The Issue The issue posed for decision herein is whether or not the Respondent's license to practice real estate should be revoked based on conduct set forth hereinafter.
Findings Of Fact Based upon the testimony adduced at the hearing and the witnesses' demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Based on its Administrative Complaint filed herein dated July 28, 1981, the Florida Real Estate Commission (Petitioner) seeks to revoke Respondent's license to practice real estate based on his having been found guilty of a crime involving moral turpitude and fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes (1979), and his (Respondent) having been confined to a state or federal prison, in violation of Subsection 475.25(1)(m), Florida Statutes (1979). The Respondent, Joel L. Steiner, is a registered real estate salesman and has been issued License No. 0150824 by the Petitioner. The Administrative Complaint filed herein alleges that during the period June 1, 1976, and continuing through March 23, 1977, Respondent, for the purpose of executing a scheme and artifice to defraud the public, caused mails and other matters to be sent from the New York office of Crown Colony in New York, New York 1/ , to be placed in post offices and authorized depositories for mail matter to be delivered by mail by the United States Postal Service. As a result of those actions, Respondent was indicted by the United States District Court for the Southern District of New York and charged with a violation of Title XVIII, United States Code, Sections 1341 and 1342, to wit, the use of the mails in a scheme to defraud. Following a trial, Respondent, on January 28, 1981, was found guilty as charged of the offense of the use of the mails in a scheme to defraud and was committed for imprisonment for a period of eighteen (18) months and ordered to pay a fine to the United States in the amount of $12,000.00. (Petitioner's Exhibits 2 and 3 and testimony of Postal Inspector John Muhelberg.) Respondent appeared through counsel; however, no evidence was offered by Respondent in defense of the charges after Petitioner's case in chief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's License No. 0150824 to practice real estate as a salesman be REVOKED. RECOMMENDED this 18th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1982.
The Issue Whether or not the Respondent, William J. Windsor, should have his real estate license no. 0158593 revoked or suspended, or otherwise subject to discipline, for the answers given to question six in the application of the Respondent, William J. Windsor, for registration as a real estate salesman filed with the Petitioner, Florida Real Estate Commission, which answer allegedly caused the Respondent, William J. Windsor, to obtain his registration by means of fraud, misrepresentation and concealment, in violation of 475.25(2), F.S.; and further for allegedly failing to fully and accurately answer inquires pertinent to his qualifications of honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing as propounded, and is required by 475.17 and 475.18, F.S. and would therefore be guilty of violations of 475.25(1)(d), F.S. Whether or not the Respondent, William J. Windsor, should have his real estate license no. 0158593 revoked or suspended, or otherwise subject to discipline, for the answers given to question 15(a) in the application of the Respondent, William J. Windsor, for registration as a real estate salesman filed with the Petitioner, Florida Real Estate Commission, which answer allegedly caused the Respondent, William J. Windsor, to obtain his registration by means of fraud, misrepresentation and concealment, in violation of 475.25(2), F.S.; and further for allegedly failing to fully and accurately answer inquires pertinent to his qualifications of honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing as propounded, and is required by and 475.18, F.S. and would therefore be guilty of violations of 475.25(1)(d) , F.S.
Findings Of Fact The Respondent, William J. Windsor, is now and at all times material to the complaint was a registered real estate salesman with the Florida Real Estate Commission and is and was so operating and registered in the employ of Watson Corporation of Jacksonville, 6206 Atlantic Boulevard, Jacksonville Florida. The application of the Respondent, William J. Windsor, for registration as a real estate salesman was subscribed and sworn to on January 14, 1976, and filed with the Florida Real Estate Commission on January 15, 1976. The Florida Real Estate Commission approved the application for William J. Windsor to become a real estate salesman on February 3, 1976. The application for registration as a real estate salesman contained within it a question no. 6 which provides as follows: "6. 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 offences (but not parking, speeding, inspection or signal violations), without regard to whether convicted, sentenced, pardoned or paroled?" The Respondent, William J. Windsor, answered this question no.6 in the negative by placing the word "no" in the space provided. At the time of the execution of this application, the Respondent, William J. Windsor, knew or should have known that his answer to question six was false and untrue since he had failed to disclose and explain certain charges and arrests. The first matter was an arrest on September 11, 1973, by the Sheriff's office of St. Johns County, Florida under dockets no. 73-626, 73-626A and 73- 626B, three charges of the offense of "issuing a worthless check". The Respondent, William J. Windsor, also failed to reveal an arrest of October l8, 1973, by the Sheriff's office, St. Johns County, Florida, case no. 121992, on a charge of "contempt of court". The Respondent, William J. Windsor, did not reveal an arrest on October 19, 1973, by the Sheriff's Office, Polk County, Florida, on charges of "embezzlement-misapplication of funds, making false reports and furnishing false statements". The Respondent, William J. Windsor, failed to reveal in his answer to question six, that an order was entered which withheld the adjudication of guilt and placed the Respondent, William J. Windsor, on probation for a period of five (5) years', and an order of restitution after he had entered a plea of nolle contendre to the offense of misapplication of funds (five counts), case no. CF-73-2357, Circuit Court, Florida, May 1, 1974, in the Circuit Court of the Tenth Judicial Circuit in and for Polk County. This plea was entered as an agent, officer, an employee of Mar-Bil Enterprises, Inc. The probation that was received was modified by orders of the committing court and a copy of those orders, whose contents are admitted as fact, may be found as Petitioner's Exhibits #1 & #2. In the subject application for registration as a real estate salesman, William J. Windsor, the Respondent, answered a question no. 15(a) which question provided as follows: "15(a). Has any license, registration, or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, procession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" The Respondent, William J. Windsor, answered this question 15(a) with the word "no", inserted in the place provided for response. At the time the Respondent, William J. Windsor, gave the answer to question 15(a), he knew or should have known that the answer was false and untrue since he had failed to reveal, disclose and fully explain the revocation of his contractor's license (RG- 00l2898) on January 8, 1975, by the Florida Construction Industry Licensing Board pursuant to Respondent-licensee, William J. Windsor, having pled guilty to eleven (11) charges of violation of 468.112, F.S., at a formal hearing held on December 20, 1974, Hillsborough County Courthouse, Tampa, Florida. A copy of the notice of revocation of the Respondents license held with the Florida Construction Industry Licensing Board, is Petitioner's Exhibit #3, admitted into evidence and accepted as fact. The date of this letter of notification is January 29, 1975. The Respondent, William J. Windsor, tried to explain his failure to answer questions 6 and 15(a) above, by stating that he had made numerous inquires of the Florida Real Estate Commission about the possibility of being granted a real estate salesman's license in view of his plea of nolle contendre and probation for the aforementioned offenses. The summary of the contact with the Florida Real Estate Commission, put concisely, would be that the Real Estate Commission did not foreclose the possibility of the Respondent being granted a real estate salesman's license; however, no one in the Florida Real Estate Commission office indicated that the Respondent would not be required to answer questions 6 and 15(a) completely. Respondent's Exhibit #1 is a copy of a letter of May 30, 1975, from the probation officer of the Respondent, addressed to the Florida Real Estate Commission This letter concerns the possibility of Respondent, William J. Windsor, obtaining a real estate salesman's license, and is a part of the contact which the Respondent had with the Florida Real Estate Commission.
Recommendation It is recommended that the registration of the Respondent, William J. Windsor, as a real estate salesman, license no. 0158593, be revoked. DONE AND ORDERED this 16th day of March, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 William J. Windsor c/o Warson Corporation of Jacksonville 6206 Atlantic Boulevard Jacksonville, Florida Joseph C. Black, Esquire 1106 Blackstone Building Jacksonville, Florida 32202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
Findings Of Fact At one time respondent Raymond M. Ewing, Margaret A. Helms, and Charles J. Hess, Jr., all worked together as real estate salespersons for Jean Bryant Realty in Pensacola. At least since May of 1977, Mr. Ewing has been licensed as a real estate broker. He holds license number 0025647. Petitioner's Exhibit No. 1. Messrs. Hess and Harrison, who lives in Chicago, Illinois, had organized H & H Homes of Pensacola, Inc., and engaged in land development, and in building and selling houses north of Pensacola. Respondent Ewing knew that Hess and Harrison were in business together, although he did not know the particulars of their arrangements. (T. 65) Through Mr. Hess, Mr. Ewing met Arthur J. Harrison, who rented a townhouse he owned at Pensacola Beach for two weeks in 1978 or 1979. Mr. Hess had moved to Ocala, Florida when Mr. Ewing got a telephone call from him. Hess said he was back in Pensacola for a visit, and told Ewing that he needed money and would like to sell or mortgage "a house that he and Art [Harrison] owned on Ninth Avenue." (T. 67) Respondent Ewing inquired of Bob Barr, a loan officer at Pensacola Loan and Savings, about "putting a second on this house on behalf of Mr. Hess to generate some capital for him." (T. 68) Mr. Barr said he would need a "title letter." After Ewing reported to Hess that a title letter would be necessary, Hess asked him to obtain one, and Ewing requested Wesley Mayhall's opinion as to the title. Eventually Mr. Mayhall informed Mr. Ewing that title to the property was in Arthur J. Harrison. The property at 3937 North Ninth Avenue in Pensacola (the property) did indeed belong to Arthur J. Harrison, grantee on a warranty deed executed by George J. Wylie on March 18, 1977, and duly recorded in the public records of Escambia County on April 14, 1977. Exhibit to Deposition of Arthur J. Harrison. Undaunted, respondent Ewing arranged for a longtime friend, Robert William Harris, to look at the house, offering to sell it to Harris for $10,000.00 cash and assumption of an outstanding mortgage. The day Ewing showed Harris the house, Hess was also present, and Ewing told Hess the title was in Harrison. In reply, Hess said to Ewing, "'I have a deed from Arthur Harrison conveying it to H & H Homes.'" (T. 69) Mr. Harris agreed to buy the house for $8,000.00 down, assuming the outstanding mortgage. Two or three weeks later Hess appeared at Ewing's office and, according to Ewing, Hess said, "'Here is the deed to Harris,' or 'I have the deed for Harris, or some play of words around that. ['[Witness it.[']" (T. 70) Respondent Ewing obliged, signing a deed dated November 1, 1980, drawn in favor of H & H Homes of Pensacola, Inc., and purportedly executed by Arthur J. Harrison, whose signatur,e Ewing purported to witness. Ewing testified that he was in the middle of a telephone conversation and was holding the receiver in one hand when he signed with the other. Harrison did not in fact sign the deed or authorize its execution. At the time of the hearing, Mr. Ewing still "d[id]n't believe that" (T. 87) Hess had admitted to him forging Harrison's signature. Charles H. Hess, Jr., as president of H & H-Homes of Pensacola, Inc., executed a warranty deed to the property in favor of R. W. Harris on November 10, 1980. Mr. Ewing delivered the deed to Mr. Harris that day in Mr. Harris' office in exchange for two cashier's checks, one in the amount of $6,000.00 and one in the amount of $2,000.00. Hess got the proceeds of the larger cheek. Mr. Ewing told Mr. Harris he would deposit the smaller cheek in escrow, for disbursal to Hess, once the house was painted. In fact, Mr. Ewing pocketed the $2,000.00. (T. 82, 83) At hearing, he offered this explanation: [Hess] owed me something like $2,000.00. And it was one of those deals he was up here one day, he needed some money. I had some and I just said, okay, I can let you have some fora few days and you'll have to give it back to me, but this preceded the incident by, you know, some length of time. (T. 34) Mr. Ewing did not ask Hess for a promissory note when he made the loan supposedly repaid with Harris' check. (T. 80) After the LH house had gone unpainted for some time, Ewing paid Harris $500.00, telling Harris that he had already paid Hess the other $1500.00. Respondent Ewing "did not prepare a sales agreement . . . [in connection with the conveyance to Harris because he] wasn't thinking anything was going to come back to haunt [him]." (T. 84) At some point in "early November" of 1980, Mr. Harrison spoke to Mr. Ewing by telephone. Harrison had learned earlier, from the holder of the mortgage on the property, that Ewing had inquired about a purchaser's assuming the mortgage. When Harrison told Ewing he was not interested in selling the property, Ewing told Harrison that Hess had already accepted earnest money (although this was not accurate.) On Mr. Harrison's behalf, Margaret A. Helms rented the property in February or March of 1981. Mr. Harris noticed the tenant moving in and stopped to talk to the lady, who told him that she was renting from Ms. Helms. Mr. Harris did not confide in the tenant, but went to see his lawyer. On May 18, 1980, Mr. Ewing secured an owner's title insurance policy covering the property for Mr. Harris. Eventually Mr. Harris filed suit to quiet title and won. On appeal, however, Mr. Harrison prevailed and the judgment was reversed. Litigation is ongoing. To date, Mr. Harrison has expended some $6,000.00 in attorney's fees and costs.
Recommendation It is, upon consideration of the foregoing, RECOMMENDED: That petitioner reprimand respondent, impose an administrative fine of one thousand dollars ($1,000.00), and suspend his license for one year. DONE and ENTERED this 8th day of January, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Post Office Box 1900 Orlando, Florida 32802 Barry Z. Rhodes, Esquire 8198 Squire Road Pensacola, Florida 32514 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate 400 W. Robinson Street Orlando, Florida 32802 APPENDIX Petitioner's proposed findings of fact I through 4, 6, 7, and 10 have been adopted,, in substance, as being clearly and convincingly established by the evidence. Petitioner's proposed finding of fact 5 was not clearly and convincingly established, although the evidence suggested that the transaction had not closed when Harrison told Ewing the property was not for sale. The evidence as to Ewing's financial interest in the transaction is dealt with in paragraph 7 of the recommended order. Respondent's proposed order of disposition contains no proposed findings of fact so labelled. In general, Mr. Ewing's testimony has not been credited. The evidence did not show that he "did not know the instrument was allegedly forged" and did not prove that he "did not witness an act of forgery."
Findings Of Fact Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted. Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence. Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details. Paragraph 6: Rejected as contrary to the greater weight of the evidence. Paragraph 7: Accepted in substance, with additional findings for clarity and completeness. Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence. Findings Proposed by Respondent: All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent. Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details. Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS 816 BROAD STREET JACKSONVILLE, FLORIDA 32202 DARLENE F. KELLER, EXECUTIVE DIRECTOR DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issue in Count I is whether Section 475.42(1)(j) absolutely prohibits a broker or salesman from filing a lien or other encumberance against real property to collect a commission. The issue in Count II is whether the Respondents violated a lawful order of the Commission by failing to remove the motion of lis pendens contrary to Section 475.25(1)(e), Florida Statutes.
Conclusions Section 475.42(1)(j), Florida Statutes, provides as follows: "No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose." Clearly the Respondents placed or caused to be placed the notice of lis pendens in question. A notice of lis pendens is clearly an "other writing which purports to effect the title of, or encumber, any real property." The Florida Real Estate Commission argues that this provision is an absolute bar to the filing of any lien for the purpose of collecting a commission. The Respondents argue that this provision is not an absolute bar and there are circumstances when a broker may file a notice of lis pendens. They also assert that the notice of lis pendens falls within the exception because the Circuit Court refused to remove the notice of lis pendens upon motion of the property owner. Lastly, it is argued that the notice was filed by counsel for the Respondents in good faith on an action at law and that this mitigates their action even if there was a violation. The language of Section 475.42(1)(j) cannot be read to absolutely prohibit a broker from obtaining a lis pendens. When given this construction, it effectively denies brokers and salesmen access to the courts for redress of injury as provided in Article I, Section 21 of the Florida Constitution. Section 475.42(1)(j) is a complex provision which is subject to two interpretations. One interpretation would prohibit a broker or salesman from filing an encumberance if the same were known to him to be false, void or not authorized by law; if not authorized to be upon the public records; if not executed in the form entitling it to be recorded; if the execution of recording thereof has not been duly authorized by the owner of the property; if maliciously (filed); if for the purpose of collecting a commission, if to coerce payment of money to the broker or salesman or other person; or if for any other unlawful purpose. This first interpretation would consider each clause a separate limitation on filing an encumberance. The facts analyzed under this interpretation do not show any knowledge by Respondents that the lis pendens was false, void or not authorized to be filed or not on a form entitling it to be recorded. The facts do not show that Respondents filed the lis pendens maliciously, for the purpose of collecting a commission, or for the purpose of coercing payment of money to the broker or salesman, or for any unlawful purpose. The nature of lis pendens would not require the owner's authorization of execution for recording. The facts show that the lis pendens was filed by Respondent's attorney in conjunction with a suit brought by the Respondents against Perrin. The record also shows that the circuit court determined that the lis pendens was recordable when it denied the motion to remove it. The notice of lis pendens was neither malicious, coercive or for the purpose of collecting the commission. The notice was for the purpose of perfecting the claim against the property for execution of the judgment if the Respondents prevailed in the suit. Executing on a judgment is different from collecting the commission or coercing payment. Under this interpretation the Respondents have not been shown to violate Section 475.42(1)(j). A second interpretation would read the clause, ". . . if the same is known to to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution of recording thereof has not been authorized by the owner of the property. . ." as the first of two criteria to be met to establish a violation. The second criteria would consist of proof that the encumberance was recorded maliciously or for the purpose of collecting a commission, or to coerce payment of money to the broker or salesman, or for any unlawful purpose. Again the facts do not show there was knowledge by the Respondents of the falsity, or impropriety of the notice of lis pendens, as stated above. Again the facts show that the lis pendens was filed in conjunction with a law suit pending between the Respondent and the property owner, and that the court before which the action was pending refused to remove it. The file of the notice by Respondent's counsel was a legitimate method of perfecting the Respondent's claim should they prevail and obtain judgment. The facts do not indicate that the filing of the notice was malicious, coercive or for the purpose of collecting a commission. Under either interpretation, Respondents did not violate the statute. COUNT II The Respondents are charged in Count II with violation of Section 475.25(1)(d), Florida Statutes, which provides that the registration of a registrant may be suspended for up to two years for violation of a lawful order of the Commission. Clearly, the facts reveal that the Respondents had a substantial interest involved in the litigation with Perrin. The order, of the Florida Real Estate Commission to remove the notice of lis pendens substantially affected their rights in this litigation. Therefore, any final order directing Kay to remove the notice of lis pendens should have issued after an opportunity for hearing pursuant to Section 120.57, Florida Statutes. The evidence reveals that the Florida Real Estate Commission did not notice a hearing under Section 120.57, and therefore its order cannot be "lawful." The provisions of Section 475.25(1)(d) require that registrants not violate lawful orders. The Respondents have not violated Section 475.25(1)(d), Florida Statutes, by not removing the notice of lis pendens as directed by the order of the Florida Real Estate Commission.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken against the Respondent, Sam Kaye and Sam Kaye, Inc. DONE and ORDERED this 23rd day of September 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William E. Boyes, Esquire Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A. Post Office Box 3466 West Palm Beach, Florida 33402
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 On January 17, 1975 Respondent pleaded guilty in the U.S. District Court for the Middle District of Florida, Jacksonville Division, of knowingly and unlawfully aiding and abetting Larry E. Williams in the receipt of compensation, that is, a political contribution in the amount of Five Thousand Dollars ($5,000) for Edward J. Gurney with intent to unlawfully defeat the purposes of the Department of Housing and Urban Development, a Department of the United States; in violation of Title 18 USC 1012 and 2(a) as charged in Count I of the Information. The court adjudged Respondent guilty as charged, withheld the imposition of sentence and placed Respondent on probation for a period of one year. Violation of the above provisions of the U.S. Code constitutes a misdemeanor. In defense of his conduct Respondent testified without contradiction that he was a member of a venture called Minorca Arms formed for the purpose of building apartments to be financed by FHA. The approval of the application for financing had been delayed by FHA and one member of the venture, Walton, who was heading the venture, told Respondent that he, Walton, thought that if a $5,000 donation to Senator Gurney's campaign in a cash contribution was made to Williams it might assist in getting the commitment out of FHA. Shortly thereafter Williams, who Respondent never saw before or after the visit, came to Jacksonville, was picked up by Walton, brought by Respondent's office where an envelope containing $5,000 was picked up by Williams. No mention of the FHA commitment or anything related there to was made during the few minutes Williams was in Respondent's office. The project was subsequently approved by FHA as was two additional projects subsequently applied for. Respondent has been a registered real estate broker in Florida for approximately 30 years. Since 1947 he has been engaged in sales, promotion, development, and construction of real property. During this period he has had business dealings with Stockton, Whatley, and Davin, Inc. involving millions of dollars. He enjoys an excellent reputation in the community for his work in community affairs, as well as in business dealings with his associates and others with whom he has been involved. He has never before been convicted of a crime or been involved with a complaint by the Florida Real Estate Commission against his license.
