Findings Of Fact Petitioner, Jerry R. Erickson, who is now thirty years old, made application on May 29, 1986 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld". Petitioner answered in the affirmative and gave the following response: February 10, 1984 incurred several felonies, all drug and alcohol related, there were several incidents in my past that were drug and alcohol related. (See attached letters). A subsequent background check by respondent revealed the following arrests and/or convictions: 1980 - Arrest for driving while under the influence. 1982 - Arrest for trespassing after warning and assault and battery. 1982 - Arrest and conviction for driving while under the influence. 1983 - Disorderly intoxication ar- rest. 1984 - Arrest and conviction for armed burglary, kidnap, false imprisonment, aggravated assault, and burglary to a business. Although arrested on the above five occasions, he was convicted only twice. For the most recent conviction in 1984, Erickson was allowed to enter into a negotiated plea whereby he received 455 days incarceration, two years community control, and ten years probation, each to run consecutively. 1/ Because of his record, petitioner's application for licensure was denied by respondent on September 15, 1986. Erickson's problems are directly related to alcohol and drug addiction. Its origin began at age thirteen when he was given valium by his parents for hyperactivity. Following this exposure to drugs, Erickson freely admits that he abused alcohol and drugs until early February, 1984. Having taken a large dose of valiums over a 48 hour period, and still not being able to sleep, Erickson entered a drug store on February 9, 1984 and demanded, at gunpoint, an ampule of morphine to help him calm down. For that episode, he was arrested and charged with a number of serious crimes. Apparently recognizing that Erickson's underlying problem of drug and alcohol addiction was the reason for his actions, the State allowed Erickson to enter a negotiated plea if he could master his addiction problem. He has successfully done so and is now under community control until November, 1986. After that, he must serve 10 years probation. In addition, he must receive an annual psychological review during the term of his probation. In addition to his own testimony, a psychiatrist, executive vice- president of a bank, and the chief of the public defender's criminal trial division testified on Erickson's behalf. All were aware of Erickson's background and prior legal problems. Erickson was described as being responsible, mature, reliable and honest. The banker stated he would have no hesitation in using Erickson in a real estate transaction and that Erickson has met all obligations on several loans with the bank. The public defender described Erickson's conduct as "exceptional", and that he is one out of perhaps five hundred clients who has been assigned to community control. All felt Erickson had rehabilitated himself. Erickson desires to become a real estate salesman, and eventually to obtain a broker's license. He is married, has a child, and is employed at a West Palm Beach newspaper. He was most candid and forthright in his testimony and appeared to the undersigned to have rehabilitated himself by reason of good conduct and lapse of time since his 1984 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That petitioner's application for licensure as by examination as a real estate salesman be GRANTED. DONE AND ORDERED this 31st of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 31st day of October, 1986.
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Petitioner is an agency of the State of Florida charged with the responsibility to license and regulate the licensure standards of real estate brokers and salespersons in the State of Florida and with prosecuting Administrative Complaints against the licensure status of those persons for alleged violations of the various provisions of Chapter 475, Florida Statutes (1991), and the rules promulgated thereunder. The Respondent at all times material hereto was a real estate broker- salesperson operating and licensed in the State of Florida having been issued license number 0162601. The last license issued the Respondent was effective on September 30, 1991 and accorded him the status of a "non-active broker" with an address at 5622 Thomas Drive, Panama City, Florida 32408. In 1987, Barbara Jean Parmer, also known as Barbara Jean Withers (hereafter Barbara Parmer), responded to a newspaper ad and rented a residential property from the Respondent. She gave the Respondent a damage deposit of approximately $395.00. Subsequent to renting the property, she expressed an interest in buying it from the Respondent and was advised by the Respondent that she could seek financing from his lender or she could make payments directly to the Respondent; and when he was fully paid, he would transfer the deed to her and pay off the existing first mortgage. This was the first occasion she had ever attempted to purchase a home. The Respondent told Barbara Parmer that the existing mortgage balance was $29,000.00 and that to sell her the property, he wanted a $5,000.00 down payment and $12,000.00 in "rent" for a total sales price of $46,000.00. In effect, the so-called payments would be payments toward purchase of his equity in the home. On October 9, 1987, the Respondent and Barbara Parmer executed a "Receipt for Deposit-Offer to Purchase-Contract for Sale" (contract) reflecting a $5,000.00 earnest money deposit for property located at 335 Gardenia Street, Panama City, Florida. On that day, Barbara Parmer gave the Respondent check number 108 for $5,000.00 as the down payment on the house. He cashed that check on October 12, 1987. The Respondent drafted the contract at issue and did not advise Barbara Parmer to have an attorney review the document. Barbara Parmer testified that she trusted the Respondent, in effect, because he was a real estate licensee. When she signed the contract and gave the earnest money deposit or down payment, she understood that she was contracting to purchase the property from the Respondent. Sometime after signing the contract and the tendering of the earnest money deposit, Barbara Parmer (then Withers) married David Parmer. Subsequent to the signing of the contract and the payment of the earnest money deposit, the Respondent advised the Parmers that he was getting divorced. He told them he did not want his wife to gain possession of the property and so suggested that Barbara Parmer go to Sun Bank to have the property transferred into her name, in other words, by re-financing the house with Sun Bank and thus paying off the existing first mortgage and any equity still owed the Respondent. After the Respondent told the Parmers about his impending divorce, Mr. Parmer asked the Respondent to return the $5,000.00 earnest money deposit. The Respondent advised that if he sold the house, he would return the deposit, which was being held in an account drawing interest, according to the Respondent. He also represented that he would not refund any of the money expended by them for improvements because he had not requested that any of the improvements be made. He had apparently taken the position in entering the arrangement with Barbara Parmer that it was a sale of the property under a "contract for deed" arrangement whereby title would pass only after his purchase price had been paid. In any event, Barbara Parmer went to Sun Bank and was advised by Loan Officer, Cindy McNeal, that the documents entered into between Barbara Parmer and the Respondent regarding purchase of the property were legally flawed in the opinion of Ms. McNeal and that Barbara Parmer should seek an attorney's advice. Sun Bank declined to refinance the property because Mr. Parmer was then unemployed due to an accident and was only receiving income from worker's compensation and no salary. After the conversation with the representative of Sun Bank, Barbara Parmer called Great Western, the holder of the first mortgage executed by the Respondent, to inquire as to the balance due on that first mortgage. Barbara Parmer received a document from Great Western dated November 13, 1990 indicating that the balance on the mortgage was approximately $33,000.00. In 1987, when she contracted with the Respondent to purchase the property, the Respondent had told her that the balance was approximately $29,000.00. The first mortgage was apparently an adjustable rate mortgage and either the represented $29,000.00 figure was inaccurate or the mortgage was in negative amortization or both. The Respondent never advised the Parmers of any negative amortization situation. Between October 9, 1987 and March or April of 1991, Barbara Parmer paid the Respondent between $400.00 and $500.00 per month toward purchase of the property. The checks for the monthly payments were payable to Respondent Melvin J. Powell and were negotiated by Powell. At the direction of the Respondent, the payments were made at the office of Sun Spot Realty. During this time, the Respondent's licensure was located and registered with Sun Spot Realty. The variation in the monthly payment was because the Respondent advised Barbara Parmer that the monthly payment on the first mortgage held by Great Western was $200.56 and that anything she paid over that amount would go toward the $12,000.00 equity she owed the Respondent pursuant to their agreement. Some months she paid different amounts over and above the amount represented by the monthly payment on the Great Western first mortgage. The Respondent gave Barbara Parmer a ledger sheet showing the dates she made payments on the property, the amount that went to Great Western to retire the first mortgage, and the amount that went to the Respondent toward the $12,000.00 second mortgage representing his equity, as well as the amounts contributed to interest, taxes, and insurance. During the approximately three and one-half years that she lived in the house, she made improvements to the property, including but not limited to: landscaping the front and back yards, pouring a foundation, erecting a metal shed, repairing the roof, painting the interior and exterior, replacing the walls and floor in the bathroom, wallpapering and finishing the kitchen, and installing a new dishwasher and a new hot water heater. Respondent never expended any funds for upkeep of the property during the time the Parmers occupied the house. The Parmers spent at least $5,000.00 on improvements to the property they were purchasing from the Respondent. The Respondent told them then to make whatever improvements they wished because the house was theirs. The Parmers would not have spent the money on the improvements had they not believed that they were purchasing the property. After attempting to obtain financing from Sun Bank, Barbara Parmer contacted Attorney Glenn Hess, who sent a letter to Respondent's counsel regarding Barbara Parmer's concerns. Prior to seeing Attorney Hess, the Respondent had admonished Barbara Parmer not to see an attorney, that the matter could be settled amicably between them, and he threatened to sue her if she did contact an attorney about her concerns. The Respondent told Mr. Parmer that Barbara Parmer had a legal contract to purchase the property and warned against them seeking legal advice by threatening to sue them for breach of contract if they did so. Attorney Hess advised Barbara Parmer that it would be uneconomical to file a lawsuit against the Respondent. Despite demand for return of the earnest money deposit, the Respondent never returned the deposit nor did he ever compensate the Parmers for the funds they expended on improvements to the property. They vacated the property on advice of their attorney. The Respondent never gave notice to the Parmers that he was claiming any of their funds for damage to the property or for breach of contract. When they vacated the property, there was no damage to the property other than a five-inch hole in one bedroom wall. Within two months of the Parmers moving out, the Respondent rented the property to another tenant for almost $100.00 per month more than the Parmers had been paying. On the advice of Attorney Hess, the Parmers filed a complaint against the Respondent with the Bay County Board of Realtors, Inc. Thomas S. Newbauer has been a licensed real estate broker since 1973 and serves as chairman of the Professional Standards Committee (hereafter Committee) of the Bay County Board of Realtors. The Committee hears cases and renders decisions on allegations of violations of the Board of Realtors' code of ethics. In September, 1991, Mr. Newbauer served as a member of the panel appointed by the Committee in considering the complaint filed by the Parmers against Respondent. A hearing was held by the appointed panel to consider the complaint filed by the Parmers against the Respondent. The Respondent was notified of the hearing and appeared and testified. On September 30, 1991, the ethics hearing panel of the Committee filed a decision regarding the Parmer complaint against the Respondent and determined that the Respondent had violated three articles of the realtor code of ethics and further that there might be grounds for investigation by the Florida Department of Professional Regulation. On October 1, 1991, Mr. Newbauer sent a letter to the Board of Directors of the Board of Realtors informing them of the determination of the panel of the Committee. The determination by the panel that the Respondent had violated the code of ethics was upheld by the Board. Paul R. Bratton, III has been a real estate investigator with the Department of Professional Regulation for some nine years. The Respondent told Mr. Bratton that he had kept the $5,000.00 earnest money deposit because the Parmers had breached the contract.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that the Respondent be found guilty of having violated Section 475.25(1)(b), Florida Statutes, and that his Florida real estate license be suspended for a period of one year, that he be accorded a formal written reprimand, that he complete 60 hours of post-licensure continuing education for brokers within three years from the date of the Final Order entered in this cause, and that he pay a fine of $1,000.00 to the agency within 30 days of the filing of the Final Order in this cause. DONE AND ENTERED this 13th day of May, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3751 Petitioner's Proposed Findings of Fact 1-46. Accepted. Respondent's Proposed Findings of Fact The Respondent filed no separately-stated findings of fact but rather a one-page "Proposed Recommended Order" merely stating the conclusions that the Respondent was not guilty of the charges in Counts I and II of the Administrative Complaint and the statutes he was charged with violating. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Janine B. Myrick, Esq. Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Melvin J. Powell 2610 Dade Panama City, FL 32408 Melvin J. Powell 5622 Thomas Drive Panama City, FL 32408
Findings Of Fact The parties stipulated to facts set forth in paragraphs 1-8, below. Stipulated Facts The Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts as the licensing and regulatory agency for real estate broker licensees. The Respondent is Harriet M. Arndt, holder, at all times pertinent to these proceedings, of license number 0002216 issued by Petitioner. Her address of record is One South Ocean Boulevard, Suite 322, Boca Raton, Florida 33431. On January 28, 1987, Respondent received in trust an earnest money deposit in the amount of $39,000 from a buyer for a piece of property listed with another realtor, Merrill Lynch Realty, Inc. At closing of the sales transaction on February 25, 1987, Respondent delivered a check drawn on her trust account in the amount of $15,600 and made payable to Merrill Lynch Realty, Inc. This payment represented payment of one half of the $31,200 real estate brokerage commission. The check was subsequently returned to Merrill Lynch Realty, Inc. due to "non-sufficient funds." On March 27, 1987, Respondent delivered a cashier's check in the amount of $15,600 to Merrill Lynch Realty, Inc., to replace the February 25, 1987, check. The Respondent's real estate brokerage trust account was overdrawn from January 8, 1987 through March 4, 1987, by amounts ranging from $12,991.39 to $14,306.53 on various days during that period. The Respondent failed to maintain the $39,500 earnest money deposit in her trust account from February 2, 1987 until February 25, 1987, because the trust account's daily balance was less than that amount during that period. The Respondent subsequently failed to maintain the $15,660 due to Merrill Lynch Realty Inc., in the trust account from February 25, 1987, through March 25, 1987, because the trust account's daily balance was less than $15,600. From March 19, 1987, through October 29, 1987, Petitioner's investigator requested Respondent to produce for inspection and copying those books and papers relating to Respondent's trust account which are maintained in connection with Respondent's real estate activities. The Respondent failed to make the requested trust account books and records available at any time. Other Facts The Respondent offered mitigating testimony establishing that she was initially licensed in 1978 and has never been censured by Petitioner for any professional violations. She is 57 years of age and her real estate license is her sole source of support. Further, Respondent has borrowed money from her children to make up the deficit in her trust account. The testimony of Respondent also established that she was introduced to a gentleman named Robert H. Lajoie by another realtor in December of 1986. Subsequently, on or about December 8, 1986, Respondent entered into a nefarious arrangement with Lajoie. Under terms of the arrangement, Lajoie gave Respondent a check for $25,500 as a deposit to purchase a property listed with Respondent. In turn, Respondent gave Lajoie back a cash deposit of $10,000 from her trust fund in connection with a contract between the two of them whereby Respondent was to purchase a property of Lajoie's. The closing of the sale of Lajoie's property to Respondent would not take place until May, 1987. Lajoie returned to his native Canada shortly after receiving the $10,000 cash payment from Respondent and died. Shortly thereafter, payment on Lajoie's $25,500 check to Respondent was stopped. The Respondent is not sure whether this action was taken by Lajoie prior to his death or by his estate subsequent to that event. It is Respondent's contention that the loss of the $10,000 cash deposit to Lajoie resulted in a negative net balance in her trust account and eventually all of her financial difficulties in this case. The Respondent was sent an overdraft notice by her bank on January 8, 1987, stating that her trust account was overdrawn by $13,500 and that a check for $25,500 had been returned. Subsequent overdraft notices dated January 13, 1987 and January 21, 1987, were received by Respondent noting the rejection of two of Respondent's checks; one in the amount of $294.90 and the other in the amount of $34.35. The notice of January 13, 1987, indicated a hold on the account in the amount of $2,862.94 against the account's balance of $3,006.19. The January 21, 1987, notice continued this hold on the account's balance of $2,891.45. The Respondent related a series of personal matters at hearing that had prevented her from keeping appointments with Petitioner's investigators to inspect her records. She agreed to make access to those records immediately available.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint, imposing an administrative fine of $1,000 and suspending her license for a period of six months. DONE AND RECOMMENDED this 22nd day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1472 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 1-2. Included in finding 1. 3-8. Included in findings 3-8 respectively. Respondent's Proposed Findings 1. Included in finding 2. 2-5. Included finding 10. Included in finding 3. Included in finding 4, 5, and 10. Included in finding 8 and 12. 9-10. Rejected. 11. Included in finding 9. COPIES FURNISHED: Steve W. Johnson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Robert E. Gordon, Esquire 2601 Tenth Avenue North Suite 314 Lake Worth, Florida 33461-3197 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Department of Professional Regulation Division of Real Estate 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent, Charles L. White, is registered with the Real Estate Commission as a Real Estate Salesman. Copies of the Administrative Complaint filed by the Commission against the Respondent were forwarded to the Respondent at the address he most recently provided the Commission. Copies of the Complaint were returned to the Commission, and copies of the Notice of Hearing forwarded to the Respondent have likewise been returned. Efforts to locate the Respondent have been unsuccessful. A forty-count indictment was issued by the Grand Jury of the United States District Court in the Middle District of Florida, Tampa Division, against the Respondent, Charles L. White, and five other persons. On February 5, 1977, a jury found the Respondent guilty of all counts of the indictment in which he was charged. On June 3, 1977, he was adjudicated guilty, and sentenced to serve eighteen months in the Federal Penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of two years. The crimes of which the Respondent was convicted involve dishonest dealing in connection with real estate transactions, and include fraud, fraudulent use of the mail, and conspiracy to commit violations of Federal law.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint, and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of June 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Charles L. White D-30 Sierra Apartments Stuart, Florida 33494 Mr. Charles L. White c/o County Realty & Investments Stuart, Florida 33494
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 JAMES E. BRADWELL , Hearing officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October 1985.
The Issue Whether Respondent's registration as a real estate salesman should be revoked for alleged violation of Section 475.25(2), Florida Statutes.
Findings Of Fact Respondent executed an application for registration as a real estate salesman on March 26, 1973, and filed the application with the Florida Real Estate Commission on April 2, 1973 (Petitioner's Exhibit 1). Question 9 on the application reads as follows: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted. Yes If yes, state details in full 1969 Convicted D.U.I Arrested for hindering police officer found not Guilty, Arrested for gambling Found not Guilty." Official records of the Dade County Public Safety Department reflect the following: On February 25, 1954, Respondent was arrested and charged with bookmaking. The charge was nolle-prossed on June 25, 1954 (Petitioner's Exhibit 7). On December 1, 1959, Respondent was arrested and charged with operating a gambling house, bookmaking, conspiring to violate gambling laws, and possession of gambling devices. The charges of operating a gambling house and bookmaking were dismissed on September 13, 1960 and no action was taken as to the other two charged (Petitioner's Exhibit 6). On May 17, 1963, Respondent was arrested and charge, with operating and conducting a gambling house, bookmaking, possession of gambling equipment and paraphernalia, and a traffic offense. The records reflect that the first three charges were not prosecuted and there is no showing of the disposition of the traffic offense (Petitioner's Exhibit 5). On April 26, 1969, Respondent was arrested and charged with vagrancy, possession of gambling paraphernalia, and possession of telephone slugs. The charges were dismissed (Petitioner's Exhibit 4). On June 16, 1972, Respondent was arrested and charged with hindering a police officer, and resisting arrest. On October 5, 1972, he was found not guilty of resisting arrest and there is no record of any further action taken with regard to the charge of hindering a police officer (Petitioner's Exhibit 2,3). Respondent testified that he had filled out the application form to the best of his ability and recollection at the time, and that he did not intend to deceive or conceal any of his prior arrests from the Real Estate Commission. He acknowledged that he should have indicated his gambling offenses in the plural in Question 9 of the application and that it was not his intention to show it in the singular. In support of this contention, he testified that he had filed a prior application for certification as a real estate salesman with the Commission about 1971, and that on that application he inserted the words "numerous gambling arrests" on Question 9. He felt that this fact, coupled with his admission on the 1973 application as to various offenses, would enable the Commission, when they checked his prior record, to obtain all relevant details concerning his prior criminal record. He further testified that he had never been convicted of gambling and that the charge of possessing gambling paraphernalia involved racing forms which were found in his motor vehicle. He further testified that he had not been arrested since 1972 and had never had any complaints during his six months of employment as a real estate salesman. Mr. Samen, an investigator for the Commission, testified that the Respondent had been very cooperative in his investigation of this case. He also stated that Respondent never indicated to him that he had filed a prior application for certification, and that the file of the Respondent had not reflected any previous application having been filed. Respondent acknowledged at the hearing that he had answered "No" to Question 14 on the 1973 application concerning whether or not he had previously filed any application for registration as broker or salesman in Florida which had not been granted, but that this was due to misreading the question. Pursuant to stipulation at the hearing, Mr. Fetner, Associate Counsel for the Commission, agreed to search the Commission records after the hearing to determine whether or not Respondent had filed a previous application and to submit a late-filed exhibit concerning this fact. By letter of November 21, 1975, Mr. Fetner provided evidence to the Hearing Officer that the Commission records did reveal that Respondent had taken an examination for registration as a real estate salesman in 1968 but had failed the same, and that this fact would establish that Respondent had filed a previous application for registration because the granting of approval to take an examination is predicated upon the applicant having filed an application for registration. The records of the Commission, however, indicated that the prior application filed by Respondent was destroyed in 1973, or prior thereto (Petitioner's Composite Exhibit 9). In view of the foregoing substantiation of Respondent's testimony as to the filing of a prior application, testimony that he had advised the Commission of numerous gambling arrests in Question 9 of that application is deemed to be credible and is accepted as a fact, there being no evidence submitted to the contrary.
Findings Of Fact Respondent James R. Azevedo is now and was at all times relevant herein a licensed real estate salesman having been issued license number 0396545. Respondent Allen Q. Smith is now and was at all times relevant herein a licensed real estate broker having been issued license number 0193451. Respondent M.S.D.S., Inc. d/b/a Sherwood Commercial Brokers, Inc. is a corporation licensed as a broker having been issued license number 0220922. At all times relevant to this proceeding, Respondent Smith was the sole qualifying broker and officer of Respondent M.S.D.S., Inc. d/b/a Sherwood Commercial Brokers, Inc. The Administrative Complaint was filed as a result of a transaction whereby Mr. Larry Chase sought to sell his swimming pool maintenance business using the brokerage and sales services of Respondents. When a proposed sale fell through, Respondents returned a $2,000 earnest money deposit to the purchaser. The return of the $2,000, which is the subject of the Administrative Complaint, was entirely proper under the circumstances. Mr. Chase does not dispute either Respondents' return of the deposit or the manner in which the return was carried out. Apparently, grievances between Respondents and Chase developed as a result of a later sales transaction where Respondents were, in their view, wrongfully deprived of their commission. However, there was no evidence whatsoever of wrongdoing by Respondents related to the charges herein.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ENTERED this 21st of August, 1984, in Tallahassee. Florida. R. T. CARPENTER 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 21st day of August, 1984. COPIES FURNISHED: Fred A. Langford, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Robert W. Beaudry, Esquire LYONS and BEAUDRY, P.A. 1605 Main Street Suite 1111 Sarasota, Florida 33577 Mr. Allen Q. Smith 5036 Camus Street Sarasota, Florida 33582 Harold Huff Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 20th day of January, 1986
Findings Of Fact Respondent is licensed by the Department of Professional Regulation as a real estate salesman having been issued license number 0142776, effective August 27, 1984. Linda J. Nuccitelli is his registered employer. John Nuccitelli was respondent's former registered employer. In February, 1983, a final order was entered by the Florida Real Estate Commission which revoked the broker's license of John L. Nuccitelli. The final order was appealed, and the District Court of Appeal, Fifth District, stayed the order of Real Estate Commission pending disposition of the appeal. The appellate court ultimately affirmed the order of the Real Estate Commission, and the court's mandate was issued on March 16, 1984. On April 1, 1984, respondent's license was renewed by the Department of Professional Regulation even though John Nuccitelli was named as his employer. The respondent was notified of the revocation of John Nuccitelli's license and automatic cancellation of respondent's license as a salesman, by letter from the Florida Real Estate Commission dated June 21, 1984. Prior to receipt of that letter neither the respondent nor John L. Nuccitelli were aware that the appeal process has been completed and the final order revoking Mr. Nuccitelli's broker's license had become effective. On April 16, 1984, the respondent submitted to the U.S. Department of Housing and Urban Development (HUD), on behalf of Israel Branton, an offer to purchase certain property located at 4746 Miramar Road. The offer was set forth on a standard form entitled "Offer to Purchase and Broker's Tender." The form has a space for the signature of the broker and also has a space for the name and address of the broker. The offer to purchase designated "Anchor Realty REALTOR John Nuccitelli" as broker. Respondent signed his name in the space designated "Signature of Broker". The offer was accepted, and a HUD Standard Retail Sales Contract was executed. At the bottom of the contract is a certification to be signed by the broker. Typed in above the line stating "Name of Broker and Phone No" is "Anchor Realty REALTOR John Nuccitelli 305-422-0747." The line below states "By", and is signed "Louis Boatman, Jr. associate." On the Forfeiture of Earnest Money Deposit form, also submitted to HUD in connection with the transaction, respondent's signature is located on the line provided for the signature of the selling broker. A sales/broker's commission of $1,623.00 was paid to Anchor Realty as a result of this sale. (Petitioner's Exhibit No. 3) On April 27, 1984, respondent submitted to HUD on behalf of Israel Branton an offer to purchase property located at 5019 Columbia Street, Orlando. As in the transaction above, "Anchor Realty REALTOR John Nuccitelli" is named as the broker and respondent signed his name in the space provided for the signature of the broker. The certificate at the bottom of the Standard Retail Sales Contract was executed in the same manner it was on the contract for the property on Miramar, indicating "Anchor Realty REALTOR John Nuccitelli" as broker and signed by "Louis Boatman, Jr. Associate." On the Forfeiture of Earnest Money Deposit form submitted to HUD in connection with the transaction, respondent's signature was located on the line provided for the signature of the selling broker. (Petitioner's Exhibit No. 4). Israel Branton had known the respondent several years and was aware that respondent was a salesman and not a broker. Judy Sellers of Lawyers' Title Insurance Corporation, who handled the closing on the Miramar property, was aware that respondent was a salesman and John Nuccitelli was the broker for Anchor Realty. John Nuccitelli had given respondent authorization, as his agent, to sign all documents submitted to HUD on his behalf. Mr. Nuccitelli was aware that respondent was a very competent salesman with a thorough understanding of HUD paperwork and procedures. Due to the time restraints involved with HUD sales, respondent sometimes worked until midnight preparing the paperwork that had to be delivered to Tampa the next morning. To avoid having to get up before 5 a.m. to sign the documents himself, Mr. Nuccitelli told the respondent to sign: the documents for him. However, Mr. Nuccitelli was always fully informed about the transactions The Department of Housing and Urban Development has no objection to a salesman signing on behalf of a broker as long as the broker has authorized the salesman to do so. On August 2, 1984, respondent submitted to HUD, on his own behalf, an offer to purchase property located at 4777 Pleasant Valley, Orlando. Mr. Schroeder, Chief of the Loan Management and Property Disposition Branch of HUD, Tampa Office, rejected the offer noting on the document that the "OFFER MUST BE SUBMITTED BY A LISCENSED (sic) Broker." Mr. Schroeder had been informed shortly before August 2, 1984, that Mr. Nuccitelli's broker's license had been revoked and that the people who worked for him at Anchor Realty were not legally licensed. The Offer to Purchase had been signed by respondent as applicant and as broker, and it named "Anchor Realty REALTOR" as broker. Respondent indicated Anchor Realty as broker because respondent was still with Anchor Realty, and he filled out the form as he always had. However, he had not been authorized by Linda Nuccitelli to sign as the broker. Linda Nuccitelli became the licensed broker of Anchor Realty in August of 1984. Respondent did not represent to anyone that he was a broker. He never concealed the fact that he was a real estate salesman. He signed the HUD forms in the places for the broker's signature because John Nuccitelli told him that he could do so. At the same time, respondent clearly named "Anchor Realty REALTOR John Nuccitelli" as the broker. Mr. Schroeder, the HUD official who signed the contracts, was aware that John Nuccitelli was the broker. Mr. Schroeder indicated that HUD officials don't look at the signature on a form too closely but rely instead on the name that is typed in the appropriate space to determine the broker. The evidence presented established that respondent did not intend to deceive or mislead anyone and that in fact, no one was deceived or misled. Respondent has held a real estate license for about 15 or 16 years and has never had a disciplinary action filed against him until the instant complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts I and III of the Administrative Complaint be dismissed, that respondent be found to have violated section 475.42(1)(b), Florida Statutes, and that respondent be fined $500 pursuant to section 475.25(1)(a), Florida Statutes. DONE and ENTERED this 5th day of February, 1986 in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, 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 5th day of February, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard J; R. Parkinson, Esquire 602 East Central Avenue Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 APPENDIX The following constitutes my specific rulings pursuant to section 120.59(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 Accepted in Finding of Fact 1. Accepted in Finding of Fact 2, except last half of last sentence which is a legal conclusion. Accepted as modified in Finding of Fact 4. Accepted as modified in Finding of Fact 5. Last sentence rejected as irrelevant and not supported by the evidence. Rejected as not supported by the evidence. Respondent signed on behalf of the broker, and clearly signed by respondent as "associate." Accepted in Finding of Fact 9. Accepted in Finding of Fact 3. Rulings on Proposed Findings of Fact Submitted By Respondent 1. Accepted in Findings of Fact 1, 2 and 3. 2. Accepted in Findings of Fact 4 and 7. 3. Accepted in Findings of Fact 5 and 7. 4. Accepted in Findings of Fact 7 and 8. 5. Accepted in Finding of Fact 9. 6. Accepted in Finding of Fact 6. 7. Accepted in Finding of Fact 2.
