The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Richard B. Watson holds a license issued by petitioner and has since 1976. He holds license No. 0163723, and has, at all pertinent times, worked as a broker-salesman for Liz Caldwell Realty, Inc., 126- 128 Eglin Parkway Southeast in Fort Walton Beach, Florida. Petitioner's Exhibit No. 1. On June 13, 1983, Lloyd H. Waldorff executed an employment contract under which Liz Caldwell Realty, Inc. was to have the exclusive right to sell the 25 units Waldorff Properties of Ft. Walton proposed to build as "phase two" of its La Mar West Townhouse Project in Mary Ester, Florida. Petitioner's Exhibit No. 6. Nobody signed the written agreement on behalf of the broker, but Mr. Waldorff's testimony that Ms. Caldwell or somebody in the agency "accepted" it was uncontradicted, and fully consonant with the other evidence adduced. Mr. Waldorff or his organization needed agreements from prospective buyers to purchase units when built, in order to induce a lender to lend money for construction of phase two. One Saturday, probably in mid-July of 1983, Ms. Caldwell presented him with 18 such agreements. It seemed peculiar to Mr. Waldorff, getting 18 purchase agreements at once; and he was also struck by the number of Californians and other non- Floridians among the putative purchasers. But he had nevertheless signed the agreements himself before Ms. Caldwell gave them to Mr. Watson for attestation; and he later furnished all of the purchase agreements to Security Federal Savings and Loan Association of Panama City in support of an eventually successful application for a $1,100,000.00 construction loan. (T.90) Mr. Waldorff signed the purchase agreements in a back room within the Liz Caldwell Realty, Inc. offices. At hearing he remembered that a woman was present. He did not recall respondent's being there. Seventeen of the 18 agreements furnished the lender were purportedly signed by persons to whose signatures, except in one instance, respondent Watson attested. Petitioner's Exhibit No. 4. On 16 of the 17 purchase agreements on which he signed as a witness to putative purchasers' signatures, respondent also signed as a witness to Mr. Waldorff's signature in a blank provided under the heading "signed in the presence of:". Petitioner's Exhibit No. 4. Respondent was aware at the time that Mr. Waldorff, whom he considers a friend, needed such agreements in order to obtain financing. As time for closing on the purchase agreements approached, Mr. Waldorff testified, he became suspicious, and asked Ms. Caldwell to see her escrow account statements, but she put him off. Eventually he asked her if the purchase agreements were "bogus," and she answered by nodding affirmatively. It was at this point, Mr. Waldorff said, that he notified the lending institution of their falsity, and asked for an extension of time in which to repay the construction loan. But the weight of the evidence established that the purchase agreements were shams from their inception and that Mr. Waldorff knew it before he obtained the loans. On September 9, 1985, Paul R. Bratton, III, an investigator for DPR, asked Mr. Watson about the purchase, agreements on which he had witnessed purported parties' signatures. In this interview, Mr. Watson said, with respect to some of the contracts which he had signed as a witness, "that he did not see the buyers or the sellers sign the contract." (T.63) In a deposition he gave in the course of related civil litigation, respondent Watson testified that it was "(p)retty much," Petitioner's Exhibit No. 5, p.10, "standard procedure" for him to witness signatures which he had not seen being affixed. In response to the question, "Does that mean also you wouldn't know whether these people exist in real life or not?", Mr. Watson answered, "It could be. ..." Id. as 15. Mr. Waldorff told Mr. Watson he was going to use the 18 purchase agreements, all but one of which respondent had signed as a witness, to secure a construction loan even though they were "bogus." Petitioner's Exhibit No. 5. This conversation antedated the loan closing. Id.
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact The Petitioner, Todd T. Catlette, applied for full registration as a general securities representative. Mr. Catlette is not licensed to call or offer to sell securities in the State of Florida. The Department of Banking and Finance denied the application by letter dated January 22, 1988. Ex. 3 The application was denied based upon the following facts: On May 3, 1988, the Petitioner pleaded nolo contendere to a third degree felony, filing a false and fraudulent insurance claim, in violation of Section 817.234(1)(a), Fla. Stat., and pleaded nolo contendere to a second degree felony, second degree grand theft, in violation of Section 812.014(2)(b), Fla. Stat. He was placed on probation for one year and ordered to make restitution to the insurance company in the amount of $2,148.00. Upon failing to make restitution, his probation was extended three years. He was discharged from probation on April 28, 1987. On August 3, 1979, the Petitioner pleaded nolo contendere to sale and delivery of cocaine and possession of cocaine with the intent to sell and deliver, both second degree felonies, in violation of Section 893.03(2)(a)4, Fla. Stat. He was sentenced to two years in state prison. On November 22, 1976, the Petitioner pleaded nolo contendere to possession of less then five grams of marijuana and possession of drug paraphernalia, a first degree misdemeanor; and was placed on three months probation. After serving his sentences in state prison, the Petitioner obtained a college education. The Petitioner testified that he was innocent of the possession of marijuana offense in 1976 and innocent of the fraudulent insurance claim and theft offenses in 1985. He presented a deposition of a detective involved in the fraudulent insurance claim case which was admitted as hearsay evidence to support his assertion of innocence. It appears from the deposition and the testimony of Mr. Cutlette that the detective relied solely upon the testimony of one witness as support for the charges of false insurance claim and theft. The foregoing evidence is not sufficiently credible to prove by the preponderance of the evidence that the Petitioner was innocent of the fraudulent insurance claim and grand theft offense. When presented with an opportunity for a trail, the Petitioner pleaded nolo contendere.
Recommendation For these reasons, it is recommended that the Respondent issue its final order denying the application of Todd T. Catlette for full registration as a general securities representative. DONE AND ENTERED this 24th day of June, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1161 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by parties. Findings of Fact proposed by the Petitioner: None Findings of fact proposed by the Respondent: 1. These are matters of law, and thus not appropriate as proposed findings of fact. 3.-4., 10. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. COPIES FURNISHED: Todd T. Catlette 3450 Palencia Drive, No. 1317 Tampa, Florida 22618 Reginald R. Garcia, Esquire Assistant General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32388-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350
The Issue The issue is whether the Respondent is guilty of misrepresentation, fraud, dishonest dealing, culpable negligence, or breach of trust in a business transaction contrary to Section 475.25(1)(b), Florida Statutes; and Whether, if the above allegations are proven, the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property transactions and rights of investors or others with whom he may sustain a confidential relation may not be entrusted to him by virtue of a second violation of Chapter 475, Florida Statutes, contrary to Section 475.42(1)(o), Florida Statutes.
Findings Of Fact The Respondent, Robert E. McMillan, III, is and was at all times material to the administrative complaint a licensed real estate broker holding license number 0317361. The Commission is charged under Chapter 475, Florida Statutes, with regulation of real estate brokers and salesmen. The Respondent was previously disciplined by the Commission by a Final Order dated September 2, 1992 in which the Commission found the Respondent guilty of violation of Sections 475.25(1)(b),(e),(k), and 475.42(1)(e), Florida Statutes. Dr. Manuel S. Couto and his wife desired to have a home built on Block 2, Lot 12 Marineland Acres, 1st Addition, Plat Book 5, page 50. They approached Respondent's business, which was a construction and real estate development concern, and spoke with Randy Joyner, a salesman employed by the Respondent and the brother of the Respondent's late wife, who had sold the Coutos the lot. The Respondent offered to build a particular house for the Coutos for $50,000. The Coutos counteroffered to purchase the house for $30,000 cash and to convey to the Respondent two lots described in the contract as: Section 29A, Block 7, Lot 4, Palm Coast, Florida, and Section 29A, Block 7, Lot 5, Palm Coast, Florida. Dr. Couto bought Lot 4 for $3,900, and Lot 5 for $4,900; however, he paid a total, including interest, of $15,264.80 for the two lots. Palm Coast is a real estate development located in the western portion of Flagler County in which the Respondent's business was located, and he was not particularly familiar with the area in which the Coutos' lots were located. The Respondent accepted the counteroffer, above, upon the recommendation of Joyner. The Respondent believed the lots in question to be valued at $10,000 each. The Coutos paid the Respondent $30,000, and the Respondent began construction. Shortly after commencement of the project, it was determined that the Respondent would have to do considerable site work in order to install a septic tank. The costs of this work, $5,400, was paid by the Respondent, and Dr. Couto wrote the Respondent an additional check in the amount of $1,900. In addition, Dr. Couto made numerous changes to the plans which raised the costs of the construction for which he was obligated to pay under the contract. Work progressed on the project until the Respondent became aware that the lots which were to be transferred were not valued at $10,000. A dispute arose between the Respondent and the Coutos regarding the Coutos paying the difference between the value of the lots and $20,000. When the dispute went unresolved, the Respondent ceased work on the project. Thereafter, the Respondent again began work on the project because of Dr. Couto constant badgering; however, the underlying disagreement about the value of the lots was unresolved. The Respondent finished the house at a cost to him of $55,004.82, and the Coutos paid him $38,425. When the second lot at Palm Coast was to be transferred, it was arranged to have the Coutos transfer the lot directly to the new purchasers, with the money, $4,690.37, due to the Respondent to be held in escrow pending payment of the subcontractors and materialmen building the Coutos' house. Dr. Couto prepared an affidavit that all the contractors had been paid for the Respondent to sign. It is this affidavit dated January 16, 1992, which purports to bear the signature of the Respondent notarized by Martha B. Bennett, Notary Public. The Respondent denies that the document bears his signature, and asserts that Dr. Couto signed the affidavit. Dr. Couto states that he saw the Respondent sign it, and the Respondent's secretary notarize it. The authenticity of this document was put in question by Respondent's answer to the administrative complaint, and the notary was not called as a witness. Dr. Couto and his attorney had attempted unsuccessfully to obtain similar affidavits from the Respondent, who had refused to sign them. At the time the affidavit was prepared, Dr. Couto was aware that materialmen had not be paid. The purported purpose of the affidavit was to release the funds retained by the title company. However, it was Dr. Couto who prepared the affidavit, and it was not presented to the title company to obtain the release of the funds. The affidavit was retained by Dr. Couto, and presented to the title company in June 1992, by Dr. Couto together with letters from Respondent stating that he was not going to pay the subcontractors. Upon the affidavit and letters, the title company paid the $4,690.37 to Dr. Couto. Given the background of the affidavit, the contradictory testimony about its execution, and the absence of additional authentication, the signature of the Respondent is not accepted as genuine. In spring 1992, various materialmen and subcontractors filed liens on the house being built for the Coutos. In order to clear the title to his home, Dr. Couto had to settle with the lienholders and pay them $14,878.18. As stated above, Dr. Couto received the proceeds from the sale of the second lot, $4,690.37. Subsequently, the matter was brought to the attention of the state's attorney. The Respondent paid the Coutos $3,000 in cash, and the state's attorney dropped the case against the Respondent after handwriting analysis was completed on the affidavit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the administrative complaint be dismissed. DONE and ENTERED this 29th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of November, 1994. APPENDIX The Petitioner submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 9 Paragraph 5,6 Paragraph 8,9,10 Paragraph 7 Rejected as contrary to better evidence, See Paragraph 13 Paragraph 8 Paragraph 15 Paragraph 9 Paragraph 16 COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Clifford A. Taylor, Esquire 507 East Moody Boulevard Bunnell, Florida 32110 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 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 26th day of March, 1982.
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 20th day of January, 2012.
The Issue Whether the license of Respondent, O. Tom Macon, should be suspended, or whether other disciplinary action should be imposed.
Findings Of Fact The Respondent, O. Tom Macon, is a registered real estate salesman residing in Fort Myers, Florida, who holds License number 0054554 as a real estate salesman. On April 20, 1978, an administrative complaint was filed against the Respondent alleging that he was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in a business transaction. The Respondent requested an administrative hearing. In January of 1974, Mr. James Fortiner, Dr. David Brown, and Respondent Macon purchased the Professional Arts Building in Fort Myers, Florida. The transaction was documented by a deed from the seller to the Respondent as trustee. Title was transferred to a corporation, Professional Arts Building of Fort Myers, Inc., in December of 1974. James Fortiner transferred his interest in the property to Respondent Macon, leaving the Respondent with a two-thirds interest in the property and Dr. Brown with a one-third interest. At a later date Respondent Macon obtained a $20,000.00 personal loan from a man by the name of Phil Elliott, secured by a second mortgage on the subject property. He did not secure Dr. Brown's permission to mortgage the property or tell him of the encumberance. Subsequently, Respondent Macon contracted to sell the Professional Arts Building to Jeanne L. Eveleth in February of 1976. At the closing in March of 1976, which Dr. Brown did not attend, a check for $33,433.42 was deposited to the account of the Professional Arts Building, Limited. Simultaneously, Respondent Macon paid his personal debt to Mr. Elliott out of the proceeds of the sale and satisfied the mortgage. A final statement established that Respondent Macon owed personal debts to the limited partnership in the amount of $6,972.45, and that the limited partnership owed Dr. Brown this amount of money. After the sale of the property and the payment of Respondent's personal debt out of the proceeds, there were no assets left in the corporation. When confronted with this situation, the Respondent promised Dr. Brown he would pay him the money the Respondent had used without authorization, but in November of 1976, the Respondent went into voluntary bankruptcy. At that time Respondent Macon still owed Dr. Brown the full amount due to Dr. Brown as a result of the sale of the subject property. Bankruptcy, however, has no effect on the authority of Petitioner to discipline. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends suspension of Respondent O. Tom Macon's license until such time as he makes full restitution to Dr. Brown. DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
Findings Of Fact Respondent, at all times pertinent, was a registered real estate salesman holding license number 0314085. This license is currently under suspension as a result of disciplinary action by Petitioner. Respondent was, at all times pertinent, the President and a stock holder in D.S.A.E., Inc. D.S.A.E., in turn, was the owner (or co-owner with another corporation) of a tract of land located adjacent to U.S. Highway 27 in Broward County. Respondent, acting in his capacity as a real estate salesman, sought buyers for segments 1/ of the U.S. 27 property. He had made earlier sales of other property to Mrs. Lottie Kay and her son Michael Kay, and contacted the former in October, 1980, regarding the U.S. 27 property. The D.S.A.E. tract was zoned B-3 (business) on that portion which fronted U.S. 27. The rear segments were zoned A-1 (limited agriculture) and did not front U.S. 27. Initially, Respondent mentioned segments being offered for $60,000 and $24,000. However, Lottie Kay indicated that she could not afford the higher priced segments (which were zoned B-3). Lottie Kay asked Respondent to show her the property, and a visit to the general area was made. However, Respondent told her they could not get to the property which he said was located "on the other side of the construction." After visiting the area, she was not aware of the actual location of her property or of its character. 2/ She continued to believe that the property was "right on" U.S. 27. She based this belief on Respondent's original sales presentation rather than her visit to the area. The segment she purchased is about one quarter of a mile from U.S. 27. Lottie Kay was also confused as to the zoning on the property. She believed it was "commercial" and does not recall being told of the agricultural zoning by Respondent until about a year after the purchase. Her son, Michael Kay, who was present during a part of Respondent's initial sales presentation, heard only the B-3 zoning mentioned. Since he was not present throughout the discussion, he could have missed Respondent's reference, which he claims to have made, to the agricultural zoning on the back segments. On October 8, 1980, Lottie Kay, as buyer, contracted with Respondent on behalf of D.S.A.E. and a third party corporation, as sellers, to purchase "Tract 14" for $24,000 on an "agreement for deed." Under the terms of the contract, Lottie Kay paid $4,000 down and was to pay $215.59 per month thereafter beginning in November, 1980. Lottie Kay made the monthly payments through 1983. When she missed her first two payments in 1984, Respondent offered to reduce the contract price by $2,000 if she would resume monthly payments and make up the missing payments. Lottie Kay agreed to this modification of the contract, but discontinued further payments in April, 1984. Lottie Kay bought this property for speculation in reliance on Respondent's claim that its value would increase substantially in the immediate future. Respondent showed her newspaper clippings which supported his claim that the general area was one of future growth. He predicted her segment would be worth at least $30,000 in one year and stated that as to possible appreciation, "The sky's the limit." Respondent did not, however, point out that Lottie Kay's property could not be resold for any use other than agriculture since her segment was too small for even a home site under the existing zoning. Respondent also neglected to advise her that the property was underwater much of the year, and would have to be filled and probably permitted before any development could take place. The testimony of a real estate appraiser called by Petitioner established that the property was worth about $750 when purchased by Lottie Kay in October, 1980. 3/ This valuation was based on the witness' study of nearby land sales over a period of years as well as his inspection of the area in which the Kay segment is located. Respondent attempted to establish a higher market value by producing various warranty deeds whereby he or his affiliates had sold similar segments to other buyers for amounts approximating that agreed to by Lottie Kay. These sales do not establish value but, rather, indicate the gullibility of other buyers in making such purchases. After she fell behind in her payments, Lottie Kay tried to resell her property through Respondent in reliance on his claim at the time of his initial sales presentation that he could resell it for her in one week. When requested to do so he was unable to produce any prospective buyer. Thus, there appears to be no real market for this property, other than that generated by Respondent in his initial sales campaign. Lottie Kay did not consult an attorney or have the land surveyed or appraised prior to contracting for the purchase. Rather, she trusted Respondent who she knew to be a real estate professional. She was also aware that he was an owner of the property, but still believed she could rely on his statements that the current market value of her segment was at least $24,000 and that future profits were assured. Respondent attacks the fairness of these proceedings on the alleged misconduct of Petitioner's investigator, who encouraged Lottie Kay to come forward after she (with the help of her son) had filed a complaint with Petitioner. The investigator made statements to the Kays which indicated his belief that Respondent was engaged in fraudulent land sales, and was a menace to the public. Although the investigator's statements to the Kays were gratuitous and inconsistent with his fact finding role, there is no indication that such statements resulted in any false testimony or other unreliable evidence. Respondent notes that Lottie Kay continued to make payments on her contract with Respondent even after she had filed a complaint with Petitioner and reasons that she must have considered the property a worthwhile investment. Lottie Kay demonstrated through her testimony and recitation of her dealings with Respondent that she is gullible and imprudent in financial matters. Thus, her continued investment of funds in this property indicated lack of prudence rather than an informed belief that the property had any substantial value.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of misrepresenting property value as charged in Count II of the Administrative Complaint, in violation of Subsection 475.25(1)(b), Florida Statutes, and suspending his license as a real estate salesman for a period of three years to begin upon completion of his current license suspension period. DONE and ENTERED this 3rd day of December, 1984 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 3rd day of December, 1984.
