The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not Petitioner's application for licensure as a Real Estate Salesman should be approved.
Findings Of Fact Based on my observation of the Petitioner and his demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. On approximately February 12, 1987, Petitioner filed an application to take the Florida real estate salesman's examination. In answering Question #6 of the application, regarding applicant's criminal record, Petitioner answered in the affirmative. Petitioner set forth the details, stating: "On May 14, 1985, plead (sic) nolo contendere to the offense of sexual battery. Through plea bargaining was sentenced to 10 years probation, which I am currently in good standing. Case was instituted by my sons (sic) girlfriend, who was living in my home. I had no witnesses in my behalf, made plea through the Public defenders (sic) office (I was not guilty)." (Respondent's Composite Exhibit 1) During the hearing, Petitioner admitted that he affirmatively responded to Question #6 on the license application and, in explanation, states that he was unable to retain an attorney when charged and he, upon advice of a public defender, entered the nolo contendere plea as a "plea of convenience". Petitioner did not present any witnesses at the hearing other than his testimony on his behalf. Petitioner denied that he was guilty of the crime that he was charged and related that his son and his girlfriend lived with him from approximately 1969 through 1980. Sometime during 1980, the son became a "problem child" and was unmanageable. For that reason, the son was placed in the care and custody of the Department of Health and Rehabilitative Services (HRS). Petitioner again took custody of the son when he reached his seventeenth birthday so that the son and his girlfriend could live with him during commencing September 30, 1983. Approximately one year later, during April, 1984, he was charged with the crime of sexual battery. In mitigation, Petitioner avers that he is in good standing with his probation officer and that he was formerly a police officer with the Miami Police Department. Petitioner offered no corroborating witnesses or other independent evidence to refute the charges or to otherwise offer testimony as to rehabilitation of his character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner's application to take the Real Estate License Examination be DENIED. RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: Manuel E. Oliver, Esquire Department of Professional Regulation Assistant Attorney General Suite 212, 400 West Robinson Street Orlando, Florida 32801 William F. Demler 11532 Terra Bella Boulevard Plantation, Florida 33325 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0760 William ONeil Department of Professional Regulation General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0860
The Issue The issues posed for decision herein are whether or not, based on conduct which will be set forth hereinafter in detail, the Respondent is guilty of a course of conduct constituting fraud, misrepresentation, concealment, false promises, etc., in violation of Subsection 475.25(1)(b), Florida Statutes (1979); whether or not Respondent has obtained a real estate license by means of fraud, misrepresentations or concealment, in violation of Subsection 475.25 (1)(m), Florida Statutes (1979); whether or not Respondent has been guilty of fraud, misrepresentation, false promises and false pretenses, in violation of Subsection 475.25(1)(b), Florida Statutes (1979); and whether or not Respondent has been guilty of a crime against the laws of this state involving fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes (1979). 2/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. Patricia C. Alters, Respondent herein, is a registered real estate salesperson and has been so registered since approximately February 18, 1980. Respondent has been issued License No. 0330568 by the Petitioner. On November 10, 1979, Respondent made an application for registration as a real estate salesperson to the Florida Real Estate Commission. Question No. 6 of that application required that Respondent report if she had ever been arrested for or charged with the commission of any offense against the laws of any municipality, state or nation. Respondent filed a negative response to question No. 6. (Petitioners Exhibit No. 1.) On June 18, 1979, an arrest warrant was issued in Duval County, Florida, charging Respondent with issuing worthless checks and drafts, in violation of Chapter 832, Florida Statutes (1979). Pursuant to that warrant, Respondent was arrested on June 20, 1979, by the Clay County Sheriff's Department. Respondent was booked and released on her own recognizance. (Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 1.) On May 19, 1980, Respondent was charged with the issuance of a worthless check drawn on or about December 19, 1979, in the amount of $12.71. The check was issued to the J. C. Penney Company, Inc. (Petitioner's Exhibit 4.) Respondent pled guilty to said charge and was adjudged guilty by the court on May 19, 1980, in criminal proceeding No. 80-9979MM in the County Court of Duval County, Florida. She was fined $50.00 plus court costs. (Petitioner's Exhibit No. 5.) On or about October 7, 1978, Respondent leased a residence located in Clay County, Florida, from one Lon E. Brugh. Respondent defaulted on said lease on several occasions failure to timely pay the rent and late charges, namely the rent for the months of June and July, 1979, and for late charges on the months of October, November and December, 1978, and January through July, 1979. Lon E. Brugh filed a civil suit in the County Court in and for Clay County, Florida, and charged that the Respondent had defaulted on the terms of the lease. On November 30, 1979, Respondent was adjudged to be in default of said lease and ordered to pay to Lon E. Brugh the sum of $929.05 plus his (Brugh's) costs of $34.00. Evidence reveals that Respondent issued three (3) checks to Lon E. Brugh during late April and early May of 1979, for payment of rent and late charges for the residence which she leased from Brugh. Evidence also revealed that Respondent immediately instructed her bank to place stop payments on the checks which she had issued to Brugh for rent payments. Respondent contends that she placed stop payments on these checks due to a dispute that she had with Brugh concerning her responsibilities under the lease. Evidence reveals that the checks here involved were either for past due rents or for late charges. (Tr. pp. 62-66.) RESPONDENT'S POSITION AND DEFENSE Initially, Respondent's position is that she was not licensed when the civil suit was filed by Lon E. Brugh or when she entered the lease agreement and therefore the facts surrounding the civil suit and related matters which occurred prior to her licensure should not be considered as a basis for Petitioner to take disciplinary action. Secondly, Respondent countered that she issued all checks, which were the basis for the civil action filed by Brugh while she was hospitalized during April and May of 1979. Respondent contends that Mr. Brugh deposited the three (3) checks before she could make a deposit in her bank to cover the checks inasmuch as she was in the hospital. Respecting the events surrounding Petitioner's allegation that Respondent was arrested, Respondent counters that she thought that she had never been arrested, inasmuch as she was driven to the sheriff's office in Clay County during the early morning hours on June 20, 1979, pursuant to a warrant issued by the Duval County Sheriff's Department. That arrest centered around a worthless check which Respondent issued to Sears. Respondent does not deny that the check was worthless when issued; however, she points out that restitution has been made to Sears. In support of her belief that she had not been arrested, Respondent points to the facts that she did not post bond; was not placed behind bars and was allowed to leave under her own recognizance. In response to that charge, Respondent entered a written plea of not guilty. She therefore considered that she was not arrested. (Petitioner's Exhibit No. 3.) As to the circumstances surrounding the worthless check which Respondent issued to Penney's during December of 1979, Respondent noted that she made restitution for said check; that Penney's returned the monies which she paid them, inasmuch as she did not obtain the merchandise which was in the form of a lay-a-way purchase. Respondent admits to her plea of guilty; however, she testified that she had been issued a $3,500.00 check which was deposited into her account and was returned for non-sufficient funds, which, in turn, caused several of her checks to be returned. Finally, Respondent generally denied all of the allegations involved herein and affirmatively stated that she made restitution for all of the checks which had been returned returned for non-sufficient funds; that she has established a good record of honesty and trustworthiness in the community and is well respected by realtors and other officials involved in the real estate business in the area. (Testimony of Respondent, Ken O'Leary, Sheldon Wardwell, John Drago and Peter Dalton.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license as a real estate salesperson be revoked and that the revocation be suspended for a period of forty-five (45) days during which time Respondent shall be afforded an opportunity to re-submit her application to be licensed as a real estate salesperson. It is further RECOMMENDED: That, in the event Respondent re-submits a, new application to be licensed as a real estate salesperson, which truthfully and completely responds to Question 6 of that application, Petitioner consider the character and mitigating evidence offered by Respondent herein. In such case, if Respondent re-submits her application for licensure within the above-referred forty-five (45) day period, it is further RECOMMENDED: That Respondent, after completing the filing of a new application as set forth herein, which otherwise fully satisfies and comports with Petitioner's procedures, be issued a new license, which license shall be placed on a probated status for a term of two (2) years. DONE and RECOMMENDED this 22nd day of June, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of June, 1982.
Recommendation Deny the application of Petitioner for Registration as a salesman for the Florida Real Estate Commission. DONE and ENTERED this 6th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Dwaine Eugene Spann Route 2, Box 376S Sarasota, Florida 33582
Findings Of Fact This cause came on for consideration based upon the Administrative Complaint filed by the Petitioner, Florida Real Estate Commission vs. Cecil V. Cancer t/a Cancer Realty, Respondent. The Respondent has opposed the Administrative Complaint and demanded a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The Florida Real Estate Commission is an agency of the State of Florida which has as its primary function the regulation of certain licensees who hold various registrations with the Petitioner. The Respondent, Cecil V. Caneer t/a Caneer Realty, holds License No. 0012862, under the authority of the Florida Real Estate Commission. This license entitles the Respondent to act as a real estate broker in the State of Florida. At all times pertinent to the Administrative Complaint, the Respondent has been so licensed. On August 12, 1974, the Respondent entered into a management agreement with James Thomas Quinn and his wife, Phyllis J. Quinn, to manage certain property in Jacksonville, Duval County, Florida, located at 5639 Minocqua Street. The terms and conditions of that management agreement may be found in the Petitioner's Exhibit No. 3 admitted into evidence. This management agreement entitled the Respondent to receive certain brokerage fees for his services to the Quinns in leasing, collecting rents, maintaining the property, entering into service contracts, effecting certain repairs and making disbursements from the owners' proceeds and with a portion of the rents to be deposited for purposes of satisfying the mortgage payments owed on the property. In addition, the Respondent was responsible for making periodic itemized statements of receipts, expenses, charges and accruals, and to remit the net proceeds to the owners. The Quinns, through the management agreement, agreed to pay the various percentages set forth in the brokerage fee arrangement and to assume the full responsibility for the payment of expenses and obligations incurred in connection with the exercise of the Respondent's duties under the management agreement. The owners left the State of Florida at a time when the management agreement was still in force and effect. In November and December, 1976, the property was in a state of disarray, and a number of items needed to be repaired. Under the terms and conditions of the management agreement and with the written permission of Mrs. Quinn, dated December 20, 1976, the Respondent made a number of repairs to the property. The letter spoken of may be found as the Petitioner's Exhibit No. 4 admitted into evidence. The Respondent also made two mortgage payments in behalf of the Quinns for the months of December, 1976, and January, 1977. An itemized statement of the monies expended by the Respondent, less the security deposit of the tenants who were living in the rental property in late 1976, may be found in the Petitioner's Exhibit No. 2 admitted into evidence. The Respondent requested the Quinns to reimburse him for the money that he had paid in making repairs and for the mortgage payments made on the property. The Quinns refused to pay the Respondent, and acting on the advice of his attorney, the Respondent filed a claim of lien against the subject real property at 5639 Minocqua Street, Jacksonville, Duval County, Florida, which is the property of the Quinns. The Claim of Lien may be found as the Petitioner's Exhibit No. 1 admitted into evidence. It sets out that the Respondent spent $220.58 for certain repairs and payments for other repairs, with the total value of materials and labor being $441.79. In fact, the $220.58 was spent for the mortgage payments on the property for the months of December, 1976, and January, 1977. The balance of the $441.79 was for the items of repairs as itemized in Petitioner's Exhibit No. 2, less the security deposit spoken of. At the time the lien was placed, the Respondent was also of the persuasion that the Quinns intended to sell the property. Under these facts as shown, the Petitioner, Florida Real Estate Commission, is convinced that the Respondent has violated certain laws pertaining to his licensure by the Florida Real Estate Commission. Specifically, the Petitioner feels that the act by the Respondent of placing the lien upon the public records of Duval County, Florida, against the property of the Quinns, was a utilization of a document which purports to affect the title of, or encumber, the real property of the Quinns and was for the purpose of collecting a commission or to coerce the payment of monies in violation of Subsection 475.42(1)(j), Florida Statutes. The Petitioner believes that these acts constitute a violation of Subsection 475.25(1)(d), Florida Statutes, and finally, that for these acts the Respondent is guilty of dishonest dealing, in violation of Subsection 475.25(1)(a), Florida Statutes. The lien in question does purport to affect the title of and encumber the real property of the Quinns, and it has been placed by the Respondent, a real estate broker licensed by the Florida Real Estate Commission. It has been placed in the public records of Duval County, Florida. However, it was not placed for the purpose of collecting a commission or to coerce the payment of money to the Respondent. The Respondent was acting under the express authority of the management agreement and letter of instruction of December 20, 1976, from Mrs. Quinn, and pursued his legal remedies by filing the lien, when it was determined that the Quinns did not intend to reimburse him for the authorized expenditures and mortgage payments on the rental property. Likewise, there has been no showing that the Respondent is guilty of dishonest dealings in violation of Subsection 475.25(1)(a), Florida Statutes. When the alleged violation of Subsection 475.42(1)(d) Florida Statutes, failed, the allegation under Subsection 475.25(1)(d) becomes irrelevant, due to the fact that the purpose of Subsection 475.25(1)(d), Florida Statutes, is to implement the penalties found in Section 475.25, Florida Statutes, in the event of any violation of provisions of Chapter 475, Florida Statutes, other than Section 475.25, Florida Statutes violations.
Recommendation It is recommended that the Petitioner, Florida Real Estate Commission, dismiss the Administrative Complaint against the Respondent, Cecil V. Caneer t/a Caneer Realty, and allow the Respondent to go forth without further necessity to answer to those allegations. DONE and ENTERED this 22nd day of November, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Salvatore A. Carpino, Esquire Florida Real Estate Commission Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802 David C. Goodman, Esquire 1387 Cassat Avenue Jacksonville, Florida 32205
