Findings Of Fact At all times material to these proceedings, Respondent Valz was a licensed real estate broker in Florida, and held license number 0399628. At all times material to these proceedings, Respondent Edison was a corporation registered as a real estate brokerage in Florida, and held license number 0244097. Respondent Valz was the active broker for Edison, and held the office of vice-president for the corporation. Mr. Gilles A. Pageau, an owner and president of Edison, is a real estate investor and developer from Canada who does not have a real estate salesman's or broker's license. The corporation was formed and registered as a real estate brokerage in Florida in order to reduce the cost of real estate commissions paid on Florida lands purchased for development purposes. Normally, Mr. Pageau negotiates and handles Florida real estate purchases by himself, without the assistance of Respondent Valz. The corporation is named as his broker, and the customary commission on large tracts of land is split between Edison and the listing broker. Essentially, to Mr. Pageau, the placement of a portion of the real estate commission with Edison results in the saving of commission costs. Such monies do not actually go to Respondent Edison. Instead, Mr. Pageau pays that much less for the real property during purchase. In August 1987, Mr. Pageau, as trustee, entered into formal negotiations with Frank W. Helmerich, as trustee, regarding the purchase of a large tract of raw land in Lee County, Florida. Although Respondent Valz was not involved in the negotiations, she witnessed Mr. Pageau's signature on one written offer to purchase the real property. Mr. Pageau signed the offer in his capacity as trustee, and Respondent Valz acknowledged that she had received a ten thousand dollar note as an earnest money deposit from Mr. Pageau in her capacity as escrow agent for Respondent Edison. The proposal was rejected by Mr. Helmerich and his principals and the offer became void. Eventually, a contract for sale and purchase of the property was entered into between the parties to the transaction on November 1, 1987. Respondent Valz was not involved in the negotiations and had no personal knowledge that a contract had been completed between the parties until a later date. As part of the contract, Mr. Pageau, trustee, agreed to place his earnest money deposit on the property with Edison in its escrow account. The contract required that twenty-five thousand dollars be placed in the escrow account. Page 2 of the offer, which became the contract, has a handwritten note over the typed provisions in paragraph Q which states, "Escrow are with agent." The first page of the contract states that the escrow agent is Edison Properties, one of the Respondents in this proceeding. On November 2, 1987, an employee of Respondent Edison, acting under the direction of Mr. Pageau, in his capacity as the president of Respondent Edison, placed a promissory note signed by Gilles A. Pageau, maker, into a bank for safekeeping. The note was to be paid to Edison Properties, Inc., and was not made payable until the closing of the land purchased from Mr. Helmerich, trustee. As the promissory note did not contain a date certain for payment, it was not a completed instrument at the time it was accepted by Respondent Edison, through Mr. Pageau, president, in its capacity as escrow agent. The promissory note, on its face, did not meet the requirements set forth in the contract for sale and purchase. The twenty-five thousand dollars was not in any escrow as these funds were not earmarked and reserved for use in this business transaction. Mr. Helmerich did not have the consideration or the liquidated damages reserves he believed he had acquired for the sellers under the terms of the contract. The closing did not take place as set forth in the contract between Mr. Pageau, trustee, and Mr. Helmerich, trustee. On December 16, 1987, demand was made upon Respondent Valz, as the active broker for Respondent Edison, to release the escrowed twenty-five thousand dollars to Mr. Helmerich, trustee, as liquidated damages under the contract. This demand was the first time Respondent Valz was aware that an earnest money deposit was allegedly in an escrow account in Edison Properties, Inc. After the initial demand for the escrow deposit was made, Mr. Pageau, as trustee, directed Respondent Valz, as broker for Respondent Edison, to hold the escrow deposit until further notice. A copy of this letter was sent to Mr. Helmerich by Mr. Pageau. In fact, pursuant to the terms of the promissory note, an escrow did not exist, and the letter was further perpetration of the fraud upon the sellers regarding the earnest money deposit. On December 18, 1987, Mr. Helmerich and Mr. Pageau jointly signed a letter which directed Respondent Valz to disburse all deposit monies held by Respondent Edison to the sellers. Mr. Pageau's signature on the letter was a continued perpetration of the fraud because an escrowed money deposit still did not exist. On or about January 7, 1988, the seller's attorney Truman J. Costello, demanded the earnest money deposit from Respondent Valz, as broker for Edison. On January 12, 1988, Respondent Valz, as broker for Respondent Edison, responded in writing to the attorney's demand. In her letter, Respondent Valz stated that the deposit would be transferred to Chicago Title, in cash, on or before January 22, 1988. The letter further advised that the parties to the contract were attempting to settle the dispute. In response to the attorney's inquiry, Respondent Valz explained in the letter that she did not notify the Real Estate Commission of conflicting demands on the earnest money deposit because the parties were attempting to resolve their dispute and were trying to close the real estate transaction. 14 An escrowed money deposit still did not exist at the time this letter from Respondent Valz was sent. It is unknown whether Respondent Valz was aware that the promissory note was without value. The note may still have been in the bank, hidden from direct inspection by Respondent Valz. The funds Respondent Valz stated would be transferred were never placed with Chicago Title, and Mr. Pageau as trustee, has not purchased the property or paid the liquidated damages. No aggravating or mitigating circumstances were presented to the Hearing Officer.
Recommendation Based upon the foregoing, it is RECOMMENDED: That all violations charged against Patricia Smithwick Valz, as set forth in the Administrative Complaint, Case No. 88-4667, should be dismissed. That the registration of Edison Properties, Inc. as a real estate brokerage in Florida be revoked for five years based upon the finding that the Respondent, through the acts of its corporate president, is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count II of the Administrative Complaint. That the violations charged against the Respondent, Edison Properties, Inc. in Count IV and Count VI, should be dismissed. DONE and ENTERED this 14th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 14th day of February, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO number 1. Accepted. See HO number 2. Accepted. See HO number 3. Rejected. Contrary to fact. A genuine promissory note which had any value did not even exist. See HO number 5 - number 8. Accepted. Accepted. Accepted. See HO number 9. Accepted. Rejected. Contrary to fact. See HO number 11. Accepted. See HO number 12. Rejected. No earnest money existed. Contrary to fact. See HO number 10 and number 14. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO number 1. Rejected. Contrary to fact. See HO number 6. Rejected. Irrelevant. Accepted. See HO number 3. Accepted as to Respondent Valz. See HO number 5. Rejected as to Respondent Edison. Contrary to fact. See HO number 6 - number 8. Accepted. But the reason was the fraud perpetrated by Mr. Pageau. See HO number 8. Rejected. Irrelevant. Accepted as to Respondent Valz. Rejected as to Respondent Edison. See HO number 9 - number 10 Accepted. See HO number 5 and number 9. Accepted as to Respondent Valz. See HO number 5. Rejected as to Respondent Edison. See HO number 6 - number 8. Rejected. Irrelevant. Accepted. Rejected. The real estate sales and purchase agreement establishes facts to the contrary. Rejected. Speculative. Accepted. See HO number 5. Accepted. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. Accepted. See HO number 7. Accepted. See HO number 9. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32775 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Respondent filed application for registration as a real estate salesman on June 24, 1974 and was issued a license pursuant to this application on October 25, 1974. At the time of the filing of the application and subsequent thereto, Respondent was employed by Florida Savings and Loan Services, Inc. and its predecessor company, Florida Informanagement Services, Inc. in the capacity of a real estate appraiser and head of the appraisal department for said company. On July 26, 1975 Respondent performed appraisal services on behalf of Central Development, Inc. to ascertain the fair market rental appraisal of 5 Pizza Huts. For this service his company, then Florida Informanagement Services, Inc. billed Central Development, Inc. $3,000. Respondent performed other appraisals during the period in question which were not specifically delineated at the hearing.
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
Findings Of Fact On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months. RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February,1982 COPIES FURNISHED: Theodore J. Silver Esquire 9445 Bird Road Miami, Florida 33165 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1982.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Thompson be suspended for a period of one year. DONE and ORDERED this 6th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert J. Pierce, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Calvin Dawson Thompson Route 1, Box 1075 Oviedo, Florida 32765 =================================================================
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Recommendation The Hearing Officer having found factually that the Respondents did not violate the provisions of Chapter 475 Florida Statutes, as charged, recommends that no action be taken against the registration of any of the Respondents. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Spencer Fox, Esquire Suite 107, 9065 Galloway Road Miami, Florida 33176
Findings Of Fact Vincent A. Riggio was at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0206262, effective in 1978, and as such was authorized to prepare real estate appraisals. Respondent completed basic real estate appraisal classes and attended seminars relating to property appraisal. Respondent was an associate with Grover H. Vass & Associates, Inc., 414 West Colonial Drive, Orlando, Florida from July 11, 1986 to December 21, 1988. Respondent's appraisal services were retained by United Mortgage Company on an ongoing basis for the purpose of granting second mortgage loans. In September, 1986, Respondent was requested by United Mortgage Company to prepare the subject appraisal for property located in Lake County, Florida, that was owned by Floyd Bush and his wife. The subject property consisted of land, a single family residential structure, and plant nursery structures and equipment. Pursuant to the request of United Mortgage Company, Respondent undertook the subject appraisal and performed reasonable and necessary investigations and reviews to prepare the same. Respondent had appraised the subject property once before and was aware of the property's unique character. Respondent visited and viewed the property. He observed the nursery business in operation at the time of the inspection. He also attempted to obtain comparable sales and market data but found that , due to the location and uniqueness of the property, he would be required to use, in part, an appraisal method based on the cost approach. Respondent determined the current market value of the property to be $136,800 and prepared his written appraisal report accordingly. The report was transmitted to United Mortgage Company as directed by and with the limitations imposed by them. Respondent had no financial interest in the real estate being appraised nor in any other aspect of the subject transaction. George Jeknavorian loaned $23,500 to Mr. and Mrs. Floyd Bush. The loan was secured by a second mortgage on the subject property, which was processed through United Mortgage Company in September, 1986. At the time of the loan, George Jeknavorian had neither seen the subject appraisal report nor the subject real estate. He relied on persons other than Respondent for his information relating to this loan transaction. The property was apparently encumbered by a first mortgage in the approximate amount of $64,800 at the time of the second mortgage which made a total debt on the property of approximately $88, 300. After two payments had been made subsequent to the closing of the second mortgage loan transaction, the Bushs defaulted on the required payments. Thereafter, Jeknavorian opted to accept a deed in lieu of foreclosure instead of proceeding forward with the foreclosure. Jeknavorian became the owner of the subject property in March of 1988. Jeknavorian listed the property for sale with Ms. Jean Williams, a licensed real estate salesperson. She determined the value of the property to be between $100,000 and $110,000, and with the concurrence of the new owner, she listed it for sale at $110,000. When she inspected the property in 1988, before listing it, Williams observed it to be in serious disrepair. The property as listed consisted of a house, land and plant nursery with all equipment, but with no inventory and no warranty as to the equipment. The price was reduced, but the property did not sell. In late 1988, the holder of the first mortgage took back the property. At that time, Jaknavorian had invested or was owed a total of $33,000. His losses consisted of the amounts due and owing on the second mortgage, payments to the holder of the first mortgage after he became the owner of the subject property and the costs of trash removal after he became the owner of the property in March, 1988. The most credible testimony indicates that the appraisal had several technical defects, but, as a whole, was acceptable to the requirements of United Mortgage Company for which it was prepared.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against Respondent be DISMISSED. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 January, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted: paragraphs 1,2 (in substance),3,4(in part),6 and 7(in substance) Rejected: paragraphs 5 and 4 (that portion of paragraph 4 which proposes that the complaining witness relied upon the appraisal to his detriment and also that the property was worth no more than $95,000 at the time of the appraisal) as unsupported by the weight of the evidence. Respondent's Proposed Findings of Fact: Accepted: paragraphs 1,2 (in part) ,3,4 (in substance) ,5,7 (sentence 1), 8, 10, 11(in substance), 13(in substance), 14(in substance) Rejected: paragraphs 6(witness not credible),7(several sentences not relevant), 9 (argument). COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32802 Robert L. Taylor, Esquire 225 E. Robinson Street Suite 445 Orlando, FL 32801 Darlene F. Keller Division Director 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Respondent Holt is a registered real estate salesman having been issued license number 0334695. She has not been issued a real estate broker's license. Count II of the Amended Administrative Complaint concerns a failure by the original Respondents to timely place an earnest money deposit in escrow. These funds came into the hands of Donna Duffy, the broker, and Best Sellers Group, Inc., the brokerage firm, on February 14, 1981, but were not deposited until February 23, 1981. Former Respondent Duffy and Respondent Holt testified on the question of who was responsible for making the deposit. These individuals have had a falling out and their testimony was conflicting as well as self-serving. Other testimony supporting this charge was inconclusive. Counts II and III concern a property lease which Respondent arranged for out of state property owners after she left the Atkins, Green, Stauffer and Clark brokerage. The lease arose out of an exclusive right of sale listing with this firm. However, the brokerage was not interested in handling the lease and Respondent undertook this transaction as a favor to the property owners. Holt located a potential lessee in October, 1980. She then forwarded a copy of the lease agreement to the owners along with a bill for her expenses and her personal check for $495. This amount equaled the first month's rent and security deposit which she had collected from the lessee. Thereafter, the property owners negotiated Holt's check, but it was dishonored by the bank. Subsequently, the property owners were deprived of a further $395 in rent collected by Holt. In August, 1981, Holt made restitution in the amount of $890. In mitigation, Holt stated that her estranged husband had withdrawn the original funds intended to cover the returned check. She also had experienced other expenses of divorce and family problems which led her to spend funds she subsequently collected. In further mitigation, Holt pointed out that she did not seek a commission for obtaining the lease, nor did she charge a monthly fee as is customary in such matters when handled through a brokerage.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent Mary Ann Holt guilty as charged in Counts II through VI of the Amended Administrative Complaint, and suspending her real estate salesman's license for a period of three years. DONE and ENTERED this 11th day of January, 1983, 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 11th day of January, 1983.
