box 1900 Orlando, Fl 32802
Findings Of Fact Respondent has been a licensed real estate broker salesman in the State of Florida at all times material hereto having been issued license number 0158288 in accordance with Chapter 475, Florida Statutes. On June 10, 1985 a Recommended Order was entered by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118 concerning Respondent, which recommended that "a Final Order be issued suspending Respondent's license for a period of two (2) years and imposing an administrative fine in the amount of one thousand dollars ($1,000)." On July 16, 1985 the Florida Real Estate Commission entered a Final Order imposing the penalty against Respondent which had been recommended by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118. The Final Order provided further that, "This Order shall be effective thirty (30) days from the date of filing, with the Clerk of the Department of Professional Regulation." The Final Order was filed with the Clerk of the Department of Professional Regulation on July 24, 1985. To date, Respondent has not paid the $1,000 fine imposed by the Florida Real Estate Commission in Division of Administrative Hearings Case Number 85- 0118. Petitioner contends that Respondent was required to pay the $1,000 fine within thirty (30) days of entry of the Final Order, referenced above. Rule 21V-10.31, Florida Administrative Code, imposes a thirty-day time limit for the payment of fines imposed by the Florida Real Estate Commission from the date of imposition by order of the Commission.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license-number 0158288. DONE AND ENTERED this 24th day of November, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0989 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 3. Adopted in Findings of Fact 3 and 4. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Roy Ahringer 232 Harmony Avenue Lake Placid, Florida 33852 Harold Huff Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. 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 19th day of May, 1982.
Findings Of Fact Respondent Shankar S. Agarwal is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0312860. The last license issued was as a broker. Respondent Super Realty, Inc., is now and was at all times material hereto a licensed real estate corporation in the State of Florida having been issued license number 0231630. The last license issued was as a broker located in Hollywood, Florida. At all times material hereto, Respondent Shankar S. Agarwal was licensed and operating as a qualifying broker and officer for Respondent Super Realty, Inc. Respondents advertised for sale by newspaper advertisement a VA repossessed property being a four unit apartment building in Fort Lauderdale, Florida. In April, 1985, Warren and Judith Fieldhouse responded to Respondents' ad, and Respondent Agarwal arranged to meet the Fieldhouses at the property. At the property, the Fieldhouses informed Respondents that they wished to purchase a property as an investment and required that any property purchased by them result in income to them as opposed to resulting in a loss for them. Respondent Agarwal specifically represented to the Fieldhouses that the rental character of the neighborhood had been assessed by the Respondents, that Respondents were qualified to appraise the rental character, and that each unit could be rented for $300 or more per month. Respondent Agarwal further represented that the rent for the property would therefore exceed its expenses. The Fieldhouses decided that they wished to purchase the property based upon Respondents' representations. Respondent Agarwal required the Fieldhouses to give him a check for $1,000 a while still at the property before he would return with them to the office of Super Realty, Inc., to draft a purchase contract. Respondent Agarwal and the Fieldhouses went to Super Realty, Inc., where a purchase contract was drafted by Respondent Agarwal and signed by the Fieldhouses. Respondent Agarwal refused to give to the Fieldhouses a copy of that contract. Respondent Agarwal further advised the Fieldhouses that they were to obtain the required liability insurance on the property from his insurance agency and that they were not to use their own insurance agency. The Fieldhouses refused to comply with Agarwal's direction to them. Changes were subsequently made by Respondents to the Fieldhouses' purchase contract. Although those changes were approved telephonically by the Fieldhouses, Respondents never obtained the Fieldhouses signatures approving the changes in the contract. A closing was scheduled by Respondents at the office of Super Realty, Inc., on May 22, 1985. The Fieldhouses inspected the property just before the closing and found that the property's "as is" condition on the day of closing was worse than its "as is" condition on the day that they first saw it and entered into the contract for the purchase and sale of the property. Appliances were missing, and damage was done to the structure. The Fieldhouses objected to the condition of the property on the date of closing. Yet, the closing began. Respondent Agarwal began handing the Fieldhouses individual documents to sign. When he handed them a required financial disclosure statement, the Fieldhouses realized that the mortgage plus insurance and taxes payments would exceed the rental income which Respondents had represented could be projected from the units, that the amount of payments and other representations initially made by the Respondents were not incorporated into the closing documents, and the rental income for the property would not exceed the property's monthly expenses. The Fieldhouses refused to continue with the closing. They demanded copies of the documents that they had signed, but Respondents refused to give them copies of those documents. They demanded a refund from Respondents of their $1,000 deposit, but Respondents refused to refund their money to them. Although the Fieldhouses had signed a note and mortgage on the property before they refused to continue forward with the closing, they gave Respondents no monies toward the purchase of the property to increase the $1,000 earnest money deposit to the required down payment for the property. Respondents knew that the Fieldhouses did not pay the required cash to close on the property, the additional consideration required under the contracts. After the closing, the Fieldhouses made additional demands on Respondent for the return of their $1,000. Respondents refused to return that money to them and further refused to discuss the matter with them further. Respondents submitted the Fieldhouse closing documents to the Veterans Administration claiming a sales commission due to the Respondents in the amount of $5,740, even though Respondents knew that the sales transaction had never closed. Since the Veterans Administration had experienced difficulties with Respondents' complying with their rules and regulations on previous occasions, the VA took the position that the Respondents were not entitled to a commission since no sale had taken place and that the Respondents should refund to the Fieldhouses their $1,000. Respondents sued the Veterans Administration for a sales commission. At the time that Respondents sued for a commission, they knew that they were entitled to no commission since there was no sale. When the Veterans Administration filed an Answer to Respondents' Complaint indicating that it intended to fully defend Respondents' false claim, Respondents voluntarily dismissed their litigation against the Veterans Administration. The VA now has possession of the Fieldhouses' $1,000 deposit which it intends to return to the Fieldhouses. Although Mr. Fieldhouse was a licensed real estate salesman during the time period material hereto, he had not actively worked as a real estate salesman. Therefore, the Fieldhouses relied upon the Respondents as licensees to responsively perform the sales transaction and further relied upon Respondents' representations regarding the property's income and expenses. Respondents never advised the Florida Real Estate Commission that demands had been made for the return of the $1,000 which Respondents held in escrow until such time as they voluntarily forwarded the money to the Veterans Administration despite the Fieldhouses' demands for its return to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing Counts V and VI of the Administrative Complaint, finding Respondents guilty of the remaining allegations in the Administrative Complaint, and revoking Respondents' real estate broker licenses. DONE and RECOMMENDED this 21st day of April 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 21st day of April, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Super Realty, Inc. c/o Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the charges against Respondent, Linda N. Phillips, be DISMISSED. DONE and ENTERED this 16th day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 October, 1981.
