The Issue The issue in this case is whether Respondent, Jerry Green, acted as a yacht and ship broker as defined in Section 326.022(1), Florida Statutes, without being licensed by Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, as alleged in a Notice to Show Cause entered September 3, 1996.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter referred to as the “Division”), is an agency of the State of Florida. The Division is charged with the responsibility for carrying out the provisions of Chapter 326, Florida Statutes, the Florida Yacht and Ship Brokers’ Act (hereinafter referred to as the “Act”). Respondent is Jerry Green. Mr. Green is not licensed by the Division pursuant to the Act as a yacht and ship broker. At all times relevant to this proceeding, Mr. Green was employed at Rick’s on the River (hereinafter referred to as “Rick’s”), in Tampa, Florida. Mr. Green was compensated for his employment at Rick’s by being provided room and board. During 1996 the Division received an anonymous complaint including a copy of an advertisement from a October 13, 1995 edition of a publication known as the “West Florida Boat Trader”. The advertisement indicated it was from Rick’s and included several photographs of boats purportedly for sale at Rick’s. Among other boats listed on the advertisement was the following: 1975 42’POST Full Tuna Tower, Twin Turbo Charge Detroit 671 Out of Town Owner DESPARATE to Sell, $84,500 A similar advertisement was placed in the November 3, 1995 edition of the “West Florida Boat Trader”. Although Mr. Green denied at hearing that he had placed the advertisement, he admitted in his Response to Notice to Show Cause that “between October of 1995 and May of 1996 he advertised a 1975 42’ Post named the ‘Dunn Deal’ . . . .” He also admitted in the Response “that he advertised the 42’ Post at the request of the owner, Richard Dame, who is a personal friend, for the purpose of testing whether there was a market for such a boat and to determine the approximate value of the boat.” It is, therefore, concluded that Mr. Green was responsible for the advertisement. On May 31, 1996, James Courchaine, an investigator for the Division, went to Rick’s. After arriving at Rick’s, Mr. Courchaine met Mr. Green. Mr. Green identified himself as the “dockmaster”. Mr. Courchaine asked about the 42-foot Post and Mr. Green told him that he knew all about the Post and could talk to Mr. Courchaine about it. Mr. Green told Mr. Courchaine the Post belonged to a friend and that he, Mr. Green, could sell it. Mr. Green also indicated the Post was in Key West and that he wasn’t sure if the owner would be bringing it back. Mr. Green also told Mr. Courchaine that the owner was originally asking $84,500.00 for the Post but, that since it had been on the market so long without any interest, he might take between $79,000.00 and $81,000.00 for it. Mr. Courchaine asked Mr. Green whether the amount Mr. Green quoted included Mr. Green’s commission. Mr. Green told Mr. Courchaine that “he would be taken care of.” Mr. Green wasn’t employed as the dock master at Rick’s. Mr. Green lived on the premises and looked after the property, including boats located there. In return, he received room and meals. At the time of the formal hearing Mr. Green testified that he was not employed and that his only source of funds is Social Security. He also testified, however, that he still lives at Rick’s. The evidence failed to prove that Mr. Green has any source of funds other than Social Security. The evidence failed to prove that Mr. Green offered to sell any vessel regulated under the Act except as described in this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes ordering Jerry Green to cease and desists from acting as an unlicensed broker in violation of the Act and that he pay a civil penalty in the amount of $500.00 within thirty days of the date this matter becomes final.DONE and ORDERED this 28th day of April, 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Suzanne V. Estrella Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Paul T. Marks, Esquire Post Office Box 4048 Tampa, Florida 33677 Lynda L. Goodgame General Counsel Department of Business & Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert H. Elizey, Jr., Director Department of Business & Professional Regulation Florida Land Sales, Condominium & Mobil Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792
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, I hereby make the following findings of fact: On January 27, 1986, the Petitioner, Gary J. Anthony, submitted an application for examination as a limited surety agent (bail bondsman) with the Department of Insurance and Treasurer. By letter dated August 27, 1986, the Respondent denied Anthony's application, stating in part that: your Application for Examination as a Limited Surety Agent must be denied because your history of arrests and charges indicates a person of untrustworthiness and lack of high character and approved integrity. On August 26, 1986, the Petitioner was arrested in Connecticut and charged with the felony offense of aggravated assault. The Petitioner was subsequently convicted of misdemeanor assault. In 1970, the Petitioner was arrested by civilian authorities and surrendered to military authorities for an alleged 5 day unauthorized absence. There was no evidence as to what action, if any, the military took with regard to this alleged offense. The Petitioner subsequently received an honorable discharge for his service with the United States Marine Corps. On June 27, 1972, the Petitioner was arrested in Connecticut and charged with the felony offense of assault in the first degree. The Petitioner was subsequently convicted of misdemeanor assault. On December 23, 1974, the Petitioner was arrested and charged with assault and battery in the Municipal Court of the City of Vero Beach, Florida. A nolle prosequi was entered by the City of Vero Beach in regard to this offense. On November 3, 1975, the Petitioner was charged by Information with disorderly intoxication in St. Lucie County, Florida. After a jury trial, the Petitioner was found not guilty. On July 18, 1980, the Petitioner was charged by Information with burglary, false imprisonment, aggravated battery and possession of a firearm while engaged in a felony offense in Broward County, Florida. A nolle prosequi was entered by the State Attorney's Office as to each charge. On June 17, 1981, the Petitioner was charged by Information with disorderly conduct by fighting in Indian River County, Florida. The Petitioner was subsequently convicted of the misdemeanor offense of disorderly conduct. On February 3, 1982, the Petitioner was arrested and charged with battery in Indian River County, Florida. The charges stemmed from a shoving match between the Petitioner and another customer at a Maryland Fried Chicken Store. Although the Petitioner entered a plea of no contest to the misdemeanor offense of battery, there was no evidence indicating whether or not the court entered an adjudication of guilt. On February 24, 1982, the Petitioner was charged by Information with obstruction of justice in Indian River County, Florida. A nolle prosequi was entered by the State Attorney's Office as to this charge. On May 20, 1982, the Petitioner was charged by Information with burglary of a structure while armed with intent to commit assault, shooting into an occupied dwelling, and aggravated assault with a deadly weapon in Indian River County, Florida. After a jury trial, the Petitioner was found not guilty of all charges. The Petitioner has never pled guilty or no contest to, and has never been convicted of a felony. The Petitioner has been convicted of 3 misdemeanor offenses, once of disorderly intoxication (1981) and twice of misdemeanor assault (1972 and 1968). The Petitioner indicated on his application for examination as a limited surety agent that he had been charged with a felony offense on 3 occasions. The Petitioner neglected to include the Connecticut felony charges which occurred in 1968 and 1972. The Petitioner's failure to include this information was an oversight and unintentional. The Petitioner resides in Vero Beach, Florida, and has lived there since 1973. The Petitioner is self-employed as a automobile dealer. Mark Gibbons, a fifteen-year veteran detective with the Indian River County Sheriff's Department has worked personally with the Petitioner for the past three years. Whenever the sheriff's office needs unmarked automobiles, Gibbons can rely on the Petitioner to loan vehicles from his car lot. The Petitioner has been familiar with some major undercover operations in Vero Beach and the operations have always remained secret. Gibbons' opinion is that the Petitioner is trustworthy and honest and has high moral character. Gibbons is familiar with the Petitioner's reputation in the community and among the detectives in the sheriff's office and the Petitioner's reputation is good. Richard P. Breen, the director of the City of Vero Beach Airport, has known the Petitioner for approximately four years on a casual, social basis. Prior to becoming the director of the city airport, Mr. Breen worked for 20 years with the Federal Communications Commission in Washington, D.C., as an attorney. Breen's opinion is that the Petitioner is trustworthy and honest and has very good integrity. Edward Bogan, a certified public accountant, does accounting work for the Petitioner's automobile business and has known the Petitioner for about 10 years. Bogan's opinion is that the Petitioner is trustworthy and honest and a man of high integrity. Bogan has never known the Petitioner to do anything dishonest or illegal with regard to his business financial records. Richard Appell, Jr., is an assistant vice-president of the Barnett Bank in Indian River County and has known the Petitioner for about 3 years. Appell is a consumer lending officer in charge of indirect lending. In indirect lending, the bank sets up arrangements with car dealerships to do financing of cars that the dealerships sell to individuals. Appell has contact with the Petitioner on a weekly basis involving indirect lending. The Petitioner frequently takes credit applications completed by customers to Appell and requests financing or indirect lending. Appell's opinion is that the Petitioner is honest and trustworthy and of high character. Appell and the Barnett Bank have never had any problems with the Petitioner misrepresenting cars, down payments or amounts financed. When the bank approves an indirect lending transaction, it must rely on the integrity of the dealer because the bank does not see the car or the customer. Ben Russo, the owner of a Dodge automobile dealership in Vero Beach, has known the Petitioner for about 15 years. Russo first met the Petitioner through buying and selling used cars in the Vero Beach area. Because of their common business, Russo has contact with the Petitioner about every other day. In Russo's opinion, the Petitioner is trustworthy and honest and has high moral character. Terrence O'Brien, City Attorney for the City of Vero Beach, has known the Petitioner on a social basis for about six years. In O'Brien's opinion, the Petitioner is honest and trustworthy. Robert J. Vatland, president of Vatland Oldsmobile, Inc., in Vero Beach, has known the Petitioner for approximately 10 years. In all of their business transactions, the Petitioner has been honest and has always exercised good judgment. Casper W. Maier, sales manager for Ennessy Buick- Cadillac, Inc., in Vero Beach, has done business with the Petitioner since 1979. In all of their business transactions, the Petitioner has been honest and sincere. In Maier's opinion, the Petitioner is honest and trustworthy. Dennis Widenhoffer, assistant manager at Firestone Service Center in Vero Beach, has known the Petitioner on a business and social basis for about 10 years. The Petitioner has been honest and fair in all of his transactions with Widenhoffer. John Purdy, a superintendent for Reynolds, Stalls and McClain Drywall Company has known the Petitioner for about 20 years and is a close personal friend of the Petitioner. Purdy sees the Petitioner on a social basis about once each week. In Purdy's opinion, the Petitioner is honest and trustworthy and has high moral character. American Bankers, Inc., has entered into an agreement to write the bonds for the Petitioner if Petitioner becomes a licensed bail bondsman. The Petitioner is honest and trustworthy and has high moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Gary J. Anthony, be allowed to take the examination for limited surety agent and if he passes the examination, be eligible for licensure as a limited surety agent. DONE AND ENTERED this 14th day of January, 1987, at Tallahassee, Florida. W. MATTHEW STEVENSON 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 14th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3620 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Note: The Petitioner's first Finding of Fact was numbered 6.). Addressed in Procedural Background section of Recommended Order. Adopted in substance in Findings of Fact 17, 18, 19 20 and 26. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 24. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Addressed in Procedural Background section. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in substance in Findings of Fact 17, 18, 19, 20 and 26. Rejected as subordinate. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 4. Adopted in Finding of Fact 27. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 3 through 13. Adopted in Finding of Fact 15. Rulings on Proposed Findings of Fact submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Rejected as misleading and/or not supported by the weight of the evidence. 9. Rejected as subordinate. 10. Adopted in substance in Finding of Fact 3. 11. Adopted in substance in Finding of Fact 4. 12. Adopted in substance in Finding of Fact 5. 13. Adopted in substance in Finding of Fact 6. 14. Adopted in substance in Finding of Fact 7. 15. Adopted in substance in Finding of Fact 8. 16. Adopted in substance in Finding of Fact 9. 17. Adopted in substance in Finding of Fact 11. 18. Adopted in Substance in Finding of Fact 12. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as subordinate and/or a recitation of testimony. COPIES FURNISHED: Clifford M. Miller, Esquire Miller & Miller 601 21st Street, Suite 408 Vero Beach, Florida 32960 Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate 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
Findings Of Fact Arvin C. Moore was a registered real estate broker from January 3, 1977, and active firm member of Real Estate 3 Incorporated, a registered corporate broker with an address registered with the Petitioner Commission as Route 2, Box 59B, Chipley, Florida 32428. Prior to January 3, 1977, Alvin C. Moore was a registered real estate salesman, registered as of September 2, 1975. Regarding the allegations that Respondent Moore was an officer of American Universal Investment Corporation at the time he acted as broker in the Tew transaction, the evidence presented showed that Moore resigned as president of American on April 29, 1977. Negotiations with the purchaser Tew began in the summer of 1977, and the contract between American and Tew was entered into on or about July 20, 1977. Moore was made vice president of American on November 3, 1977, some time after Tew had advised that he did not wish to complete the purchase. The evidence shows that Moore advised Tew that the property in which Tew was interested was owned by members of his family. Whether the corporation was identified as a closely-held corporation is not relevant, because Moore had advised Tew of his potential personal interest in the transaction. Moore advised Tew, after Tew expressed an interest in the property, that he would see for what price his family would be willing to sell the property. Moore advised Tew that the family would sell eleven (11) acres for $9,900. The Administrative Complaint alleges that Moore told Tew that American's cost was $900 per acre, and that this was a misrepresentation concerning the facts of the sale. The evidence shows that the seller, White, received $36,000 from the sale of the property to American; however, American paid $4,000 in brokerage fees to Moore. American's cost was $40,000. The parcel contained approximately fifty-eight (58) acres, but this included approximately eight (B) acres of public roads. In addition some of the land was so low that it was not usable. Depending upon what cost and acreage figures were used, the price per acre varied from $620 to approximately $900 per acre. Moore was representing American in this transaction and, as a real estate broker, was permitted to present the property in its best light. Representing the purchase price as $900 is not a misrepresentation but mere puffing. Moore's sole duty to Tew was to deal at arm's length with him. No evidence exists that Moore did not deal at arm's length with Tew. Further, concerning the representations regarding the cost paid by American, it is noted that these representations are irrelevant to Tew's right to reject the tendered offer from American. No evidence was presented that Tew was induced into the contract by the representation that American paid $900 per acre for the property. American tendered a written contract to White on September 23, 1976, which was rejected. However, this contract became the basis for further negotiation which resulted in an oral contract for sale between American and White. It is difficult, if not impossible, to determine when this contract was consummated; however, negotiations of certain details continued until after the Tew/American contract was executed. These negotiations between American and White included an arrangement for White to transfer the the eleven (11) acre parcel which Tew was purchasing directly to Tew and convey the remainder to American, avoiding a dual transfer and dual taxation. The Complaint alleges that Moore misrepresented the contract to Tew because American did not have title to or an assignable interest in the property. The facts show that a contract did exist between White and American, and that White concurred in the transfer to Tew. Although this oral contract was not legally enforceable, as agent for American Moore was aware that the oral contract was sufficient for American and that American was acting in reliance on its oral contract with White in making on offer to Tew. The contract between American and Tew was a valid enforceable written contract notwithstanding whether American had or obtained title to the White property. Tew could have sued for damages if American had not obtained the property, or for specific performance had American acquired the property and refused to transfer it to Tew. Tew's interests were not jeopardized under the contract. Although Moore's duty to American is not at issue, Moore's duty did not extend to protecting American from its own acts. Moore had no duty to advise Tew that the oral contract for purchase was not enforceable. The evidence shows that Tew accepted the contract for purchase and sale for eleven (11) acres at $9,900 and was satisfied with this transaction until his sister-in-law advised him that one of White's agents had told her American had purchased the property for approximately $500 per acre. At this point, Tew sought to withdraw from the contract. This explains the origin of Tew's complaint against Moore and Tew's interest in the outcome, because the American/Tew contract contained a default clause. Clearly, Tew defaulted on the contract by refusing to go through with it when American stood ready to convey the property to him. Moore deposited the $1,000 deposit check he received from Tew to the escrow account of the Washington County Abstract Company, a title company located and doing business in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no formal action be taken against the Respondents, Arvin C. Moore and Real Estate 3 Incorporated. DONE and ORDERED this 10th day off October, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Russell A. Cole, Jr., Esquire 206 East Iowa Avenue Bonifay, Florida 32425
The Issue Whether Respondent committed the violation alleged in the Amended Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed real estate sales associate, holding license number SL-691286. At no time during the almost ten years he has held this license has any disciplinary action been taken against him.2 From August 31, 2000, to March 31, 2002, and from April 16, 2002, to June 26, 2008, Respondent worked as a real estate sales associate for Tenzer Realty, Inc., and Associates (Tenzer Realty). Jack Tenzer is a Florida-licensed real estate broker. He has owned and operated Tenzer Realty since January 30, 1990. On or about December 13, 2007, Wiltamar Mendes executed a written agreement giving Tenzer Realty the "exclusive right to sell" residential property, located at 14081 Southwest 166th Street in Miami Florida, he and his wife owned (Subject Property). Under the terms of the agreement, "Tenzer Realty [was] to receive only [a] 3% commission" on the sale of the Subject Property, plus a "transaction coordination fee [of] $395.00 at closing." At no time has Mr. Tenzer ever had an interest in the Subject Property. Respondent was the listing agent for the Subject Property, and he represented the Mendeses throughout the sale process. In January 2008, Sulena Hernandez and her husband were looking to purchase a home in the Miami area. Roger Shapiro, a Florida-licensed real estate associate then working for Coldwell Banker, was helping them in their search and acting as their representative. Mr. Shapiro telephoned Respondent to make arrangements for the Subject Property to be shown to Ms. Hernandez. Ms. Hernandez, accompanied by Mr. Shapiro, was subsequently shown the Subject Property by the Mendeses.3 After the showing, the Hernandezes decided to make an offer on the Subject Property of $338,640.00 (money they hoped to obtain through a 100% financed Veteran's Administration loan4), with the "additional [monetary] term" that the Mendeses would "contribute 2% of the sale price toward [the Hernandezes'] closing cost[s]." The offer was written up for the Hernandezes by Mr. Shapiro on a Florida Association of Realtors (FAR)-developed Residential and Sale Purchase Contract form that Coldwell Banker used, on behalf of its clients, for such purposes (FAR Form). This FAR Form had eight pages, not including the "attached addenda." On the bottom of each page were spaces for the buyers and sellers to put their initials to "acknowledge receipt of a copy of th[e] page." Page 7 of the FAR Form contained the "Addenda" and "Additional Terms" provisions of the contract. The "Addenda" provision began as follows: 20. ADDENDA. The following additional terms are included in the attached addenda and incorporated into this Contract (check if applicable): This introductory language was followed by a lettered checklist of various possible "addenda" items, including "F. VA Financing," "H. As is w/Right to Inspect," "I. Inspections," "P. Back-up Contract," "Q. Broker - Pers. Int. in Prop.," "V. Prop. Disclosure Stmt.," and "Other." Next to (immediately to the left of) each listed item was a box (to be "check[ed] if applicable"). On the written offer he prepared for the Hernandezes (Contract Offer), Mr. Shapiro checked the "F. VA Financing," the "H. As is w/Right to Inspect," the "V. Prop. Disclosure Stmt.," and the "Other" boxes,5 and he attached an appropriately initialed addendum corresponding to each of these checked items.6 No other boxes were checked. Page 8 of the FAR Form was the signature page. Numbered lines 412 through 416 on page 8, as filled in by Mr. Shapiro (for the Hernandezes), read as follows: OFFER AND ACCEPTANCE (Check if applicable: ? Buyer received a written real property disclosure statement from Seller before making this Offer.) Buyer offers to purchase the Property on the above terms and conditions. Unless this Contract is signed by Seller and a copy delivered to Buyer no later than 5 ? a.m. ? p.m. on January 21, 2008, this offer will be revoked and Buyer's deposit refunded[7] subject to clearance of funds.[8] On numbered lines 417 through 420 on page 8, directly beneath this "Offer and Acceptance" provision, was the following "Counter Offer/Rejection" provision, which contained a box for the Mendeses to check if they wanted to counter the Contract Offer, as well as a box for the Mendeses to check if, alternatively, they wanted to reject the Contract Offer outright: COUNTER OFFER/REJECTION Seller counters Buyer's offer (to accept the counter offer, Buyer must sign or initial the counter offered terms and deliver a copy of the acceptance to Seller. Unless otherwise stated, the time for acceptance of any counteroffer shall be 2 days from the date the counter is delivered. Seller rejects Buyer's offer. On the next numbered line (421) on page 8, in the spaces provided, Ms. Hernandez signed her name and wrote in the date, "1/18/08." Acting under a power of attorney, she also signed (on numbered line 423) for her husband, who was on military deployment in Afghanistan at the time. The penultimate numbered line (433) on page 8 provided that the "[e]ffective date" of the contract would be "[t]he date on which the last party signed or initialed and delivered the final offer or counteroffer." Ms. Hernandez put her and her husband's initials in the spaces provided on the bottom of page 8, as well as in the spaces provided on the bottom of the preceding seven pages, to "acknowledge receipt of a copy of th[ese] page[s]." Mr. Shapiro sent the Hernandezes' signed, dated and initialed Contract Offer to Respondent (by facsimile transmission) for presentation to the Mendeses for their consideration. Respondent guided the Mendeses through their review of the Contract Offer and provided them with advice. On January 23, 2008, after they had finished going over the Contract Offer with Respondent, the Mendeses (on numbered lines 427 and 428) signed and dated the document. They also initialed the bottom of each of the offer's first eight pages, as well as the bottom of each addendum that had been attached thereto, in the appropriate spaces. This was all done in Respondent's physical presence. On behalf of the Mendeses, Respondent provided (by facsimile transmission) a copy of the signed, dated, and initialed document (Genuine Hernandez Contract9) to Mr. Shapiro. By their actions (which Respondent helped orchestrate), the Mendeses signified their intent to accept the Contract Offer, without revision. They checked neither of the boxes in the "Counter Offer/Rejection" provision (on numbered lines 417 through 420 on page 8), nor did they make any written entries elsewhere on the document, or attach any appropriately initialed additional addenda, reflecting a desire to accept an offer from the Hernandezes only on terms different than those set forth in the Contract Offer. Most significantly, for purposes of the instant case, the Mendeses made no changes to the "Addenda" provision. They checked no additional boxes (including the "P. Back-up Contract" box), nor attached any appropriately initialed addendum corresponding to an unchecked item. After receiving the Genuine Hernandez Contract from Respondent, Mr. Shapiro showed it to Ms. Hernandez. Ms. Hernandez, with the help of Mr. Shapiro, proceeded to take those steps necessary for her and her husband to close on the Subject Property on February 29, 2008, the agreed-upon closing date.10 These steps included having the Subject Property inspected and securing a mortgage loan commitment.11 Respondent and Mr. Shapiro had occasion to speak with one another over the telephone regarding these post- contract/pre-closing matters. (There was no direct communication at any time between Respondent and the Hernandezes.) At no time either before or after the effective date of the Genuine Hernandez Contract did Respondent advise Mr. Shapiro that the Mendeses intended to treat their contract with the Hernandezes as a "back-up contract," that is, a contract subordinate to another contract for the sale and purchase of the Subject Property. This was not information that could be gleaned from a review of the Genuine Hernandez Contract. Indeed, the Genuine Hernandez Contract affirmatively indicated that it was not a "back-up contract," inasmuch as the "P. Back-up Contract" box in the "Addenda" provision on page 7 was not checked, nor was there any corresponding "Back-up Contract" addendum attached to the document. Unbeknownst to Mr. Shapiro and the Hernandezes, by the time the Genuine Hernandez Contract became effective (which, according to numbered line 433, was January 23, 2008, "[t]he date on which the last party [the Mendeses] signed or initialed and delivered the final offer"), the Mendeses had already entered into a contract (using the FAR Form) to sell the Subject Property to another couple, Carlos and Aida Garcia, for $330,000.00 (95% of which would be financed), with no seller contribution toward closing costs (Garcia Contract). In the "Addenda" provision (on page 7) of the Garcia Contract (as in that provision of the Genuine Hernandez Contract), neither the "I. Inspections" box, the "P. Back-up Contract" box, nor the "Q. Broker - Pers. Int. in Prop." box was checked. Respondent was aware at the time that the Mendeses executed the Contract Offer and entered into the Genuine Hernandez Contract that it was the Mendeses' intention to proceed with the Garcia Contract as the primary contract12 and to treat the Genuine Hernandez Contract as merely a "back-up"13 (providing a ready alternative for the Mendeses, as insurance, in the event their deal with the Garcias fell through).14 This was information that any reasonably prudent buyer in the Hernandezes' situation would have wanted and expected to have, as Respondent surely must have known. As a Florida- licensed real estate sales associate representing the Mendeses, Respondent had a duty, in the interest of honest and fair dealing, to disclose this information to the Hernandezes (notwithstanding that he was not their agent15). Nonetheless, Respondent knowingly and dishonestly participated in a scheme to conceal from the Hernandezes the subordinate status of their contract to purchase the Subject Property.16 As it turned out, the Mendeses did not need to have a "back-up" buyer, as the Garcias closed on the Subject Property on February 11, 2008, as scheduled. Respondent "attend[ed] the closing with the Garcias." Respondent told neither Mr. Shapiro, nor the Hernandezes, that the Garcias had closed on the Subject Property. Mr. Shapiro found out about the Garcias and their having closed on the Subject Property, not from Respondent, but from a representative of Sunbelt Title (the title company). He obtained this information just a few days before the Hernandezes' scheduled February 29, 2008, closing. Mr. Shapiro, in turn, told Ms. Hernandez about the Garcias' purchase of the Subject Property. Ms. Hernandez was "shocked" to learn that the Mendeses no longer had title to the Subject Property and that therefore she and her husband would not be able to purchase the property from them. She had made all the necessary preparations to move from the rental property she was living in with her husband to the Subject Property. She even had family members who were going to be "flying into town" to help her with the move. Had the Hernandezes known that their contract was only a "back-up" to the Garcias', they would not have done the things they did in anticipation of their scheduled February 29, 2008, closing on the Subject Property. Ms. Hernandez hired an attorney, who contacted Mr. Tenzer to inquire, on the Hernandezes' behalf, about the situation. Mr. Tenzer had no "idea what [the attorney] was talking about." Respondent was unavailable at the time inasmuch as he was out of the country on vacation. Mr. Tenzer therefore went directly to the filing cabinets where all of Tenzer Realty's files (both active and closed) were supposed to be kept and proceeded to look for the file on the Subject Property. Pursuant to established Tenzer Realty office policy (with which Respondent should have been familiar), all contracts dealing with the Subject Property should have been in one file in these filing cabinets. Mr. Tenzer found only the Garcia Contract in the file on the Subject Property. The Genuine Hernandez Contract (to which the Hernandezes' attorney had referred in his conversation with Mr. Tenzer) was not in the file. Unable to locate a contract for the sale of the Subject Property to the Hernandezes, Mr. Tenzer left a note on Respondent's desk asking Respondent to see him about the matter as soon as he returned to the office from vacation. In his note, Mr. Tenzer emphasized that "it was urgent" that Respondent discuss the matter with him "immediately" upon Respondent's return. When Respondent returned to the office, he produced for Mr. Tenzer a document (Purported Hernandez Contract17) identical in all respects to the Genuine Hernandez Contract, except that three additional boxes in the "Addenda" provision on page 7 were checked: the "I. Inspections" box; the "P. Back- up Contract" box; and the "Q. Broker - Pers. Int. in Prop." box.18 (No additional addendum corresponding to any of these items was attached to the document, however; just the boxes were checked.19) There were no signatures or initials next to these three checked boxes.20 Respondent told Mr. Tenzer that this was a "back-up contract" and that the Hernandezes had been so informed. What Respondent had done was alter the "Addenda" provision of the Genuine Hernandez Contract in a weak and transparent attempt to make it appear as if the "back-up" nature of the contract was apparent from its face. Mr. Tenzer asked Respondent where the Purported Hernandez Contract had been "all this time." Respondent responded that he had kept it in his desk drawer. This response drew a rebuke from Mr. Tenzer, who chastised Respondent for not keeping the Purported Hernandez Contract in the file together with the Garcia Contract. Mr. Tenzer then inquired, "Why do we have another contract when one's already closed?" Respondent answered, unresponsively (as well as untruthfully), that he had notified Mr. Shapiro that the Garcias had closed on the Subject Property and that therefore the Hernandezes would not be purchasing the property. Upon reviewing the Purported Hernandez Contract, Mr. Tenzer noticed that the "Q. Broker - Pers. Int. in Prop." box was checked. When he questioned Respondent about this, Respondent told Mr. Tenzer that "that was done in error."21 The Hernandezes ultimately purchased another home in the Miami area. The purchase price of the home was more than the amount that they had agreed to pay to buy the Subject Property from the Mendeses. A complaint concerning Respondent's dealings in connection with the Subject Property was filed with Petitioner. The complaint was investigated by Felix Mizioznikov, an investigator with Petitioner. As part of his investigation, Mr. Mizioznikov interviewed Respondent, both over the telephone and "in person." During the "in person" interview, Respondent gave Mr. Mizioznikov his file on the Subject Property. The file contained the Garcia Contract, the Genuine Hernandez Contract,22 and the Purported Hernandez Contract. Mr. Mizioznikov's investigation led to Petitioner's filing the instant charge against Respondent alleging a violation of Section 475.25(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order finding Respondent guilty of "concealment" in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Amended Administrative Complaint and disciplining him for having committed this violation by suspending his license for four years, fining him $1,000.00, and requiring that he reimburse Petitioner for its reasonable investigative costs in this case. DONE AND ENTERED this 3rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2010.
The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2017.
Findings Of Fact By her plea of guilty Respondent has admitted all allegations contained in the Administrative Complaint. Her testimony was unrebutted that a Mrs. Johnson, owner of a condominium, at 1062 Highland Circle, Fort Myers, Florida, desired a tenant and approached Respondent Smith to see if she could locate a tenant for which Mrs. Johnson, a real estate salesman in Minnesota, agreed to pay commission. At the time this transaction occurred Respondent Smith was working as salesman for Caloosa Bayview Corporation, a non-broker. Respondent Smith had to locate a key to the apartment and have the apartment cleaned and painted before it could be rented. She apprised Johnson of this before proceeding. Thereafter a tenant was obtained who made the initial payment in cash which Respondent Smith deposited in her account and submitted her check to Johnson for the deposit less her commission. The next month the rental check was made payable to Johnson, sent to Smith, and Smith endorsed Johnson's name on the check followed by her endorsement. She deposited the check in her account and transmitted to Johnson a check for this amount. Thereafter Smith advised the tenant to submit payments directly to Johnson. On a subsequent visit by Johnson to Ft. Myers Johnson entered the apartment with a key she had retained and claimed the tenant had done damage to the apartment. When Respondent Smith defended the tenant by advising Johnson the damage was done prior to the present tenant's occupancy, Johnson became upset and later filed a complaint with FREC and this investigation and charges resulted.
The Issue The issue is whether Respondent is guilty of unlawfully employing a felon in the conduct of the bail bond business, in violation of Sections 648.44(8)(b) and 648.45(3), Florida Statutes, and Rule 4-221.001, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a limited surety agent, and he has been the chief executive officer of Big John’s Bail Bonds, Inc., which is located in Tampa (Big John’s). Donald Raymond Davis has known Respondent for ten years. From time to time, Mr. Davis has done bail bond pick- ups in which he, serving as a bounty hunter, locates and apprehends a person whose failure to appear in court has resulted in a bond forfeiture. Mr. Davis is a felon. His last conviction was in 1989 for a second-degree felony of threatening to discharge a destructive device, in violation of Section 790.162, Florida Statutes. The court sentenced him to 18 months in prison followed by one year of probation. Mr. Davis has been convicted of one or more other felonies. At all material times, Respondent was aware that Mr. Davis was a felon and was not licensed by Petitioner to engage in the bail bond business. In December 1999, Respondent asked Mr. Davis to locate and cause the apprehension of Hector Lopez, who had failed to appear in court concerning a drug charge. Due to his failure to appear, the court had ordered the forfeiture of a bond that Respondent had written. Upon the apprehension of Mr. Lopez, Respondent would pay Mr. Davis a ten percent commission (presumably calculated with reference to the bail amount or bail premium), less certain debts that Mr. Davis owed Respondent. Respondent also agreed to pay certain expenses of Mr. Davis in pursuing Mr. Lopez. After being retained, Mr. Davis examined the file, but found nothing that would help him find Mr. Lopez. Mr. Davis checked prior bookings and found a couple of co- defendants. By this means, Mr. Davis tracked down Mr. Lopez’s girlfriend, who resided in the Tampa Bay area. Visiting the girlfriend and claiming to be a bail bondsman, Mr. Davis learned that Mr. Lopez was enroute to the New Jersey/New York area. Mr. Davis departed for Fayetteville, North Carolina, where he contacted the girlfriend’s sister and mother. There, he learned that Mr. Lopez had been in Fayetteville, but had already left town on his way to New Jersey. Mr. Davis arrived in New Jersey near Christmas. He investigated the case until Christmas Eve, when he drove back to Florida. However, on January 2, 2000, Mr. Davis drove back to Patterson, New Jersey, to continue his search for Mr. Lopez. Arriving in northern New Jersey, Mr. Davis rented a motel room, from which he resumed his search for Mr. Lopez. By this time, Mr. Davis was out of money, so Respondent used his credit card to pay for the motel room and paid for other expenses, including an informant. Never more than one day behind Mr. Lopez, Mr. Davis beat the street in search of the bond principal. About to apprehend him in New Jersey, Mr. Davis retained the assistance of a New Jersey bondsman who provided four men, with whom Mr. Davis rushed Mr. Lopez’s New Jersey apartment--only to find it recently vacated. Searching the apartment, Mr. Davis found a telephone number for Mr. Lopez’s pager, and, by this means, located Mr. Lopez in the Bronx, New York. At 1:30 a.m. on January 19, 2000, Mr. Davis and now eight New Jersey men apprehended Mr. Lopez and took him to the Elmhurst Park Police Department in New Jersey. Mr. Davis had originally intended to bring Mr. Lopez back to Florida, but did not want to do so for fear that he would get into trouble for engaging in the bail bond business in Florida without a license. While communicating with the New Jersey police, Mr. Davis produced a false identification that he had purchased in North Carolina. After the New Jersey police confirmed the pending charges against Mr. Lopez and agreed to keep him in custody, Mr. Davis negotiated with the New Jersey bail bondsman a price of $2000 for the assistance that he had provided in the apprehension of Mr. Lopez. Respondent transferred this money to New Jersey for payment to the New Jersey bail bondsman. Mr. Lopez was eventually returned to Florida. Upon his return to Florida, Mr. Davis received from Respondent the sum of about $700 for his services in finding and apprehending Mr. Lopez. Respondent paid this sum even though, after the payment, Mr. Davis still owed Respondent some money. At all material times, Respondent employed Mr. Davis as an independent contractor, not an employee. All major factors support this finding. Mr. Davis controlled the means by which he performed the search and apprehension of Mr. Lopez. Payment of Mr. Davis was contingent upon the apprehension of Mr. Lopez. Respondent did not take withholding taxes or social security contributions out of any payments to Mr. Davis. At no time was Mr. Davis ever an employee, officer, director, or shareholder--directly or indirectly--of Big John’s. Mr. Davis was arrested in 2000 for the unlawful practice of the bail bond business. He pleaded guilty to this charge. The court sentenced him to 22 months in prison, but suspended the sentence, subject to successful completion of five years of probation.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the First Amended Administrative Complaint against Respondent. DONE AND ENTERED this 23rd day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2001. COPIES FURNISHED: Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
The Issue The issue for consideration was whether Respondent's license as a real estate salesman in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact Respondent Diamond was licensed as a real estate salesman in Florida on November 4, 1957. On April 1, 1978, he renewed his salesman's license in a "non-active" status. Renewal has not been sought again by Respondent nor has any renewal of the license, in any fashion, been accomplished by Petitioner. Respondent has not been notified of the status of his license since March 31, 1980. On or about November 16, 1983, an indictment was filed in the United States District Court for the Southern District of Florida against Respondent and others alleging 48 counts of mail and wire fraud involving the sale of advisory contracts relating to oil and gas leasing operations under the Federal SIMOL program. On November 23, 1983, Respondent was arraigned before United States Magistrate Peter R. Palermo and entered a plea of Not Guilty to the charges laid against him. The indictment in question related to the Respondent in 18 of the 48 Counts. On February 8, 1985, as a result of a trial by jury, Respondent was found guilty of 7 of the 18 Counts laid against him specifically and not guilty of the remaining 11 Counts which related to him. Review of the pertinent Counts of which Respondent was found guilty reflects that these allegations, notwithstanding the terms of the Administrative Complaint filed herein, relate specifically and exclusively to mail fraud only. There is no evidence that Respondent was found guilty of wire fraud. From the date of the conviction up until January 31, 1986, Respondent failed to notify the Florida Real Estate Commission in any way of his conviction as stated above. Respondent admits all the allegations contained in the Administrative Complaint which relate to his guilt of and conviction for mail fraud in his letter requesting hearing in response to the Administrative Complaint. On April 9, 1985, Respondent was sentenced to 2 years imprisonment on each of the 7 counts of which he was found guilty each term to run concurrently, and was ordered to serve his sentence in the Eglin Federal Prison Camp at Eglin AFB, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that Respondent J. LEONARD DIAMOND's license as a real estate salesman in the State of Florida be revoked. RECOMMENDED this 7th day of March, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th of March, 1986. COPIES FURNISHED: Sue Hartman, Esquire Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Harold Huff, Exec. Director Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando; Florida 32801 J. Leonard Diamond #12936-004 P. O. Box 800 Eglin AFB, Florida 32542
