The Issue The issue in this case is whether Respondents have discriminated against Petitioners based on Petitioners' national origin.
Findings Of Fact On August 28, 2009, Ms. Greene was a loan officer employed by CenterState Home Loans, LLC. The office where Ms. Greene worked was located inside CenterState Bank, N.A., located at 6930 Gall Boulevard in Zephyrhills, Florida. The office is separate from CenterState Banks, Inc. There is signage on a glass wall of her office stating, "CenterState Home Loans, LLC." Ms. Greene is paid by CenterState Home Loans, LLC. She is paid by commission. Thus, there is no incentive not to complete loan applications. CenterState Home Loans, LLC, is a separate corporation from CenterState Banks, Inc., and CenterState Bank, N.A. Both CenterState Banks, Inc., and CenterState Bank, N.A. are interest holders in CenterState Home Loans, LLC, but are not the managing members of CenterState Home Loans, LLC. Platinum Home Mortgage Corporation is the managing member of CenterState Home Loans, LLC. As the managing member, Platinum Home Mortgage manages the quality control and integrity of CenterState Home Loans, LLC. CenterState Home Loans, LLC, is not authorized to do Federal Housing Association (FHA) loans. Any FHA loans originated by CenterState Home Loans, LLC, are assigned to Platinum Home Mortgage. On August 28, 2009, Petitioners, Mr. Velez's mother, and Petitioners' young daughter came to Ms. Greene's office to discuss the possibility of obtaining a loan through CenterState Home Loans, LLC, and a loan through the Pasco County Home Buyers Program. The purpose of the Pasco County Home Buyers Program is to aid qualified home buyers in purchasing their primary residences. Initially, Petitioners were interesting in applying for an FHA loan. Prior to the meeting, Mr. Velez had telephoned Ms. Greene and asked what types of information would need to be submitted. Ms. Greene stated that he would need W-2 forms, paystubs, bank statements, and anything that showed proof of any assets or debts. Petitioners brought some of the documentation to the meeting. At the meeting, Petitioners supplied information to Ms. Greene, who typed the information into her computer using loan software entitled "Loan Soft." The information was placed on a Uniform Residential Application, which is called a Form 1003. No property was identified on the Form 1003 because Petitioners did not have a sales contract for a specific piece of property. They indicated that the property they wanted to purchase would be approximately $140,000. Mr. Velez told Ms. Greene that he was anticipating a 50 percent loan from Pasco County Home Buyers Program, which would leave approximately $70,000 to be financed plus closing costs. When Ms. Greene input the information into the computer program, it automatically calculated the approximate closing costs. The interest used to do the calculations was based on the interest rate on August 28, 2009, and was not a guaranteed rate. With Petitioners' permission, Ms. Greene pulled a credit report on each of them during the meeting on August 28, 2009. The credit report showed that there were some debts in collection and that there was an outstanding judgment against Ms. Guerrero. Additionally, based on CenterState Home Loan, LLC, guidelines, the credit scores did not qualify Petitioners for a second mortgage, which included a Pasco County Home Buyers Program loan. On August 28, 2009, Ms. Greene needed additional asset information from the Petitioners and requested that they provide her with information concerning checking, savings, or money market accounts for at least a two-month period. Mr. Velez did present a bank statement at the meeting, which showed a current balance of less than $200. Ms. Greene told Petitioners that the debts in collection and the outstanding judgment needed to be resolved. Additionally, Ms. Guerrero was an authorized signer on some of her mother's credit cards, and a statement would have to be provided that Ms. Guerrero was not responsible for the debts associated with those credit cards. The software program that Ms. Greene used automatically completes a page in the application titled, "Pre- Approval Cover Sheet and Check List." The program put "completed" by a number of items which had not been completed, such as the Form 1003 and current asset statements. Petitioners had supplied some pay stubs and some bank statements at the August 28, 2009, meeting. The Form 1003 did not indicate that Petitioners had been pre-approved for a loan. The meeting ran near to the time CenterState Home Loans, LLC, was closing and could not be completed before closing time. Ms. Greene printed out a copy of the Form 1003, with the information that had been completed, and gave it to Petitioners. Petitioners were to complete, sign, and return the Form 1003 to Ms. Greene. Additionally, Petitioners were to provide evidence that the debts had been paid and the judgment satisfied, along with evidence of current assets. Because the application was not completed and additional information was needed, Ms. Greene could not fully analyze the application. Sometime after the August 28, 2009, meeting, Ms. Greene reviewed the information that had been supplied to her by Petitioners and discussed the information with Mr. Velez on the telephone. Mr. Velez wanted to schedule a meeting to discuss the application. She advised him that, based on the credit scores and the limited funds in his bank account, he could not qualify for a loan with a second lien by the Pasco County Home Buyers Program. Thus, there would be no need to meet. Mr. Velez told her that he wanted to continue with the process. Petitioners set about paying off the debts in collection and satisfying the judgment against Ms. Guerrero. Mr. Velez had received a disability settlement and placed some money in a bank account. Petitioners did not supply updated information to Ms. Greene. Sometime in October or November 2009, Mr. Velez called Ms. Greene and requested that she send a realtor a pre-approval letter. Ms. Greene replied that she could not do that because she did not have the supporting documents to be able to give a pre-approval letter. Mr. Velez became very angry and demanded the documents he had previously provided at the August 28, 2009, meeting. Ms. Greene had only copies of the documents that he provided, but she placed them in an envelope and left them for Mr. Velez to pick up. Petitioners stated in Form 1003 that their ethnicity was Hispanic or Latino. Mr. Velez stated at the final hearing: My basis for my racial discrimination was the fact that she [Ms. Greene] denied us the opportunity to turn in updated information when stated that she would allow us to do so. Ms. Greene never stated that she would not take additional information because Petitioners were Hispanic. She has processed loans for other Hispanics which involved the Pasco County Home Buyers Program, and she has closed loans for other minorities. Ms. Greene never discussed Petitioners national origin with them. She did not base any decision regarding their loan application on their national origin. After Petitioners were advised by Ms. Greene that they would not qualify for a loan involving the Pasco County Home Buyers Program, they applied for loans at two other lending institutions and were turned down on the basis of too many inquiries or insufficient credit scores. They finally received a loan from Manhattan Mortgage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioners' Petition for Relief. DONE AND ENTERED this 3rd day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2010.
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issue herein the Petitioner, Division of Real Estate, and the Florida Real Estate Commission were the state agencies responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate broker with license number 0414476. Respondent was operating as a real estate broker and operated a real estate brokerage under the name Roney Realty located at 424 Beach Drive Northeast, Number 205, in St. Petersburg. In early 1995, Kathleen M. Mitchell, a single mother and licensed practical nurse, while attending a garage sale, noticed a two bedroom house for sale at 805 59th Street South in Gulfport and called the broker's telephone number shown on the sign. Respondent was the broker listed. On the basis of that telephone call, Respondent and Ms. Mitchell met at the house, owned by Respondent's sister. At the time, Ms. Mitchell advised Respondent that she had credit problems and was burdened with a previous FHA mortgage which was in default. In response, Respondent urged her not to worry and assured her he could get her financing even though she had undergone a prior bankruptcy. He also indicated that the selling price for the house was variable, depending on financing and the amount of the down payment. Ms. Mitchell contends that Respondent indicated to her that he would represent both buyer and seller in a dual agency arrangement, which he got her to acknowledge in writing, and claimed he would not take a commission on the sale. The initial contract signed in this case, however, lists a commission of $1,925.00 to be paid by the seller. This inconsistency was not explained. As a result of the initial negotiations which began in January, 1995, Ms. Mitchell signed a contract for the purchase of the property on February 13, 1995, which, she claims, was to be effective in March, 1995. This agreement, reflecting a sales price of $55,000 also indicates that Ms. Mitchell had made a $200.00 cash down payment, and called for an additional payment of $800.00 within 5 days of signing and an additional $650.00 at closing, to include buyer's closing costs and prepaid items or prorations. This left a balance to be financed of $53,350. There were no other handwritten clauses placed on the contract form. Ms. Mitchell paid the initial $200.00 and agreed to pay the additional $800.00 when she moved in. On the basis of that contract and the deposit made, Ms. Mitchell was allowed to move into the house. Approximately two weeks later, when it became obvious that her financing was going to be a problem, Mr. Roney brought a second contract to the house for her to sign. At this time, Mr. Roney suggested that while the parties were waiting for her financing to be approved, Ms. Mitchell could rent the house for $500.00 per month. Ms. Mitchell agreed to do this if all the defects in the house, which she had identified and reported to Respondent, were fixed. She claims that he verbally agreed to fix everything and she thereafter signed the second contract, which is undated as to signature, but which bears an effective date of April 20, 1995. The second contract reflects a purchase price of $56,650, a deposit of $2,832.50, and a balance to finance of $53,817.50. Ms. Mitchell admits to having made the $200.00 down payment, and it is not clear whether she also paid the $800.00, but at one point in her testimony indicated that is all she paid by way of down payment. She has no idea where the figure of $2,832.50 comes from. Yet, at another point in her testimony, she claims to have given Mr. Roney $1,650.00 on March 1, 1996, which money he put into Stewart Fidelity Title Company's escrow account. The contract also reflects that the deposit is being held in escrow by Stewart Fidelity Title Co. No information was presented as to the current state of the deposit. This contract shows substantial hand-written modification to the standard contract clauses which clearly reflect that changes were made on July 7, 1995, and were "added after signing." However, there are substantial, modifications to paragraph 21 of the contract form, "additional terms", which are confusing as to when they were added and what they mean. For example, one added clause calls for the buyer to make monthly payments of $600.00 until closing ($100.00 per month credited back to buyer at closing). Another provides that the buyer accepts the property as is from day of possession and agrees to maintain the property until closing. A third indicated that the seller agrees to credit $650.00 toward buyer's costs upon closing, and a fourth states that if the buyer cannot obtain a mortgage within one year of possession, the seller may convert the agreement to a lease. The difficulty in interpretation of the above rests in the fact that arrows pointing to various of the comments are not defining in their application. For example, one arrow comes from the word "closing" down the side of the paper into the Acceptance/Rejection section where is stated, "as is meant landscaping [sic]." Another arrow points to the word "may" in the last addition and reflects, "7-7-95 added." Ms. Mitchell adamantly contends that when she signed the second contract, none of the hand-written additions were on it. Mr. Roney admitted as much at hearing, but no informationwas presented to indicate if the additions were agreed to by Ms. Mitchell at any time. She contends that when she saw those post-signing additions, she took the document to her mortgage person who directed her to contact Respondent and stop further proceedings. When Ms. Mitchell did that, she claims, she wastold by Mr. Roney not to talk to her mortgage man again, and that his, Mr. Roney's, mortgage broker would handle the obtaining of her mortgage from then on out. When Ms. Mitchell recounted those instructions to her original mortgage broker, he advised her to contact Respondent's escrow agent, get her deposit back and cancel the contract. Respondent admits to having requested Ms. Mitchell use a different mortgage broker but asserts this was because her broker was not having any apparent success in getting her qualified. Ms. Mitchell lived in the house in question for two months before she moved out. Upon the advice of an attorney, she claims, she paid no rent while she occupied the premises. While she occupied the property, she paid $250.00 to have it appraised by a state certified residential real estate appraiser who opined that as of May 9, 1995 the property was valued at $49,500. In the addendum to the appraisal report, the appraiser stated: The roof has active leaks and improperly installed areas; The front soffit has loose conditions; The electrical system has unsafe wiring and improper size fuses; The heating and AC units are not operating properly ("No source of heat"); The plumbing system has some deficiencies and possible leaks; The pool is in need of "Major Repair", including repair of leaking conditions at the main drain and tiles; termite damage was noted; the water heater needs repair (or replacement), and it is exposed to weather conditions; Window and door screens are missing; The lawn sprinkler is damaged and partially disassembled The storage shed has rust conditions. Though at hearing Respondent attempted to dismiss this appraisal as being based on the home inspection reports done at Ms. Mitchell's request previously and given the appraiser, and not his personal inspection, a review of the document clearly indicates the conditions noted above were determined from review of that report "and/or observation by the appraiser." Ms. Mitchell experienced first hand many of the problem areas noted in the appraisal report. When she mentioned to Respondent that the screen door was missing, he reportedly told her it wasn't necessary. When she complained to Respondent that she had no hot water for several days, he sent over a repairman who ultimately corrected the problem. The repairman's statement, dated "May, 1995", reflecting a charge of $445.00 for his service, indicates he repaired a water leak on the hot water heater; unblocked a restriction in the hot water supply pipe; and replaced defective control knobs on the shower. He also cut the side of the kitchen counter to fit in a new stove and delivered a replacement refrigerator with an ice maker and reconnected the water line to it. This latter installation was the result of Ms. Mitchell's continuing complaint that the refrigerator did not work for quite a while which resulted in her losing a substantial amount of perishable food. The first time that happened, she though it might be her fault and she replaced the lost food. However, when it happened again, she complained to Respondent and he told her to get it fixed. She did, at a cost to her of $100.00, which Respondent did not pay back. Finally, a refrigerator repair man was sent to the property on both April 4 and April 19, 1995. He finally recommended the unit not be repaired but replaced. This was done. When Ms. Mitchell complained to Respondent that the heating and air conditioning unit in the living room did not work, and that the bedroom unit did not heat, she admits that Respondent had a repairman come out and look at the unit. Though she claims the repairman told her it would take $483.00 to repair it, she appears to have confused the appliances, as the repairman's statement, dated April 19, 1995, refers to an estimated cost of $483.00 to replace the compressor on the refrigerator, not the heater/air conditioner. There is no evidence to indicate how the problem with those units was resolved. Ms. Mitchell contends that when she first saw the swimming pool, before she contracted to buy the house, it was clear and the pump was running. When she thereafter heard a noise in the pump, in February, 1995, before she moved in, she reported this to the Respondent. Nothing was done about it. After she moved in, the pool rapidly became unusable. The pump motor was inoperative and the water turned green. Ms. Mitchel claims she called Respondent almost daily about the pool. He told her his sister had the motor removed for repairs and he would get it back. The motor was subsequently returned, along with the pool equipment which had been removed, but the pool leaked, requiring her to add water every day, and she could not keep the water clear. In late April, 1995, a pool man was sent to the property who, according to Ms. Mitchell, indicated that there was a need to replace loose tiles and mastic because of the age of the pool, and a leak at the main drain. It is not clear from the evidence presented if these repairs were made. When the appraisal report was rendered, showing a fair market price considerably less than what she had contracted to pay, Ms. Mitchell advised Respondent on several occasions that she to cancel the contract. On May 2, 1995, after she had seen an attorney and another real estate broker, she wrote to Respondent requesting either that he refund the deposit money she had placed with him and reimburse her in the amount of $500.00 for her personal expenses, in which case she would vacate the property within one week of receipt of the money, or return her deposit within one week, in which case she would vacate the property by June 1, 1995. In either case, she indicated she would pay no more rent. In that regard, it appears she had paid no rent up to that time, though she had agreed to pay rent in the event they could agree upon the terms of a contract and the property was repaired. She claims she did not expect to live in the property rent free, but believed that what she had paid out in repairs was fair rent for her occupancy. No clear total figure for what she paid out was provided. In response, Ms. Mitchell received a letter from the Respondent in which he demanded payment of the rent due. Thereafter, on June l, 1995, Ms. Mitchell received a second letter from the Respondent in which he stated he assumed she had agreed to deduct the amount due for rent from the deposit money she had placed with him and which he held in escrow. According to Respondent's calculations, Ms. Mitchell owed $1,271.56 in back rent after crediting her with $100.00 of the $600.00 per month rent payment she was to make. When this $1,271.56 was deducted from the $1,603.45 escrow balance held by him, $331.89 would be left in the escrow account. Respondent gave her the choice of doing that or of paying what was owed in case, leaving the entire escrow account untouched. He advised her she must make her choice and advise him and the escrow agent within forty-eight hours. Respondent did not satisfactorily explain his calculations at hearing. From the state of the evidence presented, it was impossible for the undersigned to determine exactly how much money Ms. Mitchell paid by way of deposit, rent, or repairs. Between the receipt of Respondent's first and second letters, Ms. Mitchell spoke with him about the condition of the house and what she wanted to do with regard to it. At no time did she authorize Respondent to make any deduction from the amount in escrow. In the interim, she began to look for another house and to seek alternative funding. She also tried to contact Respondent but she was unable to do so, reaching only his pager. Finally, she received a three-day notice dated June 20, 1995 to pay the rent due or vacate. In response, she wrote an undated letter to Respondent in which she said she was sending $1,000.00 to pay $500.00 rent for both May and June, 1995, but neither mailed the letter nor sent the money. Thereafter, she received a second three day notice dated June 30, 1995, directing her to pay the rent due or move out. This notice was left in her mail box by the Respondent. She neither paid the rent nor moved out at that time. Ms. Mitchell finally moved out of the property in issue on July 18, 1995 and thereafter, on a weekly basis, either verbally or in writing, demanded return of her deposit. She did not get it back. Mr. Roney's account of the beginning of the parties' relationship is consistent with that of Ms. Mitchell, except that Ms. Mitchell initially indicated the property could not be worth more than in the mid-forty thousand dollar range. In response, Respondent claimed to have done a market analysis on the property which supported the asking price, and because his sister had put a lot of money into the property, it could not be sold for a price as low as even in the high forty thousand dollar range. It would appear from the independent appraisal done of the property, the true value was closer to Ms. Mitchell's estimation rather than Respondent's. Nonetheless, Ms. Mitchell liked the property and agreed to buy it at the asking price, after she had looked it over with a contractor friend of hers. Respondent admits that Ms. Mitchell was forthright with him in disclosing her financial problems. She told him of her bankruptcy of several years previous, and in response to his questioning, noted several other problems, none of which, by her account, were her fault. When Ms. Mitchell called Respondent on February 13, 1995, indicating she was ready to sign, he referred her to a mortgage company which he felt could help her. Based on what information Ms. Mitchell had provided, Respondent had been told that her financial problems were "fixable". As a result, the first contract was signed and the financing process initiated. On March 18, 1995, Ms. Mitchell called Respondent and indicated she wanted to move into the house prior to closing because her current landlord would neither acknowledge nor fix defects in her property, and she had to get out. Therefore, on or about March 20, 1995, Respondent re-wrote the contract and requested she use another mortgage broker as a condition of taking possession prior to closing. Respondent claims that the seller's disclosure as to the condition of the property was accurate but Ms. Mitchell wanted an independent inspection done to which Respondent agreed. He insisted, however, that if she wanted to move in before closing, she would have to take the property "as is." He advised Ms. Mitchell that his sister had not lived in the property for a year. It was not clear from the evidence presented whether the property was vacant for that entire year or whether it had been rented out. Ms. Mitchell moved in after signing the second contract. Respondent claims Ms. Mitchell called almost daily with some complaint or other and he would have each one fixed. Finally, he met with her and the handyman and they went around to check everything out. She seemed satisfied. Nonetheless, after that Ms. Mitchell called to complain about the swimming pool. Respondent's sister and the handyman both went to the house to explain how to work the filtration system. To insure that there was no leak in the pool, Respondent gave Ms. Mitchell the name of the pool company which had serviced the pool for ten years so that if anything went wrong, she could contact them directly to have it checked and get instruction. While Respondent contends the pool company report indicated no leak and no major problems, Ms. Mitchell wrote on the invoice submitted by the repairman dated April 25, 1993, "... notified me and Mr. Rony [sic] of need to replace loose tiles and main drain leak and re- mastic due to extreme age of pool." Unfortunately, no direct evidence was presented which resolves the apparent inconsistency in the evidence. Mr. Roney claims he tried to remedy any problem Ms. Mitchell had with the house. For example, on April 3, 1995, she called to complain about the refrigerator. On April 4, 1995 he told her to call whomever she wanted, and if the estimate were reasonable, she could deduct the repair charge from the rent. If the charge were estimated to be major, she was instructed to call back. When she called and said the charge would be $100.00, he authorized it. However, a week later, Ms. Mitchell again called and complained about the refrigerator and Mr. Roney replaced it the next day. The problems with the refrigerator are documented by independent evidence of record. The replacement there was admitted by Ms. Mitchell. Respondent asserts that the delinquency notices and track toward the closing. When he found out that Ms. Mitchell was trying to get an appraisal done on the property, he tried to tell her that an appraisal would be done as a part of the mortgage process, but she wanted her own. The results of that independent appraisal were discussed previously. Sometime thereafter, Ms. Mitchell told Respondent she wanted out of the contract. The seller agreed to let her out if Ms. Mitchell would pay some rent for the period she occupied the property. As a result, Respondent tried to get her to pay. When she would not, he sent the eviction notices. Respondent admits he did not receive $2,853.00 in deposit money from Ms. Mitchell. That figure cited was the result of her representations to him that she could come up with it. When the contract was signed, she gave him a check for a part of it and said she'd come up with the balance, but she never came up with the full amount. Any deposit payments made by Ms. Mitchell were deposited with Stewart Title Company where it remains. It is impossible to determine how much was paid as deposit by Ms. Mitchell and how much, if any as rent. Respondent asserts Ms. Mitchell never made any claim to him for return of her deposit. Any claims for return were all made to Stewart Title. Ms. Roney, the owner, did not want to lease the property or sell it on a lease option. She wanted to sell it outright because she needed the money for other investments. She agreed to a lease-purchase arrangement only because the mortgage broker assured her Ms. Mitchell could clear her credit and the sale could go through. She also agreed because Ms. Mitchell had had the property inspected and appeared to be satisfied with its condition. Ms. Roney claims she had no problems with the pool when she lived there and also claims that since the property has been sold, the new owners have not contacted her regarding any problems with the pool. She would not approve a refund of deposit under the conditions of this dispute. Respondent contends there have been no complaints filed against him for the practice of his real estate profession in the 15 years he has been licensed. No evidence of prior misconduct was shown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent not guilty of misrepresentation and breach of trust in a business transaction and dismissing the Administrative Complaint. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Paul H. Roney, Jr. 424 Beach Drive Northeast, Suite 205 St. Petersburg, Florida 33701 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street 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
Findings Of Fact Respondent, Pedro F. Hernandez, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0038833. Hernandez was at all times material hereto the owner and sole qualifying broker for Respondent, Pedro Realty, Inc., a Florida corporation, registered as a real estate broker, license number 0067966. On July 19, 1984, Pedro Realty, Inc., procured a contract between Orfa Martinez and Ana Flores, purchasers, and Mr. and Mrs. Hector Sierra, sellers, for the sale of the Sierra's home. Pursuant to the terms of the contract, the purchasers deposited $3,000.00 with Pedro Realty, Inc., to be held in escrow subject to the terms of the contract. Pertinent to this case, the contract provided: NEW INSTITUTIONAL FIRST MORTGAGE Purchaser shall obtain a first mortgage for the balance of the purchase price from a Federal Savings and Loan Association or other institutional lender at the prevailing interest rate . . . . Purchaser shall have only 45 days to apply for and obtain approval for said mortgage, and Purchaser shall make a diligent effort to obtain said mortgage . . . * * * MORTGAGE CONTINGENCY If, after diligent effort on the part of the Purchaser, the Purchaser is unable to obtain and/or qualify for said First Mortgage, all monies deposited hereunder shall be refunded to Purchaser and parties herewith agree to enter into a Release of Purchase and Sale Contract, and the contract shall be declared null and void. On July 21, 1984 the purchasers applied for a mortgage loan with Century Funding Corp. By letter of November 7, 1984, the purchasers and Pedro Realty, Inc. were notified that their application had been denied. In the interim the seller's attorney, by letter of September 21, 1984, notified the purchasers that the sellers considered the purchasers in default because of their failure to secure the new first mortgage within 45 days of the date of the contract. However, the sellers agreed to waive the default if the purchasers proceeded diligently with the lender. By October 24, 1984, the new first mortgage had still not been obtained. Consequently, the seller's attorney notified the purchasers and Pedro Realty, Inc., that the contract was in default and demanded that: Pedro Realty, Inc. release the deposit to me or my clients as partial damages. Upon the denial of their mortgage application, the purchasers demanded the return of their deposit from Pedro Realty, Inc. Subsequently, the attorney for Pedro Realty, Inc., by letter of November 30, 1984, advised all parties of the conflicting demands. His letter concluded: The purpose of this letter is to invite all interested parties to exert their best efforts to resolve this matter by immediately beginning serious discussions regarding the same. In the event an agreement is reached, it must be in writing signed by all parties. In the event an agreement is not reached by December 15th, we will have no alternative than to notify the Florida Real Estate Commission and interplead the 53,000.00 into the Registry of the Dade County Circuit Court. While some settlement discussion may have occurred between the principals in early December, 1984, it was unproductive. Clearly, no agreement was reached by December 15, 1984, and no discussions were held thereafter. However, Pedro Realty, Inc. took no further action until the Department advised it on March 8, 1985, that the purchasers had filed a complaint regarding their deposit. By letter of April 20, 1985, the attorney for Pedro Realty, Inc. requested that the Department provide him an escrow disbursement order form. However, on April 30, 1985, the Department refused his request and advised him that the request had to be submitted by the broker. On May 3, 1985 Pedro Realty, Inc. requested the escrow disbursement order form from the Department. The form was forwarded by the Department on May 10, 1985, and the completed form was filed with the Department May 23, 1985. On August 26, 1985 the Department issued an escrow disbursement order that the funds be disbursed to the purchasers
Findings Of Fact Petitioner is the state licensing regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto. During times material, Respondent was a licensed real estate salesman in Florida, having been issued license number 0319604. The last license issued Respondent was as a salesman, c/o Referral Realty Center, Inc. (herein Referral) at 8974 Seminole Boulevard, Seminole, Florida. On December 1, 1988, Respondent entered into a management agreement with Madeira Beach Yacht Club Condominium Association, Inc. (herein Madeira) to serve as property manager. Respondent assumed the property manager position with Madeira in June of 1987, which was formalized by a written agreement in December 1988. While acting as property manager for Madeira, Respondent handled the rental transactions of individual units for owners. In return for her services, Respondent was compensated based on a commission of 10% to 20% of the monthly rental. On at least one occasion, Respondent rented an individual unit for owners for a term greater than one year. Respondent was aware that she was renting the one unit for a term in excess of one year. Respondent signed leases for units belonging to individual owners as the rental agent or representative. Respondent used the commissions that she received to defray operating expenses for her rental business such as cleaning fees for the units and for personal compensation. Respondent maintained a bank account at the First Federal of Largo Savings and Loan Association entitled "Dorothy K. Livingston Rental Account" for her rental business. Deposits to that account were rental monies received from tenants from which disbursements were made to unit owners and the remaining commissions went to Respondent as compensation. The rental account maintained by Respondent was neither an account with her employing real estate broker, nor was it an escrow account. Respondent placed security deposits that she received from tenants in the referenced rental account that she maintained. Respondent did not inform her employing broker of the receipt of security deposits nor did she discuss with her employing broker any of her activities involving rental of units for owners at Madeira. However, there is credible testimony evidencing that her broker was knowledgeable of Respondent's activities relative to her rental of units for owners. During May 1989, Respondent placed her real estate license with Referral Realty Center (Referral) as her employing broker. She did so in order to receive payment for referring prospects to Referral. On or about May 22, 1989, Respondent entered into an independent contractor agreement with Referral. That agreement provided in pertinent part that: Independent contractor agrees that Independent contractor will not list any real estate for sale, exchange, lease or rental... . Independent contractor agrees to refer all prospective clients, customers, buyers and sellers of which Independent contractor becomes aware to the Center... . Independent contractor agrees that so long as this Agreement is in force and effect the Independent contractor will not refer any prospective seller or buyer to another real estate broker... . 9. Independent contractor agrees to act, and to represent that he or she is acting solely as a referral associate of the Center... . While employed by Referral, Respondent also received commissions from individual unit owners at Madeira. During the time when Respondent had her license listed with Referral, she also received commissions from Referral for prospects she generated while renting units for owners and acting as property manager at Madeira. Respondent received a copy of a letter from attorney R. Michael Kennedy, addressed to J.L. Cleghorn of Building Managers International, Inc., dated September 5, 1989. In that letter, attorney Kennedy expressed his opinion that condominium or cooperative managers are exempted from the licensing provisions of Chapter 475, Florida Statutes, and that receipt of a percentage of rental proceeds would not be precluded even if the manager was salaried. The Kennedy letter erroneously states support for attorney Kennedy's opinion by Alexander M. Knight, Chief of the Bureau of Condominiums, and Knight so advised attorney Kennedy of that erroneous support by a subsequent letter to him. It is unclear to what extent Respondent apprised attorney Kennedy as to the specifics of her activities and to what extent she relied on his opinion prior to engaging in her property manager's rental and referral activities. (Petitioner's Exhibit 7.) Respondent did not seek advice from Petitioner as to whether her activities fell within the guidelines of Chapter 475, Florida Statutes. Respondent is familiar with the statutory definitions of a broker and salesman and what activities constitute brokerage and sales activities. During times material, Respondent's employing broker, David Hurd, was a licensed real estate broker in Florida, and the broker of record for Referral for procuring prospects and making referrals of real estate activities. Employment under an independent contractor agreement is considered employment under Chapter 475, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,500.00, issue a written reprimand to her, place her license on probation for a period of one (1) year with the further condition that she complete 60 hours of continuing education. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jerry Gottlieb, Esquire GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue By an information filed by the Florida Real Estate Commission, respondent Thomas F. Thayer was charged with fraud, dishonest dealing and breach of trust in a business transaction in violation of Florida Statutes s.475.25(1)(a). In essence, the information charges that respondent, as the real estate broker for the Jacobs and in order to obtain a ninety percent loan commitment for the Jacobs, falsely represented to a mortgage corporation that the Jacobs Intended to move into the duplex they planned to purchase and sell their present home.
Findings Of Fact At all relevant times to this proceeding, respondent was a registered real estate broker. Respondent had been an acquaintance of Mr. and Mrs. Richard Jacobs for a period of four to five years. Some two years before the transaction in question, Jacobs had expressed to respondent his desire to purchase property containing a duplex for purposes of a tax shelter. Mr. Jacobs testified that he intended the purchase to be an Investment somewhere in the neighborhood of $5,000.00. There was also evidence that Mr. Jacobs understood that there were tax shelter benefits from living in half the duplex and depreciating the other half. In April of 1974, respondent showed the Jacobs a duplex. At the time, the Jacobs were living in a two bedroom, two bath waterfront home with a swimming pool, valued somewhere in the neighborhood of $60,000.00. The location of the duplex was in a lower rent neighborhood near some railroad tracks. However, the front portion contained three bedrooms, two baths, a thick shag carpet and a built-in bar. There were also two large screened-in patios. The Jacobs were impressed with the duplex, and on April 19, 1974, they signed a deposit receipt contract prepared by respondent to purchase the duplex for $41,000.00. This contract was subject to the Jacobs being able to obtain ninety percent financing at 9.25 percent annual Interest within fifteen days from the date of acceptance by the sellers. The contract also contained certain conditions regarding inspection of the rear apartment; electrical, plumbing, roofing and appliance defects; termite damage and the inclusion of a metal storage shed. Such conditions were included in the contract at the request of Mr. Jacobs. In order to obtain ninety percent financing, it was necessary that the lender be assured that the borrower actually intends to reside on the mortgaged property. This assurance comes about through either an affidavit executed by the borrower at the time of closing and/or the filing with the lender of a sales listing on the present home of the borrower. From this point forward, disputes in the testimony arise. Respondent testified that Mr. Jacobs was aware of the financing requirement that he would have to indicate an intent to sell his present home. Jacobs acknowledged that he was so aware, but testified that he never had any intent to move from his waterfront home to the duplex, and so informed respondent. However, when he went in to make the loan application with the mortgage company, he told its representative that he would be living in the duplex. Respondent then informed the mortgage company that he would be sending them a multiple listing form on the Jacobs' present residence. Jacobs stated at the hearing that he and his wife never intended to reside in the duplex and that he followed respondent's advice regarding the filing of a multiple listing only because he had faith and trust in respondent, who told him such things were done all the time. Respondent testified that the Jacobs never informed him that they did not intend to live in the duplex or that they did not intend to sell their present home. In fact, there was testimony from Mr. Jacobs that between the time of the deposit receipt contract and the first letter approving the mortgage loan commitment, he and his wife were looking at other homes on the water in which to live. The multiple listing form was signed by the Jacobs and delivered to the mortgage company by respondent, but it was never turned in to the multiple listing service. Sometime subsequent to receiving the mortgage loan commitment on May 29, 1974, Jacobs inspected the rear apartment of the duplex and became very upset and disgusted with its condition. Repairs were estimated at $1,000.00 and the sellers only offered to contribute approximately $75.00 toward such repairs. Jacobs then went to an attorney who advised him that it would be illegal to continue with the purchase because of the misrepresentation as to the Jacobs' intent to reside in the duplex. Jacobs then called the mortgage company and told them he did not intend to live in the duplex. Thereafter the mortgage company informed Jacobs that they were unable to obtain a mortgage commitment. Respondent testified that he first became aware that the Jacobs did not intend to live in the duplex the night after Jacobs inspected the rear apartment and spoke with his attorney. In summary, the testimony in this case is conflicting with respect to respondent's knowledge of the Jacobs' intent as to where they would actually reside. In order for respondent to be found guilty of fraud, dishonest dealing and breach of trust in a business transaction, as prohibited by Florida Statutes s 475.25(1)(a), the Real Estate Commission must prove by clear and convincing evidence that respondent actually knew that the Jacobs never intended to reside at the duplex property. That proof is lacking in this case. Here, the substance of the matters in dispute are as readily susceptible of proving respondent's innocence as they are susceptible of proving guilt. Jacobs testified that he originally wanted the duplex as an investment which would provide a tax shelter and that he did not intend to live in it. Yet, he verbally represented to the mortgage company that he did intend to live in the duplex, signed a multiple listing agreement and actually did look at other homes to live in during the period of time between signing the deposit receipt contract and obtaining knowledge of the original loan commitment. There was no evidence that respondent had any knowledge of or was involved in the Jacobs' search for another home in which to live. Jacobs was willing to go through with the purchase of the duplex until he became aware of the extent of damages to the rear apartment. It was at this time that he Informed the mortgage company that he did not have any intention of living in the duplex or selling their house. And, it was at about this same time, according to respondent, that respondent first learned that the Jacobs did not intend to reside in the duplex. There is no clear and convincing evidence in this record that proved that respondent knew that the Jacobs did not plan to live in the duplex at the time respondent forwarded the multiple listing to the mortgage company on April 30, 1974. The most credible evidence tending to show such knowledge on respondent's behalf is the fact that after the multiple listing agreement was signed and delivered to the mortgage company, the house was never actually put up for sale, was not shown to anyone, and the agreement was not filed with the multiple listing service. Yet, this is consistent with the evidence that the Jacobs did not receive word of the loan commitment until after May 29, 1974 (later to be rescinded on July 5, 1974) and the fact that the Jacobs were in the process of looking for yet another home to purchase. It is logical to assume that they were not yet ready to sell their present home with the uncertainties that existed, and this Instructed respondent to delay the selling process. In summary, it is concluded that the Real Estate Commission failed in its burden to prove, by clear and convincing evidence, the misconduct charged; to wit: fraud, dishonest dealing and breach of trust in a business transaction. It is therefore RECOMMENDED that the information charging respondent with a violation of Florida Statute 475.25(1)(a) be dismissed. Respectfully submitted and entered this 30th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Spindler, Jr., Esquire and James R. Eddy, Esquire EDDY AND SPINDLER, P. A. 700 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order fining Respondent $500. DONE and ENTERED this 12th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Louis S. Okoniewski 730 Lake View Avenue, N.E. Atlanta, Georgia 30308 Harold Huff. Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
The Issue The issue in this case is whether the Florida Real Estate Commission should discipline the Respondent, Mounir Albert El Beyrouty, on charges that he failed to deliver rental proceeds, was dishonest in his dealings regarding the rental property, failed to escrow rental deposits and proceeds, and failed to properly reconcile his escrow account.
Findings Of Fact The Respondent, Mounir Albert El Beyrouty, is licensed as a real estate broker in Florida, having been issued license no. BK 596936. He is the qualifying broker for Intermab, Inc., d/b/a Byblos Beach Realty. Acting through the real estate brokerage he qualified, Intermab, Inc., the Respondent orally agreed with Virginia Covington to manage apartment Unit 1-E, Redington Tower 3, located at 17940 Gulf Boulevard in Redington Shores, Florida. Initially, Covington, who is a federal district judge, was the personal representative and sole beneficiary of her mother's estate, which owned the unit; after probate, Judge Covington became the owner of the unit. The Respondent and Judge Covington agreed orally that the Respondent would try to lease the apartment on an annual basis at a lease rate of $850 per month, less a 15 percent commission to the Respondent. Although the Respondent was unable to secure such a lease, he intentionally misled Judge Covington to think there was such a lease and, in January 2008, began paying her $722.50 per month by check drawn on his brokerage operating account. He did this because he wanted her to think highly of his abilities as a real estate broker in the hopes that she would retain him to list the property when she decided to sell. Not long after he began sending monthly checks, the Respondent told Judge Covington that a leak in the kitchen sink should be repaired and a stained mattress should be replaced. He got her permission, took care of both items, and was reimbursed. However, he perceived that Judge Covington did not want to put additional money into the apartment unnecessarily and decided to avoid these kinds of conversations and dealings with her. Instead, he began to expend his own funds to maintain and upgrade the property as he saw fit without telling her. The Respondent secured a paying tenant for the apartment for six weeks during February and March 2008. He collected a $500 security deposit and $5,250 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. When the seasonal renter left, the Respondent continued to pay Judge Covington $722.50 per month. In April 2008, the Respondent allowed friends to stay in Judge Covington's apartment free of charge and without paying a security deposit. He did not tell Judge Covington, rationalizing that he was paying her the $722.50 per month she thought was her share of the annual lease payments. The Respondent secured a paying tenant for the apartment for January, February, and March 2009. He collected a $500 security deposit and $9,000 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. When the seasonal renter left, the Respondent continued to pay Judge Covington $722.50 per month. The Respondent secured a paying tenant for the apartment for January, February and March 2010. He collected a $500 security deposit and $9,000 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. When the seasonal renter left, the Respondent continued to pay Judge Covington $722.50 per month. In July 2010, the Respondent was able to lease the apartment for a year at a monthly rent of $1,300. He also collected a $1,000 security deposit. He deposited this money in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $722.50 per month and continued to lead her to believe there was an annual lease for $850 a month. In November 2010, Judge Covington told the Respondent to tell the tenant she wanted to increase the annual lease rate to $935 a month. The Respondent continued to lead her to believe there was an annual lease for $850 a month and told her that he would advise the supposed tenant of the rent increase. Instead, he kept collecting $1,300 a month from the tenant and began paying Judge Covington $794.75 a month (the $935, less a 15 percent commission). He did not tell her there actually was an annual lease for $1,300 a month. The $1,300 annual lease was not renewed in July 2011. The Respondent continued to pay Judge Covington $794.75 a month and to lead her to believe there was an annual lease for $935 a month. In about June 2011, Judge Covington decided to sell her apartment. As the Respondent hoped and planned, she listed it with his brokerage. Judge Covington asked the Respondent to notify the supposed annual tenant, who she believed had been living in the apartment since December 2007, to make sure the tenant would be agreeable to a month-to-month lease during their efforts to sell. The Respondent continued to lead Judge Covington to believe there was such an annual tenant and assured her that he would be able to convince the tenant to cooperate with her plan to sell. From August 29 through October 5, 2011, the Respondent allowed friends to stay in Judge Covington's apartment free of charge and without paying a security deposit. He did not tell Judge Covington, rationalizing that he was paying her the $794.75 per month she thought was her share of the annual lease payments. In November and December 2011, the Respondent rented Judge Covington's apartment to the sister of the court clerk for $850 a month without requiring a security deposit. He did not tell Judge Covington about this rental. The Respondent secured paying tenants for the apartment for February, March and April 2012. He collected a $500 security deposit and $9,000 in rent, all of which he deposited in the brokerage operating account. He did not tell Judge Covington about the seasonal renter. Instead, he kept paying her $794.75 a month and led her to believe there was an annual lease for $935 a month. Despite several price reductions, the Respondent was unable to sell the apartment, and Judge Covington decided to switch selling brokers. In February 2012, she signed a listing agreement with another real estate broker. Later in February 2012, a real estate salesperson showed Judge Covington's apartment to a prospective purchaser. Upon questioning, an older woman told the salesperson that they were paying $3,000 a month in rent. The Respondent told the salesperson to disregard the information because the woman was not thinking straight, or words to that effect, because her husband had been ill. He also told her that the woman's son was actually paying the rent. The salesperson related this information to Judge Covington and also told her that she noticed that the residents were not the same people she happened to see in the apartment on one occasion in February 2012. Upon receiving this information, Judge Covington became suspicious that the Respondent had been dishonest and misleading her. She contacted the State Attorney's Office and the Division regarding the process for filing a complaint against the Respondent. She also arranged for a meeting with the Respondent. When she met with the Respondent, she brought a forensic accountant to review the Respondent's records. The Respondent told them he was sorry that Judge Covington was upset with him, but that he did not owe her any money--to the contrary, that she owed him money. However, he told them he was being audited by the Division and was unable to provide supporting documentation. At the final hearing, the Respondent provided a ledger to support his position that all the rent he collected belonged to him alone because Judge Covington owed him money throughout his dealings with her due to his payments to her, regardless whether her apartment was rented, and the money he spent to maintain and improve the apartment. (This was an after-the-fact justification for his failure to deposit any security deposits or rental payments into his escrow account when, in fact, he did not do so because he did not know it was required.) There is reason to believe that the ledger is not entirely accurate. For example, the Respondent omitted rent collected from at least one occupant of the apartment. It also does not account for the times the Respondent allowed friends and relatives to stay there free of charge, essentially acting as if he owned the apartment. Although the Respondent's testimony regarding the money he paid to maintain and improve the apartment is accepted, his failure to timely apprise Judge Covington regarding those expenditures makes it difficult to be certain about it. Finally, even accepting the ledger at face value, it shows that there were times when the Respondent owed Judge Covington, and not vice-versa. The Division attempted to make a case that the Respondent intended to and attempted to steal rental proceeds. It is unlikely that the Respondent actually targeted a federal judge to victimize in that way. It is more likely that the Respondent was attempting to impress Judge Covington with his skill and expertise as a real estate broker and, ultimately, to be rewarded with the listing on the property when it was sold. In so doing, the Respondent flagrantly violated several laws and rules regarding his professional responsibilities as a licensed Florida real estate broker. Respondent has been a licensed real estate broker for many years and depends on his license to make a living to support himself and his family. He has no prior disciplinary record. However, it has become known in this case that, over the years, he consistently has failed to use his escrow account for rental deposits and proceeds because he did not know it was required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: finding the Respondent guilty as charged; fining him $2,000; suspending his license for one year; and placing him on probation for a suitable period of time and upon suitable conditions. DONE AND ENTERED this 5th day of August, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2013.
