Findings Of Fact The Respondent A. G. Ennis Realty, Inc. is a corporate real estate broker having been issued license number 0133016. The Respondent Thomas E. Ennis is the licensed real estate broker of record for A. G. Ennis Realty, Inc., and he holds broker's license number 0025105. The Respondent Marshall J. Hungerford is a licensed real estate salesman who has been issued license number 0042181. The Respondent Mildred B. Hardin is a licensed real estate salesman holding license number 0130139. In February, 1980, the Respondent Mildred Hardin commenced negotiations with Henry Roehr for the purchase of a lot on which he wished to build a condominium. During these negotiations, the Respondent Marshall Hungerford had deposits from ten parties for units in a condominium to be constructed. These parties wanted to live together, but they did not want to go into the particular location where the condominium was to be built because it was across the street from a public boat ramp. Negotiations on this first lot began to lag, because the owners were in Europe. The Respondent Mildred Hardin suggested that Henry Roehr purchase another lot for his proposed condominium. By letter dated March 18, 1980, Mildred Hardin forwarded a proposed contract for the purchase of Lot 35, Block 357, Unit II Replat, Marco Beach Subdivision. In this letter, the Respondent Mildred Hardin reminded Henry Roehr to keep her informed of what was happening so that Marshall Hungerford could tell his prospective buyers something. The terms of the contract for the purchase of Lot 35, generally, called for Henry Roehr to deposit $38,000 as earnest money against a selling price of $360,000. Mr. Roehr made the required deposit by check to the Respondent A.G. Ennis Realty, Inc., to be held in escrow. After Henry Roehr received assurances from the Respondent Mildred Hardin that the ten persons who had given deposit checks to Marshall Hungerford would purchase condominium units on Lot 35, Henry Roehr by letter dated April 7, 1980, authorized the Respondent Mildred Hardin to release to the seller the signed contract and check for the purchase of Lot 35. In this letter he stated that the only reason he was purchasing the lot was because of the representations that had been made to him that Marshall Hungerford had ten firm purchasers for condominium units. Before this transaction closed, the Respondent Marshall Hungerford accompanied Henry Roehr to two banking institutions for the purpose of obtaining a construction loan for the condominium units. During these visits, the Respondent Marshall Hungerford represented to the banking institutions that he had ten firm purchasers for units in the proposed condominium. The transaction closed on July 13, 1980. When Henry Roehr began to request more information about the prospective buyers of condominium units, the Respondent Marshall J. Hungerford, by letter dated July 29, 1980, forwarded to Henry Roehr the names and addresses of ten individuals who were represented to "have deposited checks with us and have expressed a desire to purchase a condominium, as proposed for the above reference project". In this letter he further stated, "its my personal opinion knowing all of these people that they are certified buyers and are interested and capable of entering into a purchase contract". When the Respondents presented no contracts for the purchase of condominium units from any of the people who were represented to be buyers, Henry Roehr suspected that he had been deceived, and tried to sell some of the condominium units himself. However, when the combined efforts of Henry Roehr and the Respondents failed to pre-sell enough units to warrant construction of a condominium, the plan to build was abandoned. The representations made by the Respondents, Marshall Hungerford and Mildred Hardin, that they had deposits from ten buyers for condominiums were false. These representations were made while they were salesmen employed by the Respondents, A.G. Ennis Realty, Inc., and the broker for A.G. Ennis Realty, Inc., Thomas Ennis. Thomas Ennis was aware of the transaction and participated in it as a broker, and collected a commission on it. Henry Roehr purchased Lot 35 in reliance upon these false representations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, Thomas E. Ennis, Marshall J. Hungerford, Mildred B. Hardin, and A.G. Ennis Realty, Inc., be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of May, 1983, in Tallahassee, Florida. William B. Thomas 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 May, 1983. COPIES FURNISHED: Fred Langford, Esquire Post Office Box 1900 Orlando, Florida 32802 Thomas E. Ennis A.G. Ennis Realty, Inc. 821 South Barfield Drive Marco Island, Florida 33937 Marshall J. Hungerford Post Office Box 432 Marco Island, Florida 33937 Mildred B. Hardin Post Office Box 121 Georgetown, Florida 32039 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Ann Doris Richman is a licensed real estate salesman holding license number 0073487. She was employed by Parman Florida, Inc., and her qualifying broker was John P. Schlicher. On April 20, 1985, Ms. Richman obtained a $1,000. deposit check and a written offer from James A. Angleton, Jr., to purchase condominium unit number 503 at the Charter Club Condominium, 600 Northeast 36th Street, Miami, Florida, at a price of $70,000.00. The offer stated that the transaction was to close within 180 days from receipt of an abstract or, at the purchaser's option, sooner if it was possible to do so. Mr. Angleton was to assume the existing mortgage. The brokerage fee for the transaction was to be $4,200.00. Mr. Angleton informed Ms. Richman that the $1,000.00 check which accompanied his Condominium Deposit Receipt Contract was not good, and would be replaced if the owners of the condominium unit accepted his offer. The owners of the condominium unit resided in Costa Rica and were not readily accessible to Ms. Richman. The $1,000.00 check was brought to the attention of Ms. Richman's broker, Mr. Schlicher, but was not deposited because Ms. Richman had been told that it was not good. The check was kept in the file with the contract. Toward the end of May, 1985, the owners of the apartment came to the Parman office in Miami and were shown the Angleton purchase offer, but the owners would not sell for the $70,000.00 Angleton offered, because it would not have covered the mortgage and the brokerage fee. They made certain handwritten changes to the contract, i.e., that the sales price would be $77,500.00, that the purchaser would deposit an additional $2,000.00 upon execution of the contract, and that the closing date was to be October 1, but sooner if possible. The brokerage fee was reduced to $3,000.00 Ms. Richman then called Mr. Angleton to tell him that the sellers had rejected his offer and made a counter-offer. Mr. Angleton did not come into the office of Parman Florida, Inc. until late June 1985. He initialed the changes the sellers had made on the contract and replaced the original $1,000.00 check with another check, which promptly was deposited. Ms. Richman changed the date at the foot of the contract when the replacement check was received from April 5, 1985 (the date Angleton's original offer had been made and the first $1,000.00 check had been given), to June 24, 1985, the date Angleton accepted the changes made in the contract by the sellers and made the new $1,000.00 deposit. Although the counter-offer included the additional requirement, which the sellers had interlineated by hand and Angleton had initiated, that an additional $2,000.00 deposit would be made upon the execution of the contract, Angleton made no additional $2,000.00 deposit then or at any other time. Ms. Richman never told the sellers the additional $2,000.00 deposit was not received. Angleton has stated various times when he claims to have made the $2,000.00 additional cash deposit the sales contract called for. He has said the cash was provided several days after June 24, 1985 (Tr. 41), and in late May 1985 (Tr. 43). Mr. Angleton and his lawyer, a Mr. Tryson, attempted, in December 1985, to secure the return of the $2,000.00 cash Angleton claims to have given Ms. Richman. In Tryson's letter of December 26, 1985, to Ms. Richman, Tryson stated that the $2,000.00 cash had been given after September 20, 1985. See Finding of Fact 9, post. Mr. Angleton is not only very confused as to the time the deposit was supposed to have been made, but he is wrong on the issue whether he gave a $2,000.00 cash deposit to Ms. Richman. No such thing happened. Ultimately, the sale was cancelled by the sellers because the closing did not take place within the time required by the contract. Mr. Angleton took the position, through his attorney, that the sellers had failed to deliver evidence of good title on a timely basis. The sellers made no claim to the $1,000.00 deposit, and Angleton's lawyer demanded from Ms. Richman on December 26, 1985, the return of the $3,000.00 deposit which Angleton claimed to have made. Angleton received a refund of $1,000.00, the amount of the check which was given on June 24, 1985, and had been deposited by Parman Florida, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: As to Count One, Respondent be found guilty of culpable negligence, reprimanded and fined $250.00, and As to Count Two, that count of the Administrative Complaint should be dismissed. DONE AND ORDERED this 24th day of March, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR 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 24th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3284 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Covered in Finding of Fact 1. Rejected as unnecessary. Covered in Finding of Fact 2. Covered in Finding of Fact 5. Rejected as unnecessary. Rejected as irrelevant to this matter. Covered in Finding of Fact 6. Rejected as subordinate to the findings made in Findings of Fact 6. Generally covered in Finding of Fact 7, but the date the counteroffer was acceptable was June 24, 1985, not June 25, 1985. Covered in Finding of Fact 7. Covered in Finding of Fact 8. Rejected because no $2,000.00 additional deposit was made by Mr. Angleton. Covered in Finding of Fact 6, although there was no proof that all $3,000.00 of the sales commission would have gone to Richman. Covered in Finding of Fact 8. Covered in Finding of Fact 10. Rejected as irrelevant. Rulings on Proposed Findings of Fact Submitted by Respondent Rejected as unnecessary. Covered in Finding of Fact 2. Covered in Finding of Fact 5. Sentences 1 and 2 covered in Findings of Fact 3 and 5. The remainder rejected as unnecessary. Sentences 1 and 2 rejected as unnecessary. Sentence 3 adopted in Finding of Fact 10. Rejected as unnecessary. Covered in Finding of Fact 7. Covered in Finding of Fact 8. Rejected as unnecessary. Rejected as recitations of testimony not findings of fact. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and unnecessary. Rejected as argument, not findings of fact. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate/DPR 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Allen P. Reed, Esquire 901 Brickell Avenue Miami, Florida 33131 Harold Huff, Executive Director Division of Real Estate/DPR 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joe Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the Office of Financial Regulation should approve Petitioner’s application for licensure as a mortgage broker.
Findings Of Fact Petitioner is 42 years old. He served 10 years in the United States Air Force and is a veteran of the first Gulf War. Petitioner is a partner in a small business that offers executive recruiting services, Internet-based real estate advertising services, and mortgage brokerage services. Petitioner’s role in the business is “more on the IT side” and involves “a lot of phone work” as well as “the website, data base management [and] things like that.” On October 14, 2003, Petitioner submitted to the Office an application for licensure as a mortgage broker. Question No. 5 on the application asks whether the applicant has “pleaded nolo contendere, been convicted, or found guilty, regardless of adjudication, of a crime involving fraud, dishonest dealing, or any other act of moral turpitude.” Petitioner answered “no” to Question No. 5. Petitioner’s negative answer to Question No. 5 was based upon his understanding that the question was referring only to financial crimes, such as stealing money or extortion, and crimes involving drugs. Petitioner was not attempting to conceal his criminal history from the Office through his negative answer to Question No. 5. Indeed, at the time he submitted the application, Petitioner knew that the Office would conduct a background screening and learn of his criminal history because he was required to, and did, submit a set of fingerprints with his application. Petitioner’s understanding regarding the scope of Question No. 5 was not reasonable in light of the following definition of “moral turpitude,” which appeared immediately below the question on the application form: “Moral turpitude involves duties owed by persons to society as well as acts contrary to justice, honesty, principle or good morals.” This includes, but is not limited to theft, extortion, use of mail to obtain property under false pretenses, tax evasion, and the sale of (or intent to sell) controlled substances. Petitioner did not contact the Office prior to submitting his application to get clarification regarding the scope of Question No. 5, nor did he discuss the issue with legal counsel. Petitioner’s negative answer to Question No. 5 was a material misstatement of his criminal history. On October 21, 1997, Petitioner pled nolo contendere and was adjudicated guilty of one count of lewd and lascivious conduct for “handling and fondling a child under the age of sixteen years” (a second degree felony), one count of false imprisonment (a third degree felony), one count of aggravated assault (a third degree felony), and three counts of misdemeanor battery. On that same date, Petitioner was sentenced to two years of community control followed by eight years of probation for the lewd and lascivious conduct count, two years of community control followed by three years of probation for the false imprisonment and aggravated battery counts, and one year of community control for the battery counts. The sentences ran concurrently. Petitioner is still on probation for the lewd and lascivious conduct count and, as a result of his conviction on that count, he is a registered sex offender. Petitioner’s probation for the lewd and lascivious conduct count runs through October 2007. The Office first learned of Petitioner’s criminal history after it received the results of the background screening conducted by the Florida Department of Law Enforcement based upon the fingerprints submitted by Petitioner with his application. Thereafter, consistent with its standard practice, the Office requested an explanation from Petitioner regarding his criminal history. In May 2004, Petitioner provided a “Statement of Facts” to the Office in which he described the circumstances of his criminal offenses as follows: In October on a Saturday night [I] went into my stepdaughter bedroom and touch [sic] her private areas. I still think about standing at the door and knowing what I was about to do was wrong but I did it anyway. [My wife] and I were having problems and that was the last straw. I had been sleeping in our room and the tension was very high. [My wife] confronted me about what I had done and I of course denied it. The argument escalated and I lost control of my temper and threatened her if she did not shut up. I went to the bedroom and she followed me this is when I struck her the first time and told her to leave me alone. [My stepson] tried to defend his mother and I spanked him and grab [sic] him by his arms and carries [sic] him to his room. Likewise with [my stepdaughter]. I grabbed the keys to the car to leave and [my wife] told me if I took the car she would call the police and tell them that I had stolen it. I then threw the keys at her and grabbed her and threw her to the ground and told her that she would not want to get the police involved. She picked up her keys and tried to get her and the children out of the house and I would not let them leave. She pleaded with me to calm down and that I take care of the problems that I had created. I brought up the many things that she had done that had led up to that night. She told the kids to go back to their room and prepare for school the next day and that everything would be okay. I told her to go to our room and not say another word and she complied with my request. I eventually calmed down and we went to bed. The next day she took me to work as was the normal routine. Later on that day I was arrested and taken to jail. Petitioner expressed remorse for these offenses, both in the Statement of Facts and in his testimony at the final hearing. His remorse appeared to be sincere. Petitioner’s offenses were not acts of youthful indiscretion. He was 33 years old at the time and, as reflected in the Statement of Facts and as reaffirmed in his testimony at the hearing, Petitioner fully understood at the time that what he was doing was wrong. Petitioner’s offenses were extremely serious and are morally and socially reprehensible. Petitioner's stepdaughter, whose “private areas” he touched, was only 11 years old at the time, and his stepson, who he spanked and grabbed for trying to defend his mother from Petitioner, was only nine years old at the time. As Petitioner acknowledged in his testimony at the final hearing (Tr. 108, 119), the relationship between a stepfather and stepdaughter involves a special amount of trust and sexual contact between an adult and an 11-year-old child -- which is the essence of his lewd and lascivious conduct offense -- is contrary to good morals. Petitioner’s original Order of Probation, entered on October 21, 1997, required him to participate in and successfully complete domestic violence counseling and sex offender counseling. Petitioner testified that he successfully completed those counseling programs. Petitioner has not undertaken any volunteer work or other community service since his offenses. He testified that his status as a sex offender on probation makes it difficult for him to do so. Petitioner remained out of trouble with the law from the time that he was placed on probation in October 1997 through October 2005, when he was arrested for an alleged probation violation. A circuit court proceeding involving the alleged probation violation was still pending at the time of the final hearing. The alleged probation violation was based upon an affidavit of Desiree Washington, who was Petitioner’s probation officer in October 2005. The affidavit stated in pertinent part: [O]n 10-20-04, [Petitioner] was instructed not to have any contact with any child under the age of sixteen unless approved by this officer or the sentencing court and [Petitioner] did fail to carry out this instruction by having contact with four of Heather Fisher [sic] children, as told to this officer on 10-4-05 by Sherri [sic] Connelly of DCF. Petitioner testified that he was never given the instructions referenced in Ms. Washington’s affidavit, and it is questionable whether those oral instructions, if given, are consistent with the written conditions of Petitioner’s probation imposed by the court.1 Those issues are being litigated as part of Petitioner’s probation violation proceeding. The information that Ms. Washington was “told . . . by Sherri [sic] Connelly of DCF” is summarized in a letter from Ms. Connelly to Ms. Washington dated October 4, 2005, which states in pertinent part: In April 2005, I advised [Ms. Fisher] that the children were not to be unsupervised with [Petitioner]. At that time they did admit that he did spend time with the children but always supervised by the mother who knows of his offense. On 9/27/05 I received a new report on the children. All four [sic] the children stated that [Petitioner] does watch them sometimes when their mother goes to work. The boys all reported that he is mean and had hit them with his hand, belt, and paddle. [D.F.] and [J.F.] also reported that he slapped and slammed [J.F.]’s head in to the ground. [J.F.] reported that [Petitioner] is at their house every night when they go to bed but not in the morning. Those allegations were based upon Ms. Connelly’s interviews with Ms. Fisher’s children, who are ages 10, seven, five, and four. Petitioner disputes the allegations in the letter, except for the first and second sentences. Petitioner’s testified that he has never had unsupervised contact with Ms. Fisher’s children and that he has never disciplined or struck the children. That testimony was corroborated by Ms. Fisher’s testimony, and there is no credible evidence to the contrary in the record because the children did not testify at the final hearing and Ms. Connelly’s testimony regarding their statements was uncorroborated hearsay.2 The allegations in Ms. Connelly’s letter, which resulted in Ms. Fisher’s children being removed from her custody, are being litigated in circuit court as part of a dependency proceeding involving Ms. Fisher, her children, and the Department of Children and Families. The allegations in Ms. Connelly’s letter regarding the alleged abuse of Ms. Fisher’s children by Petitioner are not material to the pending probation violation proceeding because Ms. Washington unequivocally testified (Tr. 180-81, 190) that Petitioner was “violated” solely for having contact with the children, and not for the alleged abuse. Petitioner had not been charged with child abuse or any other crime based upon the allegations in Ms. Connelly’s letter as of the date of the final hearing, and it is unknown whether such charges are forthcoming from the local State Attorney. There is no credible evidence that Petitioner’s arrest for the probation violation and/or the removal of Ms. Fisher’s children were in any way connected with the Office’s review of Petitioner’s license application. There was not, as Petitioner implied in his testimony at the hearing, a conspiracy between the Office, his probation officer, and/or the Department of Children and Families against him and/or Ms. Fisher. Petitioner has accepted full responsibility for his criminal offenses, and he appears to be sincere in his efforts to turn his life around. By all accounts, he has been forthcoming with his friends and employers regarding his criminal history, and he goes out of his way to comply with the conditions of his probation. Petitioner's friends testified that they would trust him with their money.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Office of Financial Regulation issue a final order denying Petitioner’s application for a mortgage broker’s license. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2006.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Charles Vincent Suter (Suter), is a licensed real estate salesman having been issued license number 0502107 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesman for Tom Roderick Realty, 2440 Palm Ridge Road, Sanibel, Florida. He has been licensed as a salesman since September 1987. Through a mutual friend, Mary Jane Briney, Suter was introduced in 1988 to Norma Winkler, a resident of Indianapolis, Indiana, who occasionally visited Sanibel Island near Fort Myers on vacation during the winter months. Winkler was interested in renting a three bedroom condominium on the beach in January and February 1989. Briney recommended to Winkler that she rent a unit at an apartment/condominium complex known as Janthinia located on Sanibel Island and that she use respondent as her rental agent. Relying on Briney's recommendation, Winkler agreed to rent the unit and telephoned Suter in September 1988 and requested that he make reservations for her. Although Suter did not normally handle rental transactions, he agreed to assist Winkler and thereafter made reservations with Executive Services, Inc. (ESI), a corporation which managed various units in the Sanibel area including Janthinia. On September 21, 1988, Suter sent Winkler a letter confirming her reservations for Unit 2A at Janthinia with an arrival date of January 26, 1989 and a departure date of February 23, 1989. The total rent, including tax, was $7,091.23. Suter also advised Winkler that she needed to furnish a 10% deposit, or $709.12, within ten days to secure the reservation. On September 30, 1989, Winkler sent a check in the amount of $709.23 made payable to Tom Roderick Realty. The check was deposited into the firm's escrow account the same day. On October 4, 1989, the realty company issued a check in the same amount to ESI as a reservation deposit for Winkler. After the deposit was forwarded to the real estate firm, Winkler changed her date of arrival in Florida from January 26 to January 20 but kept her date of departure the same. On December 9, 1989, ESI confirmed Winkler's reservation for those dates and sent a 10% commission to the realty company. The rental fee was shown as $8,395.42 less the deposit, or a total amount still due of $7,686.30. On January 30, 1989, Suter was paid $352.75 as his share of the commission. Approximately a week before her scheduled arrival, Suter telephoned Winkler and advised her the total amount due was $8,686.30, or $1,000 more than was reflected on ESI's statement. However, Winkler had requested that Suter furnish her with a VCR, liquor, piano and other items so Suter estimated the total bill would be approximately $1,000 greater than the rent still due. On January 20, 1989, Winkler, her sister, niece and a neighbor flew from Indianapolis to Fort Myers. They were met at the airport by Suter and two mutual friends. That same morning, and before Winkler arrived, Suter received by mail Winkler's check in the amount of $8,686.30. When Suter received Winkler's check, he immediately deposited it in his own checking account and not the firm's account. The check was made out to Suter, and not the realty firm, since Winkler had suggested that she make it out in that manner. Upon depositing the check, Suter immediately asked the bank to verify if it was good, and after receiving assurances that it was, he went across the street and wrote a $7,686.30 check to ESI to pay for Winkler's rent. When Winkler, Suter and other members of the group reached Janthinia, Suter advised Winkler that he owed her a refund. Winkler told him not to worry, that she would settle up later. She then had Suter purchase a quantity of liquor and obtain a VCR for her apartment. During one of the social gatherings attended by Winkler and Suter a few weeks later, the two had a falling out. At that point, Winkler telephoned Suter's broker and told him she was due money from Suter. On February 7, the broker confronted Suter around 4:00 p.m. regarding Winkler's allegation. Suter readily acknowledged that Winkler still had money due and that he would immediately pay her. He also acknowledged that the money had been placed in his own bank account rather than the broker's escrow account. Although Suter volunteered to hand carry a check to Winkler that afternoon, she insisted he pay it to the broker who would then write her a check. Suter did so within the hour and Winkler later received a check for $1,000 from the real estate firm. The broker then made an inquiry with the Division concerning Suter's actions, and upon advice from a Division attorney, filed a complaint against Suter. Winkler was described by a longtime friend as a 1,dangerous person", a "troublemaker", and someone who had caused problems for many persons over the years with various types of accusations, most of which were unfounded. Suter denied that he knew it was unlawful to deposit the rent check in his personal account since he considered the transaction as a favor for a friend. He blamed the entire episode on Winkler who became mad at him for paying too much attention to a young widow, and not Winkler, at a dinner party in early February 1989. There was no intent on the part of Suter to use the deposited funds in an illicit manner or to defraud his broker and Winkler. Even so, Winkler's check should have been deposited in the broker's escrow account. There is no evidence that Suter has ever been disciplined by the Division on any prior occasion. Further, Suter's initial reluctance to give a statement to an investigator was founded on the valid reason that he first wished to consult an attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts II, III, and IV of the administrative complaint and that Count I be dismissed with prejudice. It is further RECOMMENDED that respondent be given a $500 fine to be paid within thirty days from date of order. DONE and ENTERED this 8th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1990. APPENDIX Petitioner: 1-3. Partially adopted in finding of fact 1. 4. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 6 and 8. 9-10. Partially adopted in finding of fact 2. 11. Rejected as being unnecessary. 12-13. Partially adopted in finding of fact 6. 14. Partially adopted in findings of fact 7 and 8. 15-16. Partially adopted in finding of fact 10. 17-18. Partially adopted in finding of fact 12. 19-21. Partially adopted in finding of fact 10. Respondent: 1-2. Partially adopted in finding of fact 1. Partially adopted in finding of fact 2. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 5 and 6. 8-9. Partially adopted in finding of fact 5. 10-11. Partially adopted in finding of fact 8. Partially adopted in finding of fact 7. Partially adopted in finding of fact 9. 14-15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 10. Note - Where findings have been partially used, the remainder has been rejected as being cumulative, unnecessary, subordinate, irrelevant or not supported by the more credible and persuasive evidence. COPIES FURNISHED: Steven W. Johnson, Esquire P. O. Box 1900 Orlando, FL 32802-1900 Jerrold S. Stern, Esquire P. O. Box 112 Sanibel, FL 33957 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Darlene Keller, Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900
Findings Of Fact The Respondent holds Real Estate Salesman's License No. 0355517 issued by the Board of Real Estate. Petitioner is employed as a real estate salesman at Norma Star Realty, Key Largo, Florida. During October, 1980, the Respondent applied for licensure as a real estate salesman with the Board of Real Estate. His application was approved, and the Respondent was admitted to the examination, which he passed. The Board of Real Estate issued a real estate salesman's license to the Respondent during December, 1980. In applying for licensure, the Respondent filled out the Board of Real Estate's standard application form. Paragraph 6 of the form sets out the following inquiry: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations) without regard to whether convicted, sentenced, pardoned or paroled? The Respondent answered "No" to this inquiry. The Respondent has been arrested on several occasions. On July 29, 1964, he was arrested in Las Vegas, Nevada, on a charge of sodomy. On August 6, 1964, he was arrested in Las Vegas, Nevada, on a charge of rape. On May 22, 1966, he was arrested in Las Vegas, Nevada, on the charge of notorious cohabitation. On January 31, 1969, he was arrested in Miami, Florida, on the charge of board bill fraud. All of these charges were ultimately dismissed. The Respondent was neither tried nor convicted in connection with any of the charges. The Respondent had been licensed as a real estate salesman in the State of Michigan. While in Michigan, he retained counsel, now deceased, who advised him that all of the Las Vegas arrests had been expunged from the Respondent's record, and that the Respondent could respond in the negative to inquiries as to whether he had ever been arrested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Real Estate, dismissing the Administrative Complaint filed against the Respondent, Michael Timothy McKee. RECOMMENDED this 10th day of December, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 December, 1981. COPIES FURNISHED: Harold W. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Arthur L. Miller, Esquire 9101 S.W. 66th Terrace Miami, Florida 33173 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue The central issue in this case is whether Respondent's yacht and ship salesman's license should be disciplined for the reasons set forth in the notice of intent to revoke license dated June 14, 1994.
Findings Of Fact The Department is the state agency charged with the responsibility to regulate persons pursuant to Chapter 326, Florida Statutes. On April 30, 1993, the Department received an application for a yacht and ship broker or salesman license (the application) submitted by Respondent, Thomas I. Davis, Jr. The application provided, in pertinent part: LICENSES AND CERTIFICATES: Have you now or have you ever been licensed or certified in any other profession such as real estate, insurance, or securities in Florida or any other state? Yes No If you answered yes, please describe: Profession License # First Obtained Status of License (a)Has any license, certification, registration or permit to practice any regulated profession or occupation been revoked, annulled or suspended in this or any other state, or is any proceeding now pending? Yes No (b) Have you ever resigned or withdrawn from, or surrendered any license, registration or permit to practice any regulated profession, occupation or vocation which such charges were pending? Yes No If your answer to questions (a) or (b) is Yes, attach a complete, signed statement giving the name and address of the officer, board, commission, court or governmental agency or department before whom the matter was, or is now, pending and give the nature of the charges and relate the facts. In response to the application questions identified above, Respondent entered the following answers: "No" as to questions 11, 12(a), and 12(b). As a result of the foregoing, Respondent was issued a yacht and ship salesman's license on May 10, 1993. Thereafter, the Department learned that Respondent had been censured by the NASD. In a decision entered by that body accepting Respondent's offer of settlement, Respondent was given a censure, a fine of $20,000.00, and a suspension in all capacities from association with any member for a period of two (2) years with the requirement that at the conclusion of such suspension that he requalify by examination for any and all licenses with the Association. The censure also provided a specific payment plan for the $20,000 fine which was assessed. To date, Respondent has not complied with that provision of the settlement. From 1973 through 1991, Respondent was registered with several different firms pursuant to Chapter 517, Florida Statutes. Additionally, Respondent has been licensed to sell securities in the following states: California, Colorado, Connecticut, Delaware, Idaho, Illinois, Louisiana, Maine, Maryland, Nevada, and New York. Respondent has also been licensed in Washington, D.C. and Puerto Rico. Respondent has been a licensed stock broker with the Securities and Exchange Commission since 1971. Respondent answered questions 11 and 12 (a) and (b) falsely. Respondent knew he was licensed to sell securities and knew of the sanction from the NASD at all times material to the entry of the answers. Pursuant to Rule 61B-60.003, when the Department receives an application for licensure which is in the acceptable form, it is required to issue a temporary license. Had the Respondent correctly answered questions 11 and 12 on the application, the Department would not have issued Respondent's license.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, enter a final order dismissing Respondent's challenge to the notice of intent and revoking his license. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4258 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 9, 11, 13, and 15 through 17 are accepted. Paragraph 10 is rejected as repetitive. Except as to findings reached above, paragraphs 12 and 14 are rejected as irrelevant. It is found that Respondent falsely answered question 11. Rulings on the proposed findings of fact submitted by the Respondent: Respondent's proposed findings of fact are rejected as they do not comply with Rule 60Q-2.031(3), Florida Administrative Code. However, to the extent findings do not conflict with the findings of fact above, they have been accepted. Such proposed findings of fact are paragraphs: 1, 7 and 8. The remaining paragraphs are rejected as they are not supported by the record cited (none), irrelevant, argument, or contrary to the weight of the credible evidence. COPIES FURNISHED: Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Harper Field Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David M. Goldstein LAW OFFICE OF DAVID M. GOLDSTEIN 100 S.E. 2nd Street Suite 2750 International Place Miami, Florida 33131
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 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 21st day of October 1985.
The Issue Petitioner seeks attorney's fees and costs as a prevailing small business party pursuant to Section 57.111, F.S. Appropriate stipulations have eliminated all but this central issue: whether the underlying enforcement proceeding had a reasonable basis in law and fact at the time that it was initiated or whether special circumstances exist which would make the award unjust.
Findings Of Fact Nicholas A. Musashe is a licensed real estate broker in the State of Florida and was the respondent in the case, Department of Business Regulation, Division of Real Estate v. Nicholas Musashe, case no. 91-4463. During the relevant period, Musashe owned a business, Apartment Locator Specialists, with a principal office in Orlando, Florida. As stipulated by the parties, Nicholas A. Musashe is a "small business party", as provided in Section 57.111(3)(d), F.S. The underlying agency proceeding was based on a document sent to the Governor's office and forwarded to the Department of Professional Regulation on October 29, 1990. The document is a one-page copy of a newsletter from Apartment Locator Specialists. Portions of the newsletter are underlined, and at the bottom there is this handwritten notation: "Why are these people allowed to go on month after month breaking real estate laws? Are they brokers or not? This is a formal complaint! [signature illegible] 'Republican'." (p. 10, Investigative Report) The newsletter includes this text: To keep you posted on our lucky drawings -- Robin DeMorse at Summer Place Apartments posted a whopping $100 and Pam Hyde at Monterey Crossings once again received a check for $50 in asking those clients they were unable to help to call us at Apartment Locator Specialists. Remember these numbers -- 657-8282, 345-1000 and in Kissimmee 846-8808. These numbers could mean cash to you next month. Apartment Locator's helper of the month is Melodi Hanson of the Villas. Her name was drawn for always calling us to let our consultants know when a client rented or stopped by. A $50 gift certificate at the Florida Mall was her choice for that extra shopping spree. Thanks for being so considerate, Melodi. (page 10, investigation file) According to the Investigative Report, interviews were conducted between January 28 and February 5, 1991, and included Nicholas Musashe and the women mentioned in the newsletter. Musashe denied compensating unlicensed individuals for making referrals, but said that the drawings were "thank you rewards" for calling his office. Melodi Hanson, Pam Hyde and Robin DeMorse are each unlicensed employees of their respective apartment complexes. They confirmed that their names were drawn at random and that each time they called Apartment Locator Specialists their names were entered for the drawing. Apartment Locator Specialists had contracts with the respective apartment complexes and received a commission when their referrals rented an apartment. The apartment complex employees were encouraged to call Apartment Locator Specialists to report on the outcome of the referral. Each of the three women signed an affidavit stating she was not operating as a licensee as defined in Chapter 475, F.S., and would not so operate in the future without complying with the requirements of law. The investigative report form lists these alleged violations: "475.25(1)(e) Violation of a rule; Rule 21V-10.019 lotteries". There are two uniform complaint forms in the investigative file. One lists the same violations as on the investigative report form; the other lists, "475.42(1)(a) - unlicensed activity". An administrative complaint was drafted and was presented to the Florida Real Estate Commission Probable Cause Panel on February 19, 1991. The panel found cause and voted to proceed with administrative action in accordance with the proposed administrative complaint. The administrative complaint, dated February 20, 1991, makes factual allegations based on the investigation described above. Two counts of violations are alleged: COUNT I Based upon the foregoing, the 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 in violation of Subsection 475.25(1)(b), Florida Statutes. COUNT II Based upon the foregoing, the Respondent is guilty of having employed persons as a salesman [sic] who were not the holders of a valid and current license as a salesman in violation of Subsection 475.42(1)(c), Florida Statutes and therefore in violation of Subsection 475.25(1)(e), Florida Statutes. The case was referred to the Division of Administrative Hearings (DOAH) and was set for hearing. It was later continued and was placed in abeyance while the parties presented a stipulation to FREC. By this time Musashe had informed the agency attorney that he had sold his business and was pursuing other business interests. FREC rejected the stipulation on December 3, 1991, after Respondent Musashe made substantial changes in the standard stipulation text. Shortly thereafter, Musashe retained William M. Furlow, Esquire, and the case was again set for hearing by DOAH. On July 7, 1992, Musashe, through counsel, filed his motion to dismiss the administrative complaint. The motion to dismiss argued the agency's burden of proving the charges by clear and convincing evidence. It argued that Count I was unsupported by any allegations in the complaint or by any actual facts. The motion also argued that Count II was not supported by the allegations; that winning a drawing did not establish an employment relationship; that the women who were employed by the apartment complexes were exempt from Chapter 475, F.S., pursuant to Section 475.011(4), F.S.; and that a FREC legal advisor had issued an opinion that the type of referral business conducted by Apartment Locator Specialists did not require licensure. The motion also pointed out that although Section 475.25(1)(h), F.S., prohibits paying a fee to a nonlicensed person for referral of business, the administrative complaint did not include that charge. Moreover, since the apartment complex employees were exempt from Chapter 475, it would not have been a violation to give them a fee. And finally, they were not given a fee, but rather a chance to win a prize, not for referrals, but for mere informational telephone calls. The administrative complaint recites facts which are substantially consistent with the facts outlined in the motion to dismiss. For example, paragraph 8 of the complaint states: 8. The Respondent admitted that each time an employee of a contracted leasing office calls his office, that individual's name is put into a fish bowl, from which the drawing is held. The Respondent stated that the name is entered whether or not the client rents the apartment. The parties agreed to further abeyance of the proceeding before DOAH and to presentation of the motion to dismiss directly to the FREC. On August 18, 1992, FREC granted Respondent's motion and the administrative complaint was dismissed. The Final Order was entered on September 2, 1992. As stipulated by the parties, Nicholas A. Musashe incurred reasonable and necessary legal fees in the amount of $6,756.25, and costs in the amount of $858.62, for a total of $7,614.87.
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
