The Issue Whether the respondent's license as a real estate broker should be revoked, suspended, or otherwise disciplined because respondent entered a plea of guilty to the offense of unlawful compensation.
Findings Of Fact Respondent is and was at all times pertinent to this proceeding a licensed real estate broker with the State of Florida, holding license number 0166810. On June 18, 1982, an information was filed in the circuit court charging that between the dates of December 10, 1980 and December 1, 1981, the respondent "did corruptly request, solicit, accept or agree to accept money not authorized by law for past, present, or future performance, to wit: by sending business to Don's Alignment Shop, which said ALBERT RONALD HURLBERT did represent as having been within his official discretion in violation of a public duty or in performance of a public duty, in violation of Section 838.016, Florida Statutes." On July 16, 1982, the respondent appeared before Judge Thomas Oakley and entered a plea of guilty to the offense of unlawful compensation as charged in the information. Adjudication of guilt was withheld and respondent was placed on probation for a period of four years. Respondent was given an early release from probation on August 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter an order finding that the respondent has been convicted or found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing and revoking the respondent's real estate license. DONE and ENTERED this 27th day of February, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Mr. Albert R. Hurlbert c/o Hurlbert Realty 8117 Lakeland Street Jacksonville, Florida 32205 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32303 Howard Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802
The Issue Whether Respondent's License No. 0003558 as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined for violation of Section 475.25(1)(e), Florida Statutes. Petitioner served a copy of its Administrative Complaint, Explanation of Rights, and Election of Rights upon the Respondent at the last address he had registered with the Commission, i.e., 6800 W. 16th Avenue, Hialeah, Florida 33014, by registered mail on July 31, 1975. Respondent executed the "Election of Rights" form in which he requested a hearing, on August 19, 1975, and returned it to Petitioner. On December 5, 1975, Petitioner mailed a copy of Notice of Hearing to the Respondent by registered mail to the same address. It was returned by the U. S. Post Office to Petitioner with the notation "Moved, Left No Address" (Exhibit 1). Accordingly, it was considered that Petitioner had complied with applicable requirements concerning notice and, the Respondent not being present at the time of hearing, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent received his registration as a real estate salesman on June 18, 1973, and has been continuously registered with Petitioner since that date (Exhibit 2). An Information filed by the State Attorney of the Eleventh Judicial Circuit of Florida, Number 73-3060, charged Respondent with nine counts of violating Section 832.05(3), Florida Statutes, by nine worthless checks in the amount of $50.00 each which were unlawfully drawn, made, uttered, issued or delivered to Winn Dixie Stores, Inc., during the period December 27, 1972 to January 8, 1973. A similar Information, Number 73-2663, was filed with respect to four checks to the Grand Union Company during the period October 18, 1972 through October 24, 1972 in the same amounts (Exhibits 3, 5). On September 13, 1973, Respondent pleaded guilty to the charges filed against him in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and an Order Withholding Adjudication was issued in Case No. 73-3060, finding the Respondent guilty based upon the entry of a guilty plea to the charge of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $50.00 (nine counts) and withholding adjudication of guilt. On the same date, the same court issued another Order Withholding Adjudication of guilt in Case No. 73-2663 for the four fifty dollar checks involved therein (ExhibitS 4, 6).
Recommendation That the registration of Leonard H. Balkan as a real estate salesman be suspended for a period of two years. DONE and ENTERED this 3rd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Leonard H. Balkan Louis B. Guttmann, III, Esquire 6800 West 16th Avenue 2699 Lee Road Hialeah, Florida 33014 Winter Park, Florida
The Issue Whether the petitioner meets the qualifications for licensure as a real estate salesman.
Findings Of Fact On July 6, 1984, the petitioner filed an application for licensure as a real estate salesman with the Department of Professional Regulations Division of Real Estate. The petitioner responded in the affirmative to question 6, which asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere. . .", and set forth the details as follows: "Attempted Possession of Stolen Property" (New York) Bronx Date of Probation May 29, 1984 Date of Conviction November 16, 1983 Probation Officer Ms. English 212-590-3101 By letter dated September 24, 1984, and undated letter filed October 31, 1984, the petitioner was informed that the Commission had denied his application for licensure. In pertinent part the letter stated as follows. "The power of the Commission to review and deny applications is based upon Sections 475.17 and 475.25, Florida Statutes. Subsection 475.17(1) calls for the applicant to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. . ." The reason for the Commission's action is based on your answer to Question(s) 6 of the licensing application and/or your criminal record according to the appropriate law enforcement agency. The petitioner owned a secondhand jewelry business in New York, similar to a pawn shop. He dealt with people all over the world, mainly wealthy people, and they sold him antiques and jewelry. He informed anyone coming in his store that he did not buy stolen goods and had a sign on his wall so stating. One gentleman, that had been a client for approximately three years, came into the store about every six or seven months to sell something. The last time this individual came into the store, about four weeks before the petitioner closed his business and moved to Florida, the individual implied that the gold he was selling might not belong to him. However, petitioner wasn't paying particular attention at that time to what the individual was saying since the petitioner had had previous dealings with him. After moving to Florida, in February of 1983, Petitioner was notified that he had been indicted in Bronx, New York. He flew back to New York and turned himself into the authorities. He discovered that the gentleman with whom he had been dealing for three years was a New York police officer and that their conversations had been taped. The tape revealed that during the last transaction the officer had implied that the gold he was selling did not belong to him. Petitioner pleaded guilty to attempted possession of stolen property, a felony, and was placed on probation for five years beginning in December, 1983. Petitioner has had a very good record while on probation. The petitioner held a real estate license in New York for over 10 years which has now expired. The license was never suspended or revoked and petitioner never had any other type of problem while in the real estate business. Since petitioner has been in Florida he has held responsible jobs handling large amounts of money. His employers, friends and coworkers have been impressed with his reliability, integrity and honesty. Petitioner presented sufficient evidence to show that since living in Florida he has been honest, truthful, trustworthy, of good character, and has a good reputation for fair dealing. Nevertheless, respondent pleaded guilty to the crime of attempted possession of stolen property and is still on probation for that crime. Although an isolated unlawful act or criminal conviction in the past does not necessarily mean that an individual is presently dishonest, untrustworthy or of bad character, 1/ it must be concluded that when an individual is presently on probation for a crime involving dishonest dealing, the unlawful act or conviction is not so remote that it can be deemed an isolated incident in the past. Because Petitioner is still on probation for a crime that involves dishonesty and a lack of trustworthiness, petitioner has not established that he meets the requirements of Section 474.17(1)(a), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that petitioner's application for licensure be DENIED. DONE and ENTERED this 12th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 12th day of December, 1985.
Findings Of Fact Petitioner is registered as a real estate salesperson and by application dated 26 March 1979 applied for registration as a real estate broker (Exhibit 1). In item 6 on this application, in response to the question regarding the commission of an offense against municipal or state laws, Petitioner replied she had been "charged with Grand Theft with intent to Fraud - Plead Guilty - adjudication was withheld, 5 years probation given." Petitioner is current with her parole conditions including $190 per month restitution to the victim, the Pan American Bank. Barring any parole violations, her parole officer would possibly recommend her parole be reduced or terminated 2 1/2 years after it commenced on January 15, 1979. Although her paroled officer has had face-to-face contact with Petitioner only three times during the eight months she has been Petitioner's parole officer, Petitioner has contacted her by telephone at least monthly as required by the parole conditions and the parole officer would trust Petitioner to handle her money in an escrow account. Two business associates for whom Petitioner worked as a real estate salesperson consider Petitioner to be a competent real estate salesperson with whom they would trust escrow funds. A casual but long-term acquaintance who has had both social and professional contacts with Petitioner for the past two years has seen nothing to make her believe Petitioner to be untrustworthy. The absent witness, a member of the Florida Bar whose testimony was stipulated, has used Petitioner as his agent in the sale and purchase of a residence and he was satisfied with her performance. Further, he has never known Petitioner to cheat anyone and believes her reputation in the community to be good.
Recommendation RECOMMENDED that the application for registration of Susan Long Bruner as a real estate broker be denied and her petition dismissed. ENTERED this 30th day of April, 1980. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April. COPIES FURNISHED: Thomas V. Infantino, Esquire Kenneth Meer, Esquire P.O. Drawer B Winter Park, Florida 32790 Salvatore A. Carpino, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact At all material times, the Respondent Tremone Rudman was an active real estate salesman having been issued license number, 0201202. The Respondent Rudman was employed by Fantastic Properties, Inc., as a salesman from February 6, 1979 until September 6, 1979. The broker and owner of Fantastic Properties, Inc., from February 6, 1979 through September 6, 1979, was Elaine Mueller. In July 1979, the Respondent Rudman negotiated a contract between Barbara Medema, seller, and Eugene and LaLita Mascarenhas, buyers, for two separate parcels of property described as Lot 14, Block Y, Coral Springs Subdivision Number 1 (parcel number 1) and Lot 13, Block Y, Coral Springs Subdivision Number 1 (parcel number 2). The transaction involving the properties was scheduled to close on November 12, 1979, at Taylor Title and Abstract in Sunrise, Florida. At the time of the closing, the Respondent Rudman and Elaine Mueller had terminated their business relationship due to personal differences. The Respondent was concerned that he would not receive his share of the Mascarenhas commission because of difficulties he was having collecting his share of other commissions from Mueller. In response to his actual or perceived difficulties in obtaining pending commissions, the Respondent Rudman made demands upon Mueller, his broker, and Pat Taylor, the title agent handling the closing, to disburse the Respondent's portion of the Mascarenhas commission directly to him rather than through the broker at closing. The closing, which occurred on November 12, 1979, was difficult and lasted long into the afternoon. During the course of the closing the Respondent placed calls to Taylor Title Company to ascertain when he could pick up his commission check. Elaine Mueller indicated to Taylor that the proper procedure should be that the check would be made payable to Fantastic Properties, Inc., as the broker, and that Fantastic Properties would then write a check to the Respondent, as the salesman. The procedure suggested to Taylor was not acceptable to the Respondent due to his belief that Mueller might delay his check. The Respondent contacted his attorney, David Hoines, and instructed him to demand that the commission check be issued directly to the Respondent. On November 12, 1979, at approximately 5:30 p.m., Hoines called Taylor Title Company, and in conversation with Mueller and Taylor, demanded that the commission check in question be paid directly to the Respondent per his client's request. Both Mueller and Taylor expressed apprehension concerning such a procedure and advised Hoines that in their opinion, they could not legally issue a commission check directly to the Respondent, a salesman. Hoines reiterated his demand on behalf of his client and threatened to institute legal proceedings which could stop the closing and/or create problems for both the buyer and the seller. Hoines indicated to Taylor that he had the means at his disposal to bring the closing to a halt if the commission check was not distributed to his client as he demanded. When Taylor inquired concerning what those means were, Hoines refused to elaborate. Hoines acknowledged that he had specifically made reference to a declaratory judgment action and in that sense, threatened legal action. He also stated that he ignored the statements made to him by Mueller and Taylor that the procedure he demanded that they follow was illegal. As a consequence of the actions taken by the Respondent Rudman and his attorney at his initiation, Mueller was placed in an untenable position. On one hand, Mueller was threatened with legal action if she did not pay the commission to the Respondent and on the other, she knew that if the closing did not take place that day, it would probably never occur since the outstanding mortgages on the two parcels were months in arrears. Mueller's problems with the mortgages on the property were also known to the Respondent when he and his attorney demanded the commission check. Mueller objected to issuing a check to the Respondent but was concerned that withholding the check could result in stopping the closing as a result of the threatened legal proceedings. Under such circumstances, Mueller did not voluntarily consent to the issuance of the check to the Respondent. As characterized by counsel for Petitioner, Mueller "acquiesced" rather than risk the possibility that the Respondent or his attorney would initiate action which could have affected the sale. Thus, the "consent" given by Mueller was under protest, the result of coercion and was not free and voluntary. As a result of Respondent's demands, Pat Taylor contacted her attorney, Mr. Finn, who instructed her to type the document dated November 13, 1979, Petitioner's Exhibit 10. Mueller did not see this document nor did she assist in its preparation. On November 13, 1979, Taylor presented the document, together with a check for the Respondent's share of the commission to Respondent at his office. The Respondent accepted the check which was made payable to "Tremone Rudman". The Respondent then signed the document and added, "I do not agree to the foregoing." The Respondent subsequently negotiated the check. The Respondent Rudman acknowledged that he was not collecting on behalf of the broker with whom he was employed when he received this commission, nor did he collect the funds on behalf of Fantastic Properties, Inc., for whom he was no longer employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order finding the Respondent Rudman guilty of violating Sections 475.25(1)(b) and 475.42(1)(b) and (d), Florida Statutes (1979), and suspending his real estate salesman's license for ninety (90) days. DONE and ORDERED this 2nd day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of March, 1983. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Richard H. Adams, Jr., Esquire Carlos B. Stafford, Executive PLEUS ADAMS FASSETT & DIVINE Director 220 North Palmetto Avenue Florida Real Estate Commission Post Office Box 2747 Post Office Box 1900 Orlando, Florida 32802 Orlando, Florida 32802 William M. Furlow, Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation - Legal Section Regulation 400 West Robinson Street 130 North Monroe Street Orlando, Florida 32801 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 0000925 DOAH NO. 81-2152 TREMONE RUDMAN, Respondent. /
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to the provisions of Section 57.111, Florida Statutes (2004), and, if so, in what amount.
Findings Of Fact In May 2003, Respondent filed an Amended Administrative Complaint against Petitioner. The Amended Administrative Complaint was brought before the Florida Real Estate Commission Probable Cause Panel (Probable Cause Panel) for a determination of probable cause. The Probable Cause Panel reviewed the entire record and found probable cause to file an Amended Administrative Complaint against Petitioner alleging various violations of Section 475.25, Florida Statutes (2004). On or about July 2, 2003, Petitioner served Respondent, through counsel, with Petitioner's response to the Amended Administrative Complaint. Petitioner did not dispute the essential allegations of material fact in the Amended Administrative Complaint, but raised affirmative defenses to the allegations. On or about November 19, 2003, at the Florida Real Estate Commission (FREC) meeting, Petitioner's counsel stated that they did not dispute the essential facts as alleged in the Amended Administrative Complaint and requested a formal hearing based on additional facts alleged by Petitioner, but not Respondent. Following a formal hearing, a Recommended Order was entered by the undersigned Administrative Law Judge on August 11, 2004, in the case of Department of Business and Professional Regulation, Division of Real Estate v. Nicholas Anthony Musashe and the Jander Group, Inc. (Petitioner herein). The case arose from allegations that Mr. Musashe and Petitioner violated various provisions of the Real Estate Practice Act, Chapter 475, Florida Statutes (2004), with respect to the handling of certain deposits. Petitioner is a Florida corporation owned by Mr. Musashe. Petitioner is licensed as a real estate broker under the provisions of Chapter 475, Florida Statutes (2004). Petitioner's sole business is managing rental properties. The gravamen of the complaint against Petitioner was that it failed to handle certain deposits as directed by provisions of Chapter 475, Florida Statutes (2004). Petitioner's defense was that it handled those deposits in accordance with the Residential Landlord and Tenant Act, Chapter 83, Part II, Florida Statutes (2004), specifically Section 83.40, Florida Statutes (2004). That provision provides that compliance therewith specifically exempts real estate licensees from having to comply with the provisions of Chapter 475, Florida Statutes (2004), concerning rental deposits. Furthermore, Petitioner's method of handling these types of deposits under the Residential Landlord and Tenant Act, rather than under Chapter 475, Florida Statutes (2004), had been earlier specifically approved of by Respondent. Prior to filing the underlying case and without notice to real estate brokers, Respondent reversed its position. It now required real estate licensees to comply with the provisions of Chapter 475, Florida Statutes (2004), instead of Chapter 83, Florida Statutes (2004), on how these types of deposits should be handled. Petitioner relied, to his detriment, upon the previously-held position of Respondent in handling the subject deposits. The Recommended Order found in Petitioner's favor and recommended dismissal of the charges. A final order essentially adopting the Recommended Order and dismissing the charges was filed by the FREC on January 7, 2005. However, the Final Order rejected the first sentence of the Conclusions of Law, paragraph 24, and the first two sentences of the Conclusions of Law, paragraph 29, in the Recommended Order and asserted that it has substantive jurisdiction over the provisions of Section 83.49, Florida Statutes (2004). Respondent holds that the alternative procedure for handling deposits set out in Section 83.49, Florida Statutes (2004), does not apply to deposits that are made by a person who is not entitled to occupy a property as part of an application that is not a rental agreement. Petitioner was the "prevailing party" in the underlying action, as that term is defined in Section 57.111, Florida Statutes (2004). At the time of commencement of the action, Petitioner was a "small business party" as that term is defined in Section 57.111, Florida Statutes (2004). A Petition for Costs and Attorney's Fees pursuant to Section 57.111, Florida Statutes (2004), was filed by Petitioner with Respondent agency on February 7, 2005. Respondent took no action on said Petition. The Petition was late-filed with DOAH on April 18, 2005. The attorney's fees of $49,610.00 and costs of $1,137.98 sought by Petitioner are reasonable for the defense of this action. The actions of the agency in bringing the initial proceeding were substantially justified. There are no circumstances which would make an award of costs and attorney's fees unjust.
The Issue The issue at the hearing was whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the real estate brokerage business. Petitioner's principal office is located in Niceville, Florida. Petitioner's business does not employ more than twenty- five (25) full-time employees and has a net worth not exceeding $2,000,000.00. In DOAH Case No. 88-3758, the Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint dated June 23, 1988. The Administrative Complaint alleged that the Petitioner was guilty of having failed to account and deliver to any person at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, deposit, draft or other documents or things of value, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain, under the circumstances in violation of Subsection 475.25(1)(d), Florida Statutes. The facts allegedly supporting the Administrative Complaint were Petitioner's failure, after entry of a County Court Judgment, to return a sum of money to the potential buyers of Petitioner's own house. The money was received by Petitioner and retained by Petitioner in a transaction involving the sale of his own home. The transaction did not involve Petitioner as a broker and did not involve Petitioner as an escrow agent. The escrow agent specified in the contract was another real estate company. The Administrative Complaint was based on the Board's determination of probable cause at its meeting on June 21, 1988. At that meeting, Mr. Fred Wilson, Chief Staff attorney for the Division of Real Estate, presented the case to the probable cause panel. The presentation of the case was wholly based on the investigative file developed by DPR's investigator. A review of that investigative file and the transcript of the probable cause proceeding does not support a finding of probable cause in this case. In order to support such a finding, the evidence considered by the Board must disclose that there is a reasonable basis in law and fact for the agency to proceed with its intended action. In this case, The agency's intended action was to clearly and convincingly establish that the licensee failed to account and deliver escrowed property to the person entitled to such property in violation of Section 475.25(1)(d), Florida Statutes and in light of the controlling law in this area as set forth in Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). It is clear that from the inception of these proceedings, the facts which drove the prosecution of this case were that a sale of real property was involved along with an unpaid civil court judgment and a buyer's check with the words "house down payment" written in the space for memos on the check. The investigative report did not contain any facts supporting an escrow between Petitioner and his potential buyers. Nor, did the report contain any facts which established that Petitioner acted as a real estate broker in the transaction involving his house. The investigative report seems to be more concerned with collection of the judgment debt than with ascertaining facts crucial to the determination of a violation in this case. As such, the Division did not have a reasonable basis in law and fact at the time it initiated the action against Petitioner and therefore said proceeding was not substantially justified. After hearing, a Recommended Order was entered on April 11, 1989, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that the Petitioner, Nevin H. Nordal, was acting as the seller of his own property and not as a broker in the transaction in question and that the sum of money received by the Petitioner was not properly escrowable property. Additionally, the recommendation was based on conclusions of law that Subsection 475.25(1)(d), Florida Statutes, the subsection under which the Petitioner was charged, only applies when escrowed property is involved and is not applicable in instances where a real estate broker is acting as the seller of his own real property unless the contract for sale establishes the seller/broker as the escrow agent, citing Fleischman. Other types of contractual disputes, whether involving personal real estate transactions by a licensee or not, may not be enforced by disciplinary action undertaken by a regulatory agency. The fact that a judgment had been rendered against the Petitioner by the civil court does not, by itself, make a contractual dispute actionable by a regulatory agency since such a judgment was nothing more than a debt similar to any debt owed to a bank or a department store. Mere refusal to pay such debts is not a ground for discipline under Chapter 475. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation contained in the Recommended Order and dismissed the Administrative Complaint on May 16, 1989. The Petition for Attorney's Fees and Costs pursuant to Rule 22I-6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, subsequently filed was timely, having been filed within sixty days (60) after the date on which the Petitioner became a prevailing small business party. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,160.00 and costs in the amount of $505.65 in DOAH Case NO. 88-3758. These fees and costs are reasonable. At the Final Hearing in this cause, Petitioner's attorney filed an Affidavit as to Additional Fees and Costs incurred by Petitioner in the preparation for and litigation of Petitioner's entitlement to an award of attorney's fees and costs under Section 57.111, Florida Statutes. Said Affidavit stated the additional attorney's fees incurred as $530.00 and the additional costs as $15.40. The additional fees and costs are reasonable. No evidence was presented that demonstrated the presence of any special circumstances which would make an award of attorney's fees and costs unjust in this case. Petitioner is entitled to an award of attorney's fees in the amount of $5,690.00 and costs in the amount of $521.05 for a total amount of $6,211.05 due to Petitioner from Respondent.
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
