Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. .
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THR AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900({a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-292 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this VO ary of , 2009. aula Ford wee Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Geoffrey Kirk Assistant County Attorney Hernando County 20 North Main Street, Suite 462 Brooksville, Florida 34601-2850 Thomas S. Hogan, Jr. City Attorney The Hogan Law Firm 20 South Broad Street Brooksville, Florida 34601 Paul Carland, General Counsel Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondents, Al and Catherine Kravchuk, respectively, hold Florida real estate licenses 0420576 and 0436106. Both licenses are sales licenses. The license of Respondent, Al Kravchuck, became inactive sometime between June 24, 1991, and October 1, 1991. From July 8, 1991, to January 4, 1993, Respondent, Catherine Kravchuck, was licensed as a salesperson with Davis Land Company, Inc. ("Davis Land Company"). From 1979 through 1993, Davis Land Company was engaged in the development of single family subdivisions in the area of Orlando, Florida. Mr. Joel C. Davis was the president of Davis Land Company. Mr. Davis was a nonlicensed owner-developer. Flamingo Lakes Subdivision in Kissimmee, Florida ("Flamingo Lakes") was one of the developments undertaken by Davis Land Company. Davis Land Company employed four sales people at Flamingo Lakes. Respondent, Catherine Kravchuck, was one of the four sales people on staff at Flamingo Lakes. When a contract for sale was generated at Flamingo Lakes, it was turned in at the regular Monday sales meeting. Mr. Davis reviewed the contract to determine the cost of the sale including "extras" and commissions. A cover sheet was attached to each contract to apprise Mr. Davis of the cost of each sale. Respondent, Al Kravchuck, was the U.S. representative for Mr. Christopher Williams and Mr. Jack Dawson. Mr. Williams and Mr. Dawson are residents of Great Britain. Respondent, Al Kravchuck, performed services for Mr. Williams and Mr. Dawson, including services in connection with the purchase of property in the United States. Respondent, Al Kravchuck, represented Mr. Williams and Mr. Dawson in connection with the purchase of Lot 45 in Flamingo Lakes. On January 13, 1992, Respondent, Catherine Kravchuck, prepared a contract between Davis Land Company and Messrs. Williams and Dawson for the sale and purchase of Lot 45. The contract was signed by the purchasers and presented to Mr. Davis at the regular Monday meeting along with the cover sheet. Respondent, Al Kravchuck, was listed on the cover sheet as the cooperating realtor and on the contract as the co-broker. The amount of the commission due the cooperating realtor under the terms of the contract was $5,477.50. Respondents disclosed to Mr. Davis that the commission due Respondent, Al Kravchuck, under the terms of the contract was intended for Mr. Williams. This arrangement was consistent with the understanding that Mr. Williams would refer other customers to Davis Land Company in exchange for the co-broker commission. The contract for the sale and purchase of Lot 45 closed on or about August 28, 1992. The closing statement disclosed that a check in the amount of $5,477.50 was to be paid at closing to Respondent, Al Kravchuck, from the funds due Davis Land Company. Mr. Davis was present at the closing and discussed the prospect of future business referrals with Mr. Williams. Mr. Davis signed the closing statement and accepted the proceeds of closing. The closing agent issued a check for $5,477.50 to Respondent, Al Kravchuck, on September 11, 1992. A memo of the check was sent to Davis Land Company. Pursuant to the agreement of Mr. Williams, Respondent, Al Kravchuck, kept a substantial portion of the $5,477.50 in payment for services rendered to Mr. Williams.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondents be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent, Al Kravchuck, be found guilty of violating Sections 475.25(1)(a) and (e) and 475.42(1)(b) and (d), reprimanded, placed on probation for one year, and required to complete 30 hours of professional education courses within a reasonable period not less than the period of probation. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY 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 25th day of April, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1-6 Accepted in substance Accepted as to broker status but not as to employer. Compare statement of agency in proposed finding 8. Accepted in substance First two sentences rejected as recited testimony. Remainder accepted in substance Respondents' Proposed Findings of Fact 4-9 Accepted in substance (The proposed findings are numbered para. 4-9) COPIES FURNISHED: Al Emil Kravchuk Catherine L. Kravchuk 3099 Bridgehampton Lane Orlando, FL 32812-5951 Steven W. Johnson, Esquire Division of Real Estate 400 W. Robinson Street, North Tower Orlando, FL 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0729
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the state of Florida, in particular Section 20.30, Florida Statutes; Chapters 120, 455 and 475, Florida Statutes and the rules promulgated in accordance with those statutes. Respondent is now and was at all times associated with this administrative complaint a licensed real estate broker in the state of Florida having been issued license number 0251002 under the authority of Chapter 475, Florida Statutes. Respondent's last license was issued as a real estate broker with the firm of Eastern Marketing, Inc. which is located at 17841 U.S. Highway 441, 3 Mount Dora, Florida 32757. RESPONDENT'S ROLE At the time of the hearing, Respondent had been involved in the real estate profession for approximately 18 years. This real estate practice has been exclusively in the state of Florida. In addition to being a real estate broker, Respondent is licensed as a general contractor in Florida and as a mortgage broker in the state. His general contractor's license is a certified license. At times relevant to this inquiry, Respondent was a real estate broker with Collins and Associates, Inc., a real estate brokerage firm. He also had affiliation with Collins Builders, Inc., a licensed general contracting firm. He was a one half owner in Tallahassee Properties, a Florida general partnership in which the other ownership was held by W. Ronnie Collins, Respondent's brother. All of these firms did business in Florida and particular as these firms are involved with the issues in dispute, they did business in Tallahassee, Florida. At times relevant to this inquiry, Respondent was involved in a sales promotion program which has been referred to as a trade-in program. In essence, this program was designed to allow persons who had purchased residences from a firm or through affiliated Collins companies to turn over the initial residence to Tallahassee Properties in exchange for a new home bought from Collins Builders, Inc. with the builder using the real estate services of Collins and Associates, Inc. to sell the new home. The house that was being traded was deeded to Respondent or one of the companies with which he was affiliated. In this case, the company with which Respondent was affiliated with which had property deeded to it was Ralco, Inc. Those persons who were trading one home for another had been solicited by Collins and Associates, Inc. as a realtor in an advertising program. No realtor was involved in making commissions associated with the closing that took place between the sellers who were trading in a home and Tallahassee Properties, Respondent and Ralco, Inc. with whom he was affiliated. This arrangement was designed to stimulate sales of the new home being purchased. The traded homes typically had mortgages. Tallahassee Properties not only took possession of the traded or exchanged homes but was responsible for the activities associated with the closing of the transaction, to include assumption and payment of mortgages associated with the exchanged property. As grantee on the deeds in the traded homes Respondent and Ralco, Inc. were also responsible for assumption and payments. As Respondent identified in his testimony, he and his brother W. Ronnie Collins; Collins and Associates, Inc.; Collins Builders, Inc. and Tallahassee Properties were anticipated as being the individuals to apply for the assumption of loans with the lending agencies who held the mortgages on the traded property. W. Ronnie Collins was also one of the names in the overall scheme in which the traded-in property could be placed as grantee. Approximately 80 homes were traded over a period of 6 or 7 years. The properties in dispute in this case were among them. Respondent had authorized Tallahassee Properties and in particular his brother W. Ronnie Collins as managing partner of that partnership, to place the properties in Respondent's name, W. Ronnie Collins' name or any of several companies affiliated with Respondent in furtherance of identifying a grantee that the mortgage holder would allow to assume the mortgage. Respondent's expectation was that Tallahassee Properties and the title company involved in the closing of the transaction associated with the traded property would facilitate the assumption arrangement with the mortgage holder. The title company used in the cases that are at issue here was Capital Abstract and Title, Inc. In the closings for the traded homes, which are at issue in this case, the evidence presented at hearing which may be relied upon for fact finding did not reveal what attempts were made to have the mortgage holders for the traded homes ultimately accept the substitution of Respondent, his brother or one of the companies with which he was affiliated as parties responsible for the existing mortgages on the traded properties. The reason which Respondent gave for allowing his brother, W. Ronnie Collins to act in his behalf in Tallahassee Properties was that he felt that it was impossible for him to involve himself in that business and its day to day process and at the same time be active in Collins and Associates, Inc. and Collins Builders, Inc. Therefore, he allowed W. Ronnie Collins to act for him in the business of Tallahassee Properties. This explanation has not been disputed and being tenable is credited as true. In accepting deeds related to the traded property, as will be described in the individual instances that follow, Respondent recognized that he had obligated himself to take the responsibility for assumption of and payment of the mortgage. Respondent has no direct knowledge of whether any of the trade-in transactions were followed up by gaining permission from the mortgage holder to allow someone other than the original mortgagor to become responsible for the mortgage payments. The contracts for obtaining the traded-in homes were executed by Tallahassee Properties. Nonetheless, as described, Respondent was given a deed to some of the properties purchased, to include properties in dispute here. Respondent never orally or in writing advised the sellers of the traded property that the routine mortgage payments associated with the traded property and the overall mortgage obligation would no longer be the responsibility of those sellers. In one of the cases which is at issue here involving the trade-in property of John M. and Jeanne B. Miller, Respondent stated that he received their traded property as grantee on the deed. In fact Ralco, Inc. was grantee. When asked about whether he had assumed the obligation for the mortgage that existed on that home, Respondent replied that he had assumed the loan. When asked if he explained the fact to that assumption to the Millers, he pointed out that he had never talked to the individuals. When asked if he had directed anyone in any of his companies or his real estate company in particular to explain the details of the transaction, Respondent pointed out that Collins and Associates, Inc. as realtor, and as a licensed broker had trained each associate to explain all of the rules and procedures associated with Fannie Mae, Freddie Mac, FHA, VA and HUD loans and that Respondent as the broker of those associates would expect that the associates would explain everything to the Millers. Whether the Millers were informed about such matters by Collins and Associates, Inc. employees was not proven. The traded in properties were rented, repaired and sold or kept in inventory by Tallahassee Properties. After purchase of the traded-in properties, Respondent's expectations as a partner in Tallahassee Properties was that the partnership would take possession of the properties and manage them and make payments on existing mortgages associated with any of those properties. Respondent believes that until the latter part of 1985 when he and some of his operations were involved in a Chapter 11 Federal Bankruptcy declaration, payments on the existing mortgages for traded properties were being made, in that had it not been so that he would have been notified. The record offers no proof that can be relied upon to satisfactorily corroborate or rebut this assumption on his part. The Chapter 11 bankruptcy proceeding was not caused by problems associated with the traded properties. Ralco, Inc. was not involved in the bankruptcy. Some of the traded properties in question were owned by Ralco as grantee. Although Ralco was not involved in the bankruptcy, it was unable to make payments because of the bankruptcy in that the houses in question had a negative cash flow and Respondent was unable to take funds from the bankruptcy court and place them with Ralco, Inc. to make the payments on mortgages that existed on the traded properties. Collins Builders, Inc. and Collins and Associates, Inc. were not involved in the closings of the traded property. Their involvement was with the new house being purchased following the trade. The closing associated with the new house under purchase was a separate closing and Collins and Associates, Inc. received a real estate commission for its participation. None of the exact details of the solicitation process by Collins and Associates, Inc. in which homeowners were encouraged to trade existing residences on other homes built by Collins Builders, Inc. were made known, so that it might be understood whether Collins and Associates, Inc. promised to make the attempt to have the lender accept a substitute for the original mortgagor on the mortgage indebtedness, to include the possibility of the outright release of the original mortgages from the debt obligation. Therefore, that solicitation process has no part to play in examining the issue of Respondent's conduct associated with the closings of the traded homes. In the latter part of 1985, following the filing of the petition under Chapter 11, Bankruptcy Laws, Respondent and Duval First Corporation with which he was affiliated were granted an order of relief on December 23, 1985 in Case Nos. 85-07179B and 85-07178C, respectively in the United States District Court, Northern District of Florida, Tallahassee Division. As part of the disposition in front of the bankruptcy court, the bankrupt estates and Real Estate Financing, Inc. agreed that the bankruptcy estates would surrender certain properties and the automatic stay in all expressed injunctions associated with those properties were lifted. The bankruptcy court held that pursuant to 11 U.S.C. 506, Real Estate Financing, Inc. would not be entitled to an unsecured claim against the bankrupt estates for debts secured by the lien on those properties. Those properties had been encumbered by a first mortgage in favor for Real Estate Financing, Inc. The Court found that the value of those properties was equal to or exceeded the debts secured by the mortgage lien of Real Estate Financing, Inc. as of the date of the Order for Relief. In that Order for Relief, Real Estate Financing, Inc. was allowed a secured claim for the full extent of the debt due as of the date of the Order for Relief plus interest accrued up to the extent of the value of each property and up to the date of November 18, 1986. The bankruptcy court did not hold that Real Estate Financing, Inc. was entitled to any unsecured claim for any pre-petition debt that was secured by the lien on its mortgages. Among the properties affected by this action were those properties of David Walsh, Troy Brewer, Sam Hinson, Harold C. Miller, Peter Hartman, and John Miller, all of whom are listed as individuals whose transactions with Respondent are found in the Administrative Complaint and about which Respondent is said to have violated the aforementioned disciplinary provisions of Chapter 475, Florida Statutes. By this arrangement in bankruptcy court, Respondent hoped to avoid the circumstance by which the mortgage was foreclosed leaving a deficiency against the original mortgagor/homeowner of the traded-in property which would in turn lead to some claim against the bankruptcy estates for the amount of the deficiency. Nonetheless, Real Estate Financing, Inc. proceeded to foreclose on its mortgages as subsequently discussed in commenting on the individual counts to the Administrative Complaint pertaining to individual homeowners. While the bankrupt estates would have preferred to deed back the property in lieu of foreclosure, it accepted the foreclosures given the protections to the bankrupt estates that have been identified in this discussion. It should also be mentioned that two of the accounts in the Administrative Complaint pertaining to Eric Larsen and Robert Aubin, to be discussed, were not part of this arrangement in the bankruptcy court associated with Real Estate Financing, Inc. At the closings on the traded homes in question some explanations about the mortgage assumptions were made by persons who may have been representing Tallahassee Properties or other Collins affiliates, but these persons are not clearly identified in the record as to their actual position with those organizations and how Respondent was accountable for their remarks. Those remarks will be discussed in the assessment of the individual counts that follow. Respondent, following the petition for bankruptcy in his own name and that of companies with which he was associated, wrote to advise homeowners who had traded in their homes about his perception of the homeowners' status following that bankruptcy. These letters were written on February 18, 1986 on stationary of the Respondent and were signed by him. In this correspondence, which is the same format in all instances, he would make reference to the date upon which the transaction closed at which time the homeowner deeded over the traded property to Respondent or a company with which he was affiliated. He described the existence of the prior mortgage to Real Estate Financing, Inc. with a loan number and the existence of the paragraph 17, "due on sale" clause and, according to the letter, that the loan was not paid off at the time of the closing and the assertion that the lender would not allow the assumption of that loan by Respondent or one of his companies. Again this record is silent on the subject of what attitude the lender held about this, or even the matter of whether an attempt was made to have the lender accept a new obligor. He described how the lender was not considering Respondent or his company as purchaser but that the original mortgagor was being considered. This was taken to mean that Respondent was trying to express that the lender was looking to the original mortgagor as a responsible entity on the mortgage. The letter described how Respondent or one of his companies had been renting and making payments since the time of closing until December 23, 1985 when declaration of the Petition in bankruptcy went forward. It described how the Respondent and his companies were unable to continue funding payments related to the mortgages on the traded property which was in the name of the homeowners who had traded the property. The letter went on to describe how the payments would be brought current until February 28, 1986. The letter is interpreted to suggest that beyond that point, the property would either be deeded back to the original owner or the lender would foreclose. The letter expressed a preference by Respondent that because, interpreting the letter again, there was no cash flow that he preferred to see the property deeded back to the original owner. The name Bobbie May was given as a contact person and a telephone number provided for the homeowners to call regarding the return of the property back to the original homeowner. The letter goes on to describe an apology from Respondent to the homeowners. Movaline Hill who was a property manager for Tallahassee Properties traded in homes, to include the homes in discussion in the Administrative Complaint, offered her testimony at hearing. The principal business of Tallahassee Properties as established in her testimony was to rent homes. Ms. Hill advertised the property for rent, collected the rent, made payments on existing mortgages on the homes, and took care of maintenance matters. Tallahassee Properties took the rent and put the payments in escrow. One of the homes that Ms. Hill was involved with had belonged to David Walsh. It was a traded home and she had discussed with Walsh getting payment cards or coupons for the mortgage that existed on the traded home. The mortgage company had sent these cards or coupons to Walsh and Hill desired to have them so that the payments on the mortgage could be made. In this connection, Hill wrote Walsh a letter. A copy of that letter may be found as Petitioner's Exhibit 20. It indicates enclosure of a recorded deed on the traded property of Mr. Walsh showing Respondent as having the title in his name. It further states that Mr. Walsh should sign and mail a pre-prepared letter to Real Estate Financing, Inc. telling that lender to change the mailing address and requesting new payment cards. The letter describes that Real Estate Financing, Inc. did not know that the title was no longer in Mr. Walsh's name and that the lender would not transfer the mortgage to anyone and asks Walsh not to send the copy of the deed to the Respondent to the lender. Emphasis is placed in this correspondence on not sending that information to the lender. Ms. Hill was not instructed by anyone to write the letter. The reason why Ms. Hill said that she put an indication in the letter that the transfer of the mortgage could not be done was based upon her assertion that she had been told this by the lender. What connection Respondent had with the letter, if any, was not established. The cards that she received from Mr. Walsh on coupons for payments would have his name struck over and Respondent's name placed on it and Hill would send the check to the mortgage company for payment of the mortgage. With Real Estate Financing, Inc., Ms. Hill was sending one or two checks per month that dealt with 15 or 20 mortgages. There would be a lump sum payment with account numbers and backup materials sent with the check. The backup materials would include the payment cards or coupons. During Ms. Hill's tenure with the Tallahassee Properties, she says that she kept the mortgage payments current. No evidence was presented to the contrary which is competent. From this it is found that mortgage payments were kept current for a period of time which is not specifically shown. She received no contact from the mortgage companies on the topic of any assumption packages for these loans being assumed. She did receive some coupon books with the Respondent's name affixed. Those latter circumstances were not shown to be associated with any of the traded properties that are at issue in this case. Charles O. Middleton testified at the hearing. He had worked in 1981, 1982 and up to September, 1983, with Capitol Abstract and Title, Inc. which served as a closing agent on traded properties that were picked up by Tallahassee Properties. His recollection of the events is that, as closing agent for the title company, he worked from a contract which identified the terms of the transaction. His recollection is that the transactions associated with a trade property and the new home being purchased after trade was handled together. This is in contrast to the understanding of those homeowners whose traded properties are the subject of this Administrative Complaint and Respondent. The explanation by those homeowners and Respondent that two separate closings were held, one for the traded property and one for the newly purchased property is accepted as factually correct. Middleton recalls that explanations were given by him as closing agent concerning the nature of the transaction to include the matters of the paragraph 17 "due on sale" clause. He describes this arrangement as involving an affidavit or hold harmless agreement that had to be signed. This included the initialing of the paragraphs within that agreement by the buyer and the seller. Again, none of the homeowners who sold traded property that is described in the Administrative Complaint recalls such explanations and documents and their recollection is deemed more creditable and is accepted in lieu of the comments by Mr. Middleton. Likewise, the document for purposes of explanation which was offered as Respondent's Exhibit 8 containing disclaimers about the paragraph 17, "due on sale" clause, while admitted, offers no insight into the nature of what the homeowners were told in the cases that are at issue here because it isn't the same form that Middleton recalls using in the transactions he participated in as closing agent and hasn't been shown to be a form used in any of the cases here. Middleton explained that in the transactions he was involved in, the homeowners were provided a copy of every document to be utilized in the closing and that the original documents had their pages turned while the copies for the homeowners were being examined at the same time. A brief explanation would be given about each document and the homeowners were asked if they wished to take some time to read the documents and to ask any questions. Middleton as closing agent would offer to answer questions or put them in touch with the lender and let the lender answer questions. In Middleton's estimation, it was the closing agent's responsibility to make sure that necessary documents were presented to the lenders in the assumption of the mortgage for the traded in property. Respondent had not instructed Middleton in any of the closings on the topic of what to do with closing documents that were used at the time of transaction. Middleton said that he was unable to produce any of the documents of explanation concerning the closings which he participated in for Capital Abstract and Title, Inc. because he has no access to those files. Middleton identified the fact that in a circumstance in which a home had a mortgage and an assumption was called for, an assumption packet would be customarily ordered at the time of the request for assistance in the closing, which he refers to as an order. Middleton identifies the fact that he is only vaguely familiar with the transactions that are at issue in this Administrative Complaint. He thinks he may have closed some of them but he has no specific recollection about that. As a consequence, he has no worthwhile knowledge of how many of those transactions had assumption packages completed. COUNT I Samuel Hinson, Jr. owned property in Arbor Hills which he had bought from Collins Builders, Inc. on June 30, 1982. This house was taken in trade for a house on Starmount. This Starmount home was also purchased from Collins Builders, Inc. and Collins and Associates, Inc. served as the real estate firm for the purchase of the new home as agent for the seller. Andrew Jackson Federal Savings financed the new purchase. The traded in home was sold to Tallahassee Properties with Capital Abstract and Title, Inc., serving as closing agent according to documents presented at hearing. Mr. Middleton did not appear for Capital Abstract at that closing. In the purchaser's closing statement, W. Ronnie Collins is shown as the representative for Tallahassee Properties. Two warranty deeds were made from Hinson in selling his Arbor Hill property. In deeding his Arbor Hill property on May 20, 1983, one of those went to the Respondent and the other to Tallahassee Properties. In both warranty deeds, the grantee promised to assume and pay an existing mortgage in favor of Real Estate Financing, Inc. The existing mortgage on the Arbor Hills property had the paragraph 17 clause which absent certain exceptions allowed Real Estate Financing, Inc. at its option to declare all sums secured by the mortgage to be immediately due and payable, if the property was sold or transferred without prior written consent from the lender. None of the exceptions pertained to this transaction between Hinson and either Respondent or Tallahassee Properties. The paragraph 17 clause also stated that the mortgage holder was considered to have waived its option to accelerate if prior to the sale or transfer, the mortgage holder reached agreement with the purchaser in writing that the credit of the purchaser was satisfactory to the mortgage holder, thus allowing the purchaser to become responsible for the mortgage. In that instance, interest payable on the sum secured by the mortgage would be at the rate requested by the mortgage holder. The mortgagor, Hinson, would be released from all obligations under the mortgage note if the purchaser was substituted on prior written approval. Hinson went into the transactions involving the sale of his Arbor Hill house and the purchase of the Starmount house with the impression that he had to sell the Arbor Hill house in order to purchase the Starmount house. This was his surmise. Money realized in the sale of the Arbor Hill house was used as a down payment for the Starmount home. Petitioner believed that he had an arrangement to purchase the Starmount home with Ralph Collins. In reality, he was purchasing the home from Collins Builders, Inc. with Collins and Associates, Inc. being the seller's broker. In Mr. Hinson's mind, Respondent and Collins Brothers, Inc. and the then Collins real estate firm through Century 21 were all the same. Going into the transaction, Hinson was not familiar with Tallahassee Properties and its business purpose. Respondent was at both closings, the closing to sell the Arbor Hill house and the closing to purchase the Starmount home. No one discussed the matter of the assumption of the mortgage associated with the Arbor Hills house during the course of the closing of that home. Hinson got the impression from events that Respondent had bought his Arbor Hills house and that everything was being paid off. This impression was not based upon anything Respondent said to him. Hinson, after the closings, requested his insurance company to write to First Alabama concerning the cancellation of his homeowners policy on Arbor Hills. His understanding was that the insurance company sent a letter to do this and that First Alabama sent back a letter saying that they needed certain information. That latter correspondence was then taken to the Respondent. Respondent, under those circumstances, stated to Hinson that it was a mistake and that he would handle it, but that it would take some time to get some of the paper work done. Respondent did not comment to Mr. Hinson on that occasion that he had not assumed the mortgage for the Arbor Hill property nor did he indicate that none of the companies with which he was affiliated had assumed the mortgage. Respondent made no comment whatsoever about assumption of the mortgage in this conversation shown by facts presented at hearing. Hinson then got a new payment book from First Alabama, which he received a couple of days after the insurance letter. This was taken to Respondent and Respondent said that he would take care of it, that it was just a mistake. Again, what was meant by this remark was not developed at hearing. Hinson got one of the February 18, 1986 letters from Respondent that has been referred to previously. Having received this correspondence, Hinson complained to the Tallahassee Board of Realtors. Out of the process of his complaint, Hinson met with Keith Kinderman, Respondent's counsel and the Respondent together with Eric Hoffman, counsel to Hinson. Respondent told Hinson he would help get information and that his counsel, Mr. Kinderman would help in getting some form of restitution and help clear Hinson's name and seek relief from the Capital Abstract and Title, Inc. who had closed the Arbor Hill home. In attempting to obtain a Visa credit card and a Sears credit card, Hinson has been denied that credit. The reason given for the denial is the circumstance associated with the Arbor Hills home and non-payment of the mortgage. The exact circumstance of the Arbor Hills property, concerning who holds it now was not proven at hearing by evidence that can be relied upon for fact finding. COUNT II David P. Walsh and Leila DeJarnette Walsh, his wife bought a home in Huntington Woods from Collins Builders, Inc. on December 23, 1981. This home was financed through Real Estate Financing, Inc. and carried a mortgage from that lender. The mortgage included a paragraph 17 whose language was the same as the Hinson home financed by Real Estate Financing, Inc. The Walshes traded in the Huntington Woods property for a home on Faversham Drive which was financed by Citizens and Southern Mortgage Company. Separate closings were conducted. One was for the sale of the Huntington Woods property with Respondent receiving a warranty deed for that property which property was to be taken over by Tallahassee Properties. The second closing was associated with the sale of the Faversham Drive property from Collins Builders, Inc. to the Walshes. In executing the warranty deed in favor of Respondent as grantee pertaining to the Huntington Woods property, a condition of the warranty deed was an agreement by the grantee to assume the mortgage held by Real Estate Financing, Inc. and pay Capital Abstract and Title, Inc. through some person other than Middleton was the closing agent at the transaction involving the sale of the Huntington Woods property, according to documents at the hearing. Both that sale and the purchase of the Faversham Drive property took place on March 30, 1983. The Walshes signed a document reference the escrow account held by Real Estate Financing, Inc. on its Huntington Woods property. There is no indication whether this was or was not signed by Tallahassee Properties or the Respondent and sent to the Real Estate Financing, Inc. pertaining to funds in the escrow account and insurance coverage being transferred from the Walshes to Tallahassee Properties or Respondent as contemplated by the form. The separate closing associated with the Faversham Drive property was done through Tallahassee Title Company. Respondent was at the closing associated with the homes. Mr. Walsh is not in a position to pay for mortgages on two homes. Mr. Walsh's understanding of the trade in of his Huntington Woods home for the Faversham Drive home was to the effect that he could buy a new home from the transaction and that he would no longer be liable for the traded home, that all paperwork would be taken care of. Some salesman involved in these transactions made these remarks to Mr. Walsh; however, he doesn't know who that person was. Consequently, it is not possible to attribute responsibility for those remarks to Respondent. Subsequent to the closings, the Walshes received correspondence purportedly from First Alabama having to do with Real Estate Financing, Inc.'s mortgage held on the Huntington Woods' property. This correspondence of April 4, 1983, by its terms, reminds the Walshes that the mortgage holder has received notification of cancellation of the homeowner's policy and that the Walshes were to provide insurance coverage at all times. What the real circumstances of the homeowners policy was is not proven by competent evidence. In connection with the transactions, Mr. Walsh describes that he felt that he was dealing with a reputable real estate broker and that they had his best interest in mind. He was not represented by counsel at the closings. Mr. Walsh received one of the February 18, 1986 letters from Respondent as previously described. Mr. Walsh hired a lawyer to try to address the situation of the Huntington Woods property without success in the endeavor. To his knowledge the Huntington Woods property has been foreclosed on. No proof which is competent has been presented in the hearing to describe the exact nature of the developments with the property. Nonetheless, Mr. Walsh has had problems receiving credit twice since that time. Before the situation with the property he had never had credit problems. Mr. Walsh was proceeding in these transactions on the basis on the belief that Tallahassee Properties and the Respondent were the same entities. COUNT III Troy A. Brewer and Tina J. Brewer, his wife purchased a home from Collins Builders, Inc. in Huntington Woods on December 30, 1981. This home was financed by Real Estate Financing, Inc. A mortgage was given by the Brewers in favor of Real Estate Financing, Inc. and it included a paragraph 17 assumption clause as described in the Hinson mortgage financed by that lender. On March 25, 1983, the Brewers traded their Huntington Woods property for a home on Faringdon Drive. The seller of the Faringdon Drive property was Collins Builders, Inc. In these transactions, the Huntington Woods property was deeded to Respondent with the provisor in the warranty deed that Respondent would assume and agree to pay for the mortgage in favor of Real Estate Financing, Inc. Mr. Brewer is not in a position to meet mortgage payments associated with two mortgages; one on the Huntington Woods property and one on the Faringdon Drive property. Therefore, he would not knowingly obligate himself to assume mortgages associated with both of those properties. In the transactions associated with the traded property and new home purchased, Mr. Brewer proceeded on the basis that the first home was being taken over by the Respondent and that the mortgage would be paid off after a month or so as a means for him to purchase the second home. What led him to believe this is not clear. Mr. Brewer's recollection is that he was told that everything would be taken care of and he would not have to worry about anything and there wouldn't be any problems about the house being traded and that he could stay in the home that he was selling until the new home had been built and that once built, all transactions would be taken care of. Both the traded property and the property being purchased were financed by Real Estate Financing, Inc. He was not represented by an attorney in these matters. Some undisclosed realtor had told Mr. Brewer he could have an attorney but that he really didn't need one. As shown in the testimony of Mr. Brewer given at hearing, he had spoken to Respondent at closing. He also had conversations with Jackie Collins whom he believed to be a representative of Respondent. Jackie Collins was understood by Mr. Brewer to be a realtor. Again, the exact nature of the affiliation of Jackie Collins to the Respondent or his companies was not established in this hearing. Mr. Brewer did state that at the closing he was told by Respondent that there would be no problems. The nature of that remark was not further developed under interrogation of the witness. Nor was the matter of Mr. Brewer's comment to the effect that he had questioned the fact that his first mortgage on the Huntington Woods home was not assumable and had made that question known at the closing, other than to state that in response "they" had assured him everything would be taken care of and he wouldn't have to worry about it. This was associated with some remarks to the effect that Mr. Brewer should not worry that "we" would take it all in and that "they" would transfer everything over and take it out of the Brewers' name, again not pursued as to who "they" and "we" were and whether Respondent was a "they" or "we" or was in attendance when a "they" or "we" made the comments if he was not a "they" or "we." On this subject, Mr. Brewer was of the understanding that the transfer of the mortgage from Mr. Brewer to Respondent had in fact been tentatively approved by Real Estate Financing, Inc. but this was not proven by competent proof either. Mr. Brewer received one of the February 8, 1986 letters from Respondent as previously described. He in turn composed a letter of complaint concerning the transactions associated with the traded property. The complaint is dated March 31, 1986 and is addressed "To whom it may concern". As a result of the non-payment of the Huntington Woods property, Mr. Brewer received a letter purportedly from First Alabama for Real Estate Financing, Inc. dated February 13, 1986 that indicated that payment for the mortgage in the Brewer property had not been paid in January and February, 1986 and under paragraph 18 of the mortgage, Mr. Brewer was being notified of the failure to make payments and the possibility of the pursuit of these delinquent payments through legal means. Whether the assertions in this unauthenticated hearsay document are true was not proven by competent evidence. Beyond that date, in an action in which Respondent and the Brewers were named as defendants, Federal National Mortgage Association by and through its agent Real Estate Financing, Inc. obtained a Summary Final Judgment of foreclosure on the Huntington Woods property on June 1, 1988. This points out that the Brewers were not released from the mortgage obligation as envisioned by paragraph 17. It does not address what attempts were made by Respondent or his companies to gain their release. As a result of the foreclosure, Mr. Brewer has had problems with his credit. Notwithstanding the foreclosure on the Huntington Woods property, there has been no deficiency judgment entered against Mr. Brewer, to his knowledge. COUNT V On November 30, 1983, Collins Company of Pensacola, Inc. conveyed property at Eldorado Drive in Pensacola, Florida to Harold C. Miller, Jr., a Collins employee. That property was subject to a mortgage from Real Estate Financing, Inc. which included a paragraph 17 as included in the facts pertaining to the Hinson transaction involving that lender. This house was purchased because of a transfer of Mr. Miller to Pensacola as a condition of his employment with the Collins Company. The Collins Company of Pensacola was responsible for paying the mortgages during that time frame. In conversation with Respondent, it was determined that Miller would buy the house and the Respondent would buy it back and in the interim, Mr. Miller would live rent free. On May 23, 1985, a quit claim deed was executed by Mr. Miller in favor of the Respondent returning possession of the Pensacola home. Because Respondent had told Mr. Miller that Respondent would make payments on this home, Mr. Miller did not make any payments. Mr. Miller speaks of a contract that was in writing and was involved in the closing on the Pensacola home when it was purchased and that there was a promise to assume the mortgage held by Real Estate Finance, Inc. This comment is made in a deposition of Mr. Miller which was entered as Exhibit 71 by the Petitioner. Whether this refers to an assumption by the Respondent or someone else is not clear. As pointed out by the deposition testimony, more importantly, this contract was not produced then and is not available now for consideration in the deliberation of this case. Mr. Miller bought another house from Collins Construction in Leon County which is at Foxcroft. At the time of the deposition it was occupied by Susan, Mr. Miller's wife. Real Estate Financing, Inc. sued the Respondent and Harold C. Miller, Jr. and Susan F. Miller, his wife, in a foreclosure associated with the Pensacola property and received a Final Judgement for foreclosure on May 11, 1988. This points out that the Millers were not released from the mortgage obligation. By the circumstances, Mr. Miller was persuaded that the Respondent would take care of the mortgage on the Pensacola home until it was paid off. What the payment history was on the mortgage prior to foreclosure has not been established in this record. In terms of any promises from Respondent about further obligations on the mortgage on the Pensacola home, Mr. Miller describes that Respondent never told him that he was relieved of that obligation or that he wasn't. Mr. Miller did not question the Respondent about this because he trusted him. COUNT VI On September 25, 1981, Collins Builders, Inc. sold a home to Peter A. Hartmann at Grantham Lane in Tallahassee, Florida. Mr. Hartmann borrowed money from Real Estate Financing, Inc. to purchase that home secured by a mortgage that included paragraph 17 the language of which is the same as in the Hinson transaction with Real Estate Financing, Inc. That property was subsequently deeded to Respondent on March 25, 1983. In the deed Respondent as grantee promises to assume and pay the Real Estate Financing, Inc. mortgage on the property. The Hartmann property upon which Real Estate Financing, Inc. held a mortgage was foreclosed upon in a suit by Federal National Mortgage Association by and through its agent Real Estate Financing, Inc. against Respondent and in Peter A. Hartmann. Action was taken by order of court on May 3, 1988 and the property sold on May 27, 1988 as evidenced by a Certificate of Sale from the Clerk of the Circuit Court, Second Judicial Court in and for Leon County, Florida. This points out that Mr. Hartmann was not released form the mortgage obligation. There is a potential for a deficiency judgement against Mr. Hartmann following that sale. The details of the Hartmann transaction were not presented at hearing through his testimony or anyone else. COUNT VII On April 22, 1982, Collins Builders, Inc., sold John A. Miller and Jeanne B. Miller, his wife, a home in Lakewood Estates. That home was secured by a mortgage in favor of Real Estate Financing, Inc. It contained a paragraph 17 which had the language set out in the Hinson transaction with Real Estate Financing, Inc. which has been described. The home at Lakewood Estates was traded for a home in Huntington Woods II. Those transactions took place on March 2, 1984, and on that date the Millers executed a deed to Ralco, Inc., one of Respondent's companies. The warranty deed contained language to the effect that Ralco, Inc. promised to pay on the mortgage held by Real Estate Financing, Inc. Bobbie G. May signed the contract for sales and purchase as representative of Ralco, Inc. The Huntington Woods II property that was bought by the Millers was bought from Collins Builders, Inc. with Bobbie G. May serving as representative for Collins Builders, Inc. in the contract for sale and purchase. The payments were not made as promised by Ralco, Inc. and Respondent sent the Millers one of the February 18, 1986 letters as previously described. Ultimately, Florida National Mortgage Association through Real Estate Financing, Inc. sued Ralco, Inc. and the Millers in foreclosure and obtained a summary Final Judgement of Foreclosure against those defendants. This points out that the Millers were not released from the mortgage obligation. This as with other foreclosures does not speak to attempts by Ralco, Inc. to be allowed to assume the mortgages in a novation. The property at Lakewood Estates which had been traded in was then sold June 28, 1988, as evidenced by a Certificate of Sale from the Clerk of the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida. That judgment against the Millers is shown on the credit report of John Henry Miller. Mrs. Miller understood that the mortgage payments on the traded home would be made until the property was sold by Ralco, Inc. Visits to the neighborhood where that traded home was found did not indicate any activities toward the sale by way of for sale signs. No one was living in the traded home at that time. The Millers were not represented by counsel during the course of the closings associated with the two homes. They were represented in the foreclosures suit. In reference to the credit circumstance of the Millers, in trying to buy a vehicle they had been denied credit once. They were eventually able to buy the vehicle. The Millers had been told when purchasing the initial home at Lakewood Estates that the reason for buying it would be the possibility of being able to trade for a larger home at some later date if needed. Again, it is not clear who made those statements to the Millers. On the day before the closing of the traded home, Mrs. Miller spoke with Sissie Collins whom she understood to be affiliated with Respondent or one of his companies. The record does not show what that affiliation would have been, if anything. In this conversation with Sissie Collins, Mrs. Miller pointed out to Ms. Collins that the loan with Real Estate Financing, Inc. was not assumable without qualifying. Moreover, Mrs. Miller believed that Respondent did not qualify for the loan and that it was not assumable unless he did. Sissie Collins stated that this was not a problem and that Real Estate Financing, Inc. or First Alabama allowed Respondent to assume a mortgage and make the payments until the property was sold and the mortgage was paid off and that Real Estate Financing, Inc. was fully aware of the circumstance. Whether this was true or not was not proven by competent evidence. What Respondent knew about these matters wasn't shown either. At the time of hearing, the Millers had not been called upon to pay any deficiencies associated with the foreclosure of their Lakewood Estates property. COUNT VIII Eric R. Larsen and Young Oak Larsen, his wife, purchased a home from a Collins Company in Huntington Woods Unit II. That house was eventually traded for a home in Cross Creek. The traded home was deeded to Respondent with the promise that Respondent would assume an existing mortgage on the Huntington Woods Unit II property which is owed to Andrew Jackson State Savings and Loan Association and make payments. The closing associated with the traded property took place on December 2, 1982. The new home was being purchased through the same lending institution as the traded home. The Larsens were not represented in the closings associated with the traded home and the purchased home. The closing of the traded home took place in offices of the Respondent's business. The second closing for the purchased home took place at the Andrew Jackson Federal Savings. When Mr. Larsen asked why the deed for his Huntington Woods II property was being made to the Respondent, he was told that it was to facilitate the assumption of the mortgage. By his remarks, Mr. Larsen is not clear on whether the Respondent attended the closing associated with the traded property. He does recall someone whose name is Chip who he thought was the real estate broker who worked with Respondent was at the closing. No further indication of who this man named Chip might be as to association with Respondent or his companies was shown in this record. The Larsens received a February 18, 1986 letter from Respondent as previously described, when the problems occurred about payments for the traded property, and at that time the mortgage was shown as being held by Colonial Mortgage Company. Mr. Larsen also received a letter on April 8, 1987, purportedly from Colonial Mortgage Company, which states that Mr. Larsen is not released from liability on the traded property and some comment about assumption packages having been sent on various dates and reminds Mr. Larsen that the loan could not be assumed without the prospective purchaser's credit having been approved. The letter describes other perceptions about the ability of the Respondent to take over responsibility for the mortgage on the traded property. All of the matters set out in this unauthenticated correspondence are hearsay and they cannot form the basis of fact-finding in terms of whether Respondent or his companies were ever allowed to assume the mortgage on the traded property. People who had a direct knowledge of the mortgage circumstance with Colonial Mortgage Company pertaining to this traded property as with other traded property on which a lender held mortgages and sent letters have not been presented to explain that circumstance by competent evidence. Likewise, the outcome of what has happened with the traded property in the Larsen transaction has not been proven by competent evidence. The explanation of the outcome with that property is hearsay which may not be used as a basis for fact finding. COUNT IX Robert R. and Patricia A. Aubin, husband and wife, traded property under the program which Respondent was affiliated with for taking in one residence and selling another. Mr. Aubin thought that this kind of transaction was common and that led to his telling his financing institution that the same builder was taking back the original home in order to build Mr. Aubin another house, thinking that this might simplify the transaction. In speaking to someone about the obligation to deal with the existing mortgage on the traded property, he identifies the person he was talking to as Ed Hines. Again, it is not clear what Mr. Hines' association was with the Respondent and his companies. The traded home was going to be given to Tallahassee Properties. Mr. Aubin was not certain of the arrangement Respondent had with his individual companies. Ultimately, there was a problem with the payments on the house that had been traded in. Respondent wrote the Aubins one of the February 18, 1986 letters reference the property at Huntington Woods Unit I. An arrangement was being made whereby Real Estate Financing, Inc. received $3,704.48 from Ralco, Inc. by a check of June 26, 1986. That check was issued after Ralco, Inc. conveyed the traded property back to the Aubins on June 17, 1986 and this resolved the problem for the Aubins.
Recommendation In consideration of the facts found and the conclusions of law reached, it RECOMMENDED: That a Final Order be entered which dismisses the Administrative Complaint. DONE and ENTERED this 20th day of October, 1989, at Tallahassee, Florida. CHARLES C. ADAMS, 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 20th day of October, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3850 The following discussion is given concerning the proposed fact-finding offered by the parties. PETITIONER'S FACTS Paragraph 1 is utilized. Paragraph 2 is not necessary to the resolution of the dispute. Paragraph 3 is not necessary to the resolution of the dispute. 4-5. Paragraphs 4 and 5 are set out in the findings of fact. 6-10. Paragraphs 6-10 are subordinate to facts found. Paragraph 11 has not been proven. Paragraph 12 is correct in terms of Hinson's decision to convey the property; however, what Hinson was allowed to believe concerning the matter of assumption as it might show culpability on the part of the Respondent has not been proven. This matter set forth in paragraph 13 has not been proven. Paragraph 14 is not necessary to the resolution of the dispute. Paragraph 15 is not necessary to the resolution of the dispute. Paragraph 16 has not been proven as to any financial losses due to dishonest acts or false promises of the Respondent. Hinson was found to have been denied credit cards. The latter sentence in paragraph 16 is speculation and not fact. Paragraph 17 is subordinate to facts found. Paragraph 18 in the suggestion that the Respondent through his real estate office and salesmen made representations and promises to the Walshes was not proven in the sense that persons involved with the Walshes and the transaction to trade in the home were not sufficiently identified to understand how those persons were affiliated with the Respondent. Paragraph 19 is accepted as to the documents and promises by the Respondent. Again, what the association was of the other person identified as the salesman may have been is not clear in this transaction. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is not proven in the first sentence. The second sentence is subordinate to facts found. Paragraph 23 was not proven. Paragraph 24 is subordinate to facts found. Paragraph 25 is subordinate to facts found except in its suggestion that the Walshes had been deceived in the sense of the idea of the mortgage not having been assumed or attempts made to have it assumed. Paragraph 26 is contrary to facts found. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found except as it identifies the nature of the salesperson and what the affiliation was with Collins and Associates insufficient proof was made to show the true nature of the position of the salesperson in Collins and Associates, Inc., if any, and what Respondent had in mind and any instructions to this person who was reportedly the salesperson. Paragraph 29 is subordinate to facts found as to promises in the document system responsibilities of Respondent. Otherwise it is not accepted. Paragraph 30 is subordinate to facts found except as to its suggestion that deceit has been proven relating to the Respondent's attempts to have the mortgage assumed. Paragraph 31 is subordinate to facts found. Paragraph 32 is subordinate to facts found. Paragraph 33 is subordinate to facts found. Paragraph 34 is subordinate to facts found except as to the suggestion that this problem of the foreclosure dissolved the marriage. Paragraph 35 in its first sentence is contrary to the Impression of the facts. There was a discussion and a decision reached to buy the house, whether Respondent was acting as a real estate broker individually or as a builder developer is unclear. Whether he made his employee buy the house or directed him to is not accepted as a fact. Paragraph 36 is subordinate to facts found. Paragraph 37 is subordinate to facts found. Paragraph 38 was not proven on the issue of whether Respondent applied for an assumption. The Final Judgment of closure was proven. Paragraph 39 is subordinate to facts found. Paragraph 40 is subordinate to facts found. Paragraph 41 is subordinate to facts found in a suggestion of an agreement to take over the Huntington Woods property. Reference to the allegations and the foreclosure petition are not necessary to the resolution of the dispute and do not constitute an explanation of how Respondent may have carried out his promise to take over responsibilities for the mortgage and the traded property which is the true issue. Likewise, paragraph 42 where it is acknowledged in that suit the agreement to assume the mortgage does not answer the issue of whether attempts were made to bring about that assumption. Paragraph 43 is subordinate to facts found. Paragraph 44 and its suggestion as to any intended action on the part of a mortgage insurer has not been proven by competent evidence. Paragraph 45 is subordinate to facts found. Paragraph 46 is subordinate to facts found. Paragraph 47 in the suggestion of activities by a salesperson of Collins and Associates has not been shown in terms of the affiliation with the Respondent's companies or with the Respondent in terms of the details of that affiliation sufficient to show that Respondent is culpable for any acts of his employees. Respondent through Ralco, Inc. had agreed to assume and pay for the existing mortgage on the traded property. Paragraph 48 is subordinate to facts found. Paragraph 49 is subordinate to facts found. Suggestion by counsel that Respondent's admission of 86 coincide with the fact finding in paragraph 50 is erroneous as is reference to page 11 in the transcript which speaks of the admissions. Paragraph 51 is subordinate to the facts found. Paragraph 52 is subordinate to the facts found with the exception that the Respondent was not shown to have been deceitful in saying that the mortgage had not been allowed for assumption in that no competent proof was offered as to the attitude of the lender concerning the assumption. Paragraph 53 is subordinate to the facts found. Paragraph 54 is correct in terms of the credit report on foreclosure, otherwise it is rejected as heresay. Paragraph 55 is inaccurate when it suggests that proof was made that Respondent did not take care of the assumption in the Larsen trade-in property. Paragraph 56 is subordinate to the facts found. Paragraph 57 constitutes legal argument. RESPONDENT'S FACTS 1-7. Paragraphs 1-7 are subordinate to facts found. The first sentence of Paragraph 8 is contrary to facts found. The remaining sentences within paragraph 8 are subordinate to facts found. Paragraph 9 is subordinate to facts found. In paragraph 10, Charles Middleton was not shown to have been the closing agent for Capital Abstract and Title, Inc. in the transactions which are at issue here. In paragraph 11, Respondent was responsible for applying for the mortgage assumptions but the proof was not made that he did not do so or that he did. Paragraph 12 is subordinate to the facts found. Paragraph 13 is subordinate to the facts found. Paragraph 14 is hearsay and may not form the basis of the fact finding. Paragraph 15 is hearsay and may not form the basis of the fact finding. Paragraph 16 is subordinate to the facts found. Paragraph 17 is subordinate to the facts found. Paragraph 18 is subordinate to the facts found. Paragraph 19 is subordinate to the fact found. Paragraph 20 is not accepted. Paragraph 21 is not accepted. Paragraph 22 is subordinate to the facts found. Paragraph 23 is not relevant. Paragraph 24 is the reputation of the Respondent is only relevant if culpability has been shown. It has not been. 25. Paragraph 25 is subordinate to facts found. Paragraph 26 is not accepted in terms of what position Chip Miller held and what capacity he was acting in when involved in the Hinson transaction as employee of Collins and Associates, or Tallahassee Properties or exactly what capacity. Paragraph 27 is subordinate to the facts found. Paragraph 28 is subordinate to the fact found. Paragraph 29 is heresay and not accepted. Paragraph 30 is contrary to the impression of the credit circumstance of Mr. Hinson. Whatever the current credit report may say, Mr. Hinson's credit had been hurt. Paragraph 31 is true. Paragraph 32 is subordinate to the facts found except for deprivation of credit. Paragraph 33 is not necessary to the resolution of dispute. Paragraph 34 is subordinate to facts found. Paragraph 35 is subordinate to facts found. Paragraph 36 is contrary to facts found. Paragraph 37 is contrary to facts found. Paragraph 38 is subordinate to facts found. Paragraph 39 is subordinate to facts found. Paragraph 40 is subordinate to facts found. Paragraph 41 is subordinate to facts found, except as to credit. Paragraph 42 is subordinate to facts found. Paragraph 43 is subordinate to facts found, except in its suggestion of what capacity Sissie Collins really served which is not established. Paragraph 44 is subordinate to facts found, except not proven that mortgage assumption tentatively approved. He did make representations as the mortgage grantee. Paragraph 46 is subordinate to the fact found. Paragraph 47 is subordinate to the facts found. Paragraph 48 is contrary to facts found. There is no paragraph 49. Paragraph 50 is subordinate to the facts found. Paragraph 51 is subordinate to the facts found, except as to credit. Paragraph 52 is subordinate to the facts found. 53.-55. Paragraphs 53-55 are subordinate to the facts found. Paragraph 56 is contrary to facts found. Paragraph 57 is subordinate. Paragraph 58 is not necessary to the resolution of the dispute. Paragraph 59 is subordinate to the facts found. 60.-62 Paragraphs 60-62 are subordinate to the facts found. 63.-64. Paragraphs 63-64 are subordinate to the facts found. Paragraph 65 is subordinate to facts found. Paragraph 66 is subordinate to the facts found. Paragraph 67 is subordinate to the facts found. Paragraph 68 is subordinate to the facts found. Paragraph 69 is subordinate to the facts found. Paragraph 70 is subordinate to the facts found. 71.-72. Paragraphs 71-72 are subordinate to the facts found. Paragraph 73 in the first sentence is subordinate to the facts found. The second sentence has to do with whether Andrew Jackson gave preliminary approval for the assumption of the mortgage on the traded property and is heresay not accepted. Paragraph 74 is not necessary to the resolution of the dispute. Paragraph 75 is subordinate to the facts found. 76.-77. Paragraphs 76 and 77 are accepted as true but are not needed. 78.-79. Paragraphs 78-79 are subordinate to the facts found. 80. In this instance and all that have discussed before, Respondent did make representations through the February 18, 1986 letters. 81-82. Paragraphs 81-82 are subordinate to facts found. 83. Paragraph 83 is subordinate to facts found. 84.-85. Paragraphs 84-85 are subordinate to facts found. Suggestion that the paragraph 86 relates back to initial paragraphs is acknowledged and accepted in the manner that has been described in the discussion at the paragraphs set forth in the proposed fact finding. Paragraph 87 is legal argument. COPIES FURNISHED: Darlene F. Keller, Executive Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 James H. Gillis, Esquire DPR-Division of Real Estate Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32817 William M. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Eaton, Davis, Marks, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Keith Kinderman, Esquire 906 Thomasville Road Tallahassee, Florida 32303 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399 2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. Final Order No. DCA10-GM-110 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies en furnished in the manner shown below to each of the persons listed below on this day of fii “4 , 2010. aula Ford, Agency Clerk Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Jerri A. Blair, Esq. City Attorney City of Wildwood Post Office Box 130 Tavares, FL 32778-3809 jblair710@aol.com Cecelia Bonifay, Esq. Akerman Senterfitt 420 S. Orange Avenue, Suite 1200 Orlando, FL 32801 cecelia.bonifay@akerman.com By Hand Delivery and electronic mail: David L. Jordan, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 david.jordan@dca.state.fl.us Linda Loomis Shelley, Esq. Fowler White Boggs Banker Post Office Box 11240 Tallahassee, FL 32302-3240 Ishelley@fowlerwhite.com By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060
Conclusions This. cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On June 22, 2009, the Department published its cumulative Notice of Intent to find the Hernando County comprehensive plan amendment adopted by Ordinance No. 2007-24 on December 12, 2007, and the remedial amendments adopted by Ordinance 2009-03 on May 12, 2009, in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, Part II, Florida Statutes (the “Act”). On July 15, 2009, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded Brooksville Quarry LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number FINAL ORDER No. DCA09-GM-289 09-3746GM. On August 3, 2009, a Notice of Hearing was entered for September 1 and 2, 2009. On August 10, 2009, Brooksville Quarry, LLC, filed a Notice of Voluntary Dismissal without Prejudice. There are no other Petitioners in this case, and the time has expired for filing petitions for hearing. Therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that “[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD. OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-289 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to, each of the persons listed below on this day of , 2009. Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Linda Loomis Shelley, Esquire Karen Brodeen, Esquire Jacob D. Varn, Esquire Fowler White Boggs PA PO Box 11240 Tallahassee, FL 32302 Geoffrey Kirk, Esquire Assistant County Attorney Hernando County 20 North Main Street, Suite 462 Brooksville, Florida 34601-2850 By Hand Delivery Lynette Norr Assistant General. Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100
The Issue Whether Centervillage Limited Partnership has demonstrated, by a preponderance of evidence, that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Procedure. On or about August 6, 1990, Centervillage filed an Application for Vested Rights Determination with the Tallahassee-Leon County Planning Department. (Application VR0027T) The following information concerning the development of the Centervillage property was contained on the Application: "Gerald E. Songy" is listed as the "owner/agent." Question 3 lists the name of the project as "Centervillage Limited Partnership." "Progress . . . Toward Completion" is described as:(1) planning, (2) site preparation, (3) Leon County environmental permits, (4) DER Dredge and Fill Permit, (5) DOT Drainage Connection Permit. Original P.U.D., Rezoning, Minor subdivision Approval and a stormwater agreement with Leon County, are included in Centervillage's application as forms of government approvals and as the actions of government relied on prior to committing funds toward completion of the proposed development. On September 10 and 17, 1990, hearings were held to consider the Application before the Staff Committee comprised of the City Attorney, the Director of Planning for the Tallahassee-Leon County Planning Commission and the Director of Growth Management for the City. By letter dated September 17, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Centervillage that the Application had been denied. By letter dated September 28, 1990, to Mr. Gumula, Centervillage appealed the decision to deny the Application. By letter dated October 10, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on November 26, 1990. The Property. Centervillage currently owns approximately 27.20 acres of property (the Property) located at the Northeast corner of Capital Circle, Northeast, and Centerville Road, Tallahassee, Florida (Application). Centervillage began assembling the Property, through various transactions, in the early 1980's. By October, 1984, Centervillage had acquired the bulk of the Property. (T-3 p. 23) Prior to Centervillage's initial acquisition of the Property, the prior owners of portions of the Property began development of the site as an industrial, mini-warehouse development. This prior development activity involved a series of violations of state and local environmental laws and regulations. (T-3 pp. 50-51, 59) As a result of improper development activities by the prior owners of the Property, fines were imposed and, at the time Centervillage made the initial purchase, the Property was subject to a Florida Department of Environmental Regulation (DER) consent order. (T-3 p. 26) Development Activity. The project that Centervillage proposes to develop is a shopping center containing 200,000 square feet of gross leasable space on approximately 18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is dedicated to stormwater facilities. (T-3 pp. 96-99) During the process of acquiring the 27.20 acres it currently owns, Centervillage began preparing the Property for future development by clearing and demolishing existing structures such as mobile homes, concrete driveways, and wells. (T-1 pp. 27-28) Permits were obtained early in the process to demolish these structures and in December 1984, the front corner of the Property was selectively cleared. (T-1 p. 28) In April, 1986, Leon County (the County) began construction of a ditch on a portion of the perimeter of the Property. The purpose of this ditch was to allow stormwater discharge from a Centerville Road construction project that the County was involved in. The County had been unable to locate an alternative site to provide any catchment and holding facility to handle the stormwater run off and, as a result, had encountered problems with the Florida Department of Environmental Regulation (DER). (T-3, pp. 70-71) At the same time, Centervillage was involved in attempting to resolve problems associated with improper development activity on the Property by its previous owners. These factors led to cooperative efforts on the part of both Centervillage and the County in dealing with the DER and to conceptual agreements between the Centervillage and the County regarding aspects of future development of the Property. Centervillage granted the County a temporary easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p. 52) The drainage ditch constructed on the site turned out to be a "long, skinny holding pond." (T-1 p. 29) The County constructed over 80 percent of the overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property subject to the temporary easement will be conveyed to the County pursuant to a formalized conceptual agreement between Centervillage and the County. (App. Ex. G, G-8) This agreement will be the subject of expanded discussion later in this Final Order. Construction of the majority of the current improvements on the Property began in June of 1989. The work consisted of: construction of a holding pond sized for commercial development; construction of some two and a half acres of wetlands; and construction of the perimeter ditch from the north end of the project to Centerville Road, then west along Centerville Road under Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the perimeter ditch to create wetlands. (T-1 p. 31) This development activity also involved the placing of 50,000 to 60,000 cubic yards of fill material on the site. (T-1 p. 30) In May and June of 1989, Centervillage acquired over six acres of adjoining property in order to construct a stormwater facility which it had agreed to provide as part of its conceptual agreements with the County and in partial mitigation against prior improper development on the Property. (App. Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27) The two and a half acres of new wetlands Centervillage constructed on the property was also in mitigation for prior improper development activity engaged in by previous owners of the Property. (T-1 p. 30) Further development has been permitted but not constructed. This work is to involve the construction of culverts, crossings, and onsite, upland filtration facilities. (T-1 pp. 31-32) As a result of the 1989 development activity, the northern 7.57 acres of the property has been excavated for the stormwater facility and some 18 acres of the Property have been filled from depths of two to six feet. (T-3 p. 97) Government Approvals. In July, 1984, the City approved Centervillage's request for a Planned Unit Development (P.U.D.) to allow the Property to be developed as a shopping center to be constructed in three phases. Each phase of construction was to involve 50,000 square feet of retail space. (App. Ex. G, G-1) In December, 1984, the City approved an amendment to the previously approved P.U.D., to add additional property and to expand the size of the development by the addition of approximately 20,000 square feet of retail space. (App. Ex. G, G-2) In January, 1988, Centervillage received rezoning approval from the P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G, G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the limited access to the Property and the reestablishment of the canopy road on portions of Centerville Road which abut the property. (App. Ex. G, G-3) In May, 1988, the City approved Centervillage's application for minor subdivision approval. This minor subdivision approval established one parcel as the previously developed mini-warehouse site to the east of the Property and the other parcel as the Property as it currently exists except for 2.79 acres on Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In October, 1988, the City granted a separate minor subdivision approval which addressed the additional 2.79 acres. (Minor subdivision approval, dated October 26, 1988, signed by Donny Brown, Development Coordinator for the City.) The parcel containing the mini-warehouse facility was sold in 1986, and is no longer part of the Property. (T-1 pp. 37-38) On July 22, 1988, the DER issued an environmental permit to Centervillage. (App. Ex. E, E-9) This permit was a result of extensive negotiations between DER and Centervillage and also involved the County because of the County's own permitting problems with the road improvement Project. (T-1 pp. 63-65) This DER permit specifies that the "permit does not convey any vested rights." (App. Ex. E, E-9, paragraph 3) On August 17, 1988, the County issued Environmental Management Permit #88-0299 to Centervillage. This permit was for "earth work only" and specified that "stormwater runoff [would] be required upon final development plans." (App. Ex. E, E-1) On October 25, 1988, the County accepted Centervillage's hydrological analysis on the Property. (App. Ex. E, E-3) On December 5, 1988, Centervillage received notification from the County that the project site was exempt from site plan review. (App. Ex. E, E- 9) Currently, there is not a city-approved site plan for the Centervillage project. (T-3 p. 115) On May 3, 1989, the County issued Environmental Permit #89-0230. This permit reflects approval of an additional of 630,000 square feet of impervious surface to the site. Centervillage's application for this permit also lists the proposed use of the Property as "M-1 mini-warehouses and CP shopping center." (App. Ex. E, E-5) Centervillage began its construction of the majority of current site improvements in June of 1989. (T-1 p. 30) In meetings between Centervillage and the City it was never confirmed that the approval of an additional 630,000 square feet of impervious surface on the site was a valid assumption. (T-3 p. 138) The County issued two additional environmental permits in 1989, one for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments. (App. Ex. E, E-7) In March, 1990, the County issued an additional environmental permit for tree removal. (App. Ex. E, E-8) In January and in June, 1990, the Florida Department of Transportation (DOT) issued two separate drainage connection permits to Centervillage. (App. Ex. E, E-10, E-11) Until October, 1990, the County performed the environmental regulatory services for both the County and the City. (T-3 p. 56) At the time the County issued the environmental permits described in this Final Order, there was no City of Tallahassee Environmental Ordinance. (T- 3 pp. 73-74) At the time the County issued the environmental permits described in this Final Order, the County Chief of Environmental Management regularly appeared before the Tallahassee City Commission as part of his duties in issuing environmental permits for property within the City. (T-3 p. 56) At the time the County environmental permits described in this Final Order were issued to Centervillage, the City would look to a County environmental permit before issuing a building permit. (T-3 p. 74) At the November 26, 1990, hearing in this case, the Chief of Environmental Management for the County testified that he knew of no specific resolution or ordinance that granted environmental permitting authority within city limits to the County. (T-3 pp. 74-75) However, the testimony at the November 26, 1990, hearing in this case establishes that the City relied on the County's environmental permitting in making its own permitting decisions. (T-3 pp. 56, 73-75) In practice and effect, the County was acting on behalf of the City in granting local environmental permits. (T-3 pp. 73-80) The County has never been delegated the authority to make land use decisions, such as subdivision approvals, for property within the City. (T-3 pp. 74-76) The rezoning of the Property from P.U.D. to CP Zoning, approved by the City in January, 1988, provided no specific approval of densities and intensities for development of the Centervillage project. (T-3 pp. 130-132) When Centervillage requested rezoning of the Property from P.U.D. in January, 1988, its managing general partner assumed that as part of the approved zoning change it received approval for the same density and intensity of development that existed under the P.U.D. (T-3 p. 125) The Conceptual Agreement. In early 1986, the County was in the process of attempting to widen and improve Centerville Road. (T-1 p. 28) During this construction by the County, the DER asserted jurisdiction over the road project and the construction was stalled because the County did not have adequate property on which to construct facilities for the storage and treatment of stormwater runoff generated by the road construction project. (T-3 pp. 70-71, 82-84) During the initial rezoning and permitting process, Centervillage was required to address the effects of prior improper development activity engaged in on a portion of the Property by previous owners. As a result of the prior improper development on the Property, Centervillage was required to mitigate against flooding problems and to facilitate revegetation of a denuded canopy road segment along Centerville Road. (T-3 p. 52) On April 11, 1986, James G. Parrish, Administrator for the County, presented Centervillage with a conceptual agreement whereby, among other things, Centervillage agreed to grant necessary easements to the County for the construction of a drainage ditch on the Property to accept and store stormwater runoff from the County's Centerville Road improvement project. (App. Ex. G, G- 6) During 1986, the County and Centervillage cooperated through a series of permitting contacts specific to the development of a shopping center, to establish a major regional water management facility, to provide water management for the Centerville Road project, and to engage in cooperative efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative permitting contacts included contacts with the DER. (T-3 p. 53) The conceptual agreement was finally formalized and adopted by the Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement, Centervillage obligated itself to acquire additional property, construct a stormwater management facility and to convey the completed facility to the County. (App. Ex. G, G-8) In the formalized conceptual agreement, the County agreed to fully cooperate in the efforts of Centervillage to obtain all permits necessary to complete all improvements in accordance with the DER permit issued to Centervillage in July, 1988. (App. Ex. G, G-8) The formalized conceptual agreement further provides that the County will not require any additional stormwater retention or detention above that required by the County environmental permit issued to Centervillage previously. (App. Ex. G, G-8) The agreement also provides that the County will allow Centervillage to develop the southwest portion of the Property, fronting Capital Circle Northeast and Centerville Road," to its fullest commercial potential, subject only to existing zoning ordinances, terms and conditions of the limited use site plan, approval of subsequent short-term applications for environmental management permits, and Leon County Environmental Permit number 88-0299." This portion of the agreement also provides that the property will no longer be "protected from development." (App. Ex. G, G-8, paragraph 8) Centervillage is obligated, pursuant to the agreement, to convey in excess of 7 acres of property and the drainage ditch area for no additional consideration. (T-3 pp. 85-86) Absent the agreement of Centervillage to provide stormwater drainage and retention on the Property and to convey that portion of the Property to the County, the County could not have completed the Centerville Road improvement project. (T-3 pp. 70-71) Centervillage's agreement to donate land to the County was tied to the DER permits issued to both Centervillage and the County. (T-1 p. 41) Centervillage's agreement to provide the 7.57 acre stormwater facility to the County was a required condition in connection with the issuance of the environmental management permit issued by the County. (T-3 p. 88) The City was privy to the conceptual agreement between Centervillage and the County from the development stages through to its final, formal approval by the County Commission in July 1989. The plans for the stormwater facility were discussed with and reviewed by the City, with the understanding that the city would accept and maintain the facilities. (T-3 pp. 86-87) During these discussion with City personnel, there was no indication given that the agreement included land use decisions. (T-3 pp. 90-91) The 7.57 acre stormwater facility serves more than the development area. The facility is a major component of the total drainage system for the City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility is not directly related to the Centervillage development proposal. (T-3 p. 90) Development Expenses. The cost of purchasing the original tract was $1,812,012.00. Centervillage has since sold a portion of the original tract for $738,282.00. Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C, C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to the conceptual agreement with the County. (T-3 pp. 123-126) Other than the $175,000.00 expended pursuant to the conceptual agreement, the balance of costs of purchase of land were not incurred in reliance on any act or omission of the City. Interest and property taxes paid by Centervillage were $1,279,753.30. (App. Ex. C, C-1) No significant portion of the costs attributed to interest and property taxes were incurred in reliance on any act or omission of the City. Centervillage incurred $543,624.50 in costs associated with site work, clearing, and landscaping on the Property. Significant portions of these costs were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were substantially incurred after Centervillage had engaged in extensive negotiations with state and local government entities and after permits were issued by the state DER and DOT as well as environmental permits issued by the County. At the time the County issued these permits it was, in practice and effect, acting on behalf of the City. These negotiations, agreements, permits and approvals are outlined in the Government Approvals portion of this Final Order. Centervillage has established that it expended well in excess of $400,000.00 on testing, inspection, soil investigation, engineer and survey fees, architectural fees, legal and title fees and general development expenses associated with the development of the Property. (App. Ex. C, C-1) Centervillage has proved that a significant portion of these "soft costs" were expanded during the period it engaged in extensive negotiations with and after Centervillage obtained permits and approvals from the various state and local government entities as outlined in the Government Approvals portion of this Final Order. Centervillage would not have made the large expenditure of funds, or made the commitment to convey significant portions of the property to the County pursuant to the Conceptual Agreement if it had not obtained the zoning approvals and environmental permits that were necessary to construct a community size shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp. 127-128) The evidence in this case establishes that Centervillage reasonably relied on the approvals and environmental permits it obtained from state and local governments, as well as on the conceptual agreement between Centervillage and the County in changing its position and in incurring substantial costs associated with the development of the Property. Current Status of the Development. Centervillage took a site that was a drainage way, added properties to it, accomplished an enormous amount of permitting and fill work to come up with a fairly level buildable site suitable for building anything allowed within the zoning and the Comprehensive Plan. (T-1 p. 18) The shopping center project has been pursued by Centervillage for the past several years. Centervillage has never proposed any alternative plans to the City or other governmental authorities in the history of its project. (T-3 pp. 57-60, 82; T-1 pp. 17-18) Environmental Management Permit #89-0230, issued on May 3, 1989, by the County, contemplated approval of the addition of 630,000 square feet of impervious surface to the Property. (App. Ex. E) Centervillage relied on this approval and incurred substantial costs in proceeding with the further development of the Property. At the hearing on November 26, 1990, Centervillage presented the testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr. Moore has been involved with the Centervillage project for seven years. (T-3 p. 95) Mr. Moore testified that he prepared a layout based on several planning concepts on engineering design and determined that 630,000 square feet of impervious surface allowed 200,000 square feet of gross leasable space and allowed the development of adequate parking with good internal circulation and sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107) Mr. Moore further testified that this square footage ratio is on average with design standards accepted in the engineering community. (T-3 p. 107) According to Mr. Moore's testimony, if Centervillage is required to meet consistency and concurrency requirements of the 2010 Comprehensive Plan, the shopping center development could be limited or delayed because the Property is located on a constrained roadway. (T-3 pp. 103-106) The DOT and the City have scheduled widening of Capital Circle, on which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However, based upon Mr. Moore's testimony, Centervillage has established that constrained roadway limitations could limit or delay the project under the 2010 Comprehensive Plan despite the current improvement schedule. According to Mr. Moore's testimony, under the 2010 Comprehensive Plan, the proximity of the Property to Centerville Road, a canopy road, could limit the development of a shopping center to 100,000 square feet of leasable space. (T-3 pp. 103-104) As of July 16, 1990, the date of adoption of the City of Tallahassee Vesting Ordinance, the stormwater facilities on the Property were not complete. Additional water treatment facilities must still be constructed for runoff from the site. (T-3 pp. 19-21) No roadways, water and sewer services or electrical services have been constructed on site. (T-3 p. 108)
Findings Of Fact The Respondent Marinatown Realty, Inc., is a corporate real estate broker, holding license number 0208680 and located at 3440 Marinatown Lane, Northwest, North Fort Myers, Florida. Marinatown Realty is a wholly owned subsidiary of Seago Group, Inc., a publicly held land development and rental corporation whose president is Thomas P. Hoolihan. In late 1977, Hoolihan met L. E. Hutchinson, the complainant in this case, through another broker for whom Hutchinson at the time was employed. In December, 1977, Hoolihan and Hutchinson discussed the marketing of two condominium projects being developed by Hoolihan and reached an oral agreement whereby Hutchinson would be paid $18,000 in salary with a 1 1/2 percent commission on all sales. When the condominium units were completed and mostly sold, the parties' employment agreement was revised in late December, 1979. Under the new agreement, Hutchinson was to receive $30,000 a year salary, commissions on the remaining condominium units that had not yet closed and any commissions on outside property listings neither owned nor controlled by Seago. In return for the $30,000 guarantee, Hutchinson was to forego commissions on future properties owned or controlled by Seago Group, Inc. During the period from 1977-1978 when Hutchinson was receiving $18,000 plus a 1 1/2 percent commission, sales were handled through Lee Hutchinson Realty, Inc., which held license number 0182945. In early 1979, Marinatown Realty was incorporated to market Seago's real estate inventory, to identify and list outside properties and to act as a management agent for purposes of renting condominium units previously sold in recent projects. When Marinatown Realty was formed, the complainant became its active broker. While employed as the broker for Marinatown and receiving $30,000 a year as a salaried employee, Hutchinson held two other broker's licenses, one as L. E. Hutchinson Realty, Inc., and another as L. E. Hutchinson. In January, 1980, Hoolihan agreed to pay a $15,000 bonus to Hutchinson in lieu of a salary increase. Since at that time sales were minimal, Hoolihan decided to pay the bonus in installments as sales occurred. Because Hutchinson left in May, 1980, he received only $10,000 of the bonus which represented moneys previously paid. On April 23, 1980, Hutchinson and Chuck Bundschu, a licensed real estate broker, negotiated and obtained a sales contract between Hancock Harbor Properties, Ltd., a wholly owned subsidiary of Seago Group, Inc., seller, and Frank Hoffer, buyer and licensed real estate broker, in which Hoffer offered to purchase approximately 3.16 acres of unimproved acreage for $500,000. Thomas P. Hoolihan, general partner of Hancock Harbor, executed the contract on behalf of the partnership. Prior to presenting the contract to Hoolihan, Bundschu, Hoffer and Hutchinson decided on a 30 percent, 40 percent 30 percent respective co- brokerage split on the $50,000 commission due on the sale of the Hancock Harbor Property. The co-brokerage fee split was typed on the bottom of the contract submitted to Hoolihan and was signed by the three brokers. The commission due to Hutchinson was made payable to L. E. Hutchinson Realty, Inc. On April 25, 1980, the contract with the original co-brokerage split was presented to Hoolihan who refused to agree to its co-brokerage split provision. In the presence of Hutchinson, Hoolihan informed Bundschu and Hoffer that he would not pay a commission to Hutchinson because he was a salaried employee of the Seago Group and not entitled to a commission on the sale of this property. Accordingly, the co-brokerage fee provision of the executed contract was never signed by the seller, Thomas P. Hoolihan. Instead, on April 25, 1980, Bundschu, Hoffer and Hoolihan agreed to a split of $20,000 to Hoffer and $15,000 to Bundschu in lieu of the split specified on the bottom of the contract. At the closing on July 18, 1980, which was held at Coastland Title Company, a closing statement was prepared which shows that real estate commissions were disbursed to Chuck Bundschu Realty, Inc. ($15,000), Marinatown Realty, Inc., ($15,000) and Hoffer's firm, Landco, Inc., ($20,000). The checks were written and disbursed following a conversation between an official of Coastland Title Company and Hoolihan in which Hoolihan informed the official that Hutchinson was a Seago employee and he would not agree to pay a $15,000 commission to him under such circumstances. On July 18, 1980, a check for $15,000 was issued by Coastland Title Company to Marinatown Realty, Inc. The $15,000 represented Hutchinson's share of the co-brokerage agreement. When received on July 18, 1980, by Billie Robinette, the broker for Marinatown Realty, the check was signed over by her to Seago Group, Inc., since in her opinion it did not represent commissions earned by Marinatown Realty. The oral agreement between Hutchinson and Hoolihan was to terminate at the end of April, 1980, or approximately five days after the Hoffer contract was presented. Hoolihan offered to renew the contract without a provision for a guaranteed salary because Marinatown Realty had been consistently losing money since its incorporation. On May 6, 1980, Hoolihan received a letter of resignation from Hutchinson and concluded that his offer had been rejected. In early May, 1980, Hoolihan received a call from Ms. Robinette, who had been employed as Hutchinson's secretary, regarding filling the open brokerage position at Marinatown Realty, Inc. Hoolihan discovered from Ms. Robinette that Hutchinson had paid himself 50 percent of the commissions due Marinatown Realty, Inc., for the management of condominium rentals. After examining the check stubs from Marinatown's bank account, Hoolihan took personal possession of all the books and records of the company and had the office locks changed. When he examined the books and records of the realty company, Hoolihan realized that his assumption that Hutchinson Realty, Inc., became inactive when Marinatown Realty, Inc. was formed in January, 1979, was erroneous and that Hutchinson had operated his own realty company, L. E. Hutchinson Realty, Inc., while employed by Marinatown Realty, Inc. Although he held multiple licenses, Hutchinson denied that a conflict ever existed between his duties to Marinatown Realty, Inc., and his own company, L. E. Hutchinson Realty, Inc. When questioned during the final hearing regarding how he decided where to list properties while he was the broker for both companies, the following exchange occurred between Hutchinson and counsel for Marinatown Realty, Inc.: Q Let me ask you, Mr. Hutchinson, how would it be decided when you were to go out and list property as to whether or not that property would be listed under Marinatown Realty or L. E. Hutchinson Realty, Inc.? Who would make that determination? A I would. Q Solely on your own? A I had no contract with anyone. I had nothing in writing to direct me where to place any business. Q So this would be solely your decision as to how you would list the property? Either Marinatown Realty or L. E. Hutchinson Realty? A If I secured the listing it was my dis- cretion as to where I listed the real estate. I had the choice of one of two companies. * * * Q If you were to list property in my hypo- thetical with Marinatown Realty, is it not a fact that they would receive, and being Marinatown Realty, would receive one half of the commission and you, as the broker, would receive the other half? A That was what I did. Q So it would certainly be beneficial to Seago to have you list as much property as you could with Marinatown Realty because they, in fact, owned the stock with Marinatown Realty, is that not true? A Yes, sir. Q When you would list property with L. E. Hutchinson Realty, Inc., would you do this with the full knowledge, consent and permission of Marinatown Realty, Inc.? A Yes, sir. Q How would you say that you gave full consent when you just testified that it was solely up to you as to how you would list property? A If I solely decided, I give my consent. I don't have anybody else to answer to. (T. pp. 108-110) During the period that Hutchinson was a broker for Marinatown Realty and L. E. Hutchinson Realty, Hutchinson believed his primary duty was toward his own company as illustrated by the following exchange between counsel for Respondent and the complainant: Q It's a fair statement to say that you, as a broker for Marinatown Realty, Inc. didn't make a whole lot of money for Marinatown Realty, did you? A I didn't run the P & L statement. Q I'm asking you as being the broker. You didn't make a lot of money for Marinatown Realty, Inc., did you? A I made as much money for them as I did for the responsibility. Q Well, did L. E. Hutchinson Realty, Inc. make a lot of money during that period of time? MR. FERNANDEZ: Objection as to relevancy, this whole line of questioning. MR. NEEL: Your Honor, it isn't. It's germaine. HEARING OFFICER: Objection overruled. THE WITNESS: I'm sorry, the question? Q Did L. E. Hutchinson Realty, Inc. make a lot of money during this period of time? A That's relative. Q In comparison to what money Marinatown Realty made? A Yes, sir, because L. E. Hutchinson Realty had a thirty thousand retainer that was coming in up until April 30th. Q From Seago? A Certainly. Q So L. E. Hutchinson Realty, Inc. made a lot more money than Marinatown Realty, Inc., didn't they? A That's the way its supposed to work. Q And, again, it was at your sole dis- cretion as to how you would list the properties; under which principal. A Yes, but I asked for a specific con- tract and never got it. (T. pp. 124-125) The Administrative Complaint in this case was filed on July 22, 1981. The preliminary investigative report compiled by Robert Corno, DPR Investigator, was filed on September 24, 1981 and the final investigative report was filed on September 30, 1981. The following is a synopsis of the investigator's findings and recommendation: That the COMPLAINANT [Hutchinson] worked for the SUBJECT [Hoolihan] and their contractual agreement was verbal. COMPLAINANT was paid on a salary/commission basis by companies of which SUBJECT is Chief Officer. That the COMPLAINANT filed civil action suit against SUBJECT in this case and it was dismissed with prejudice. That prior investigation by the DPR re- commended that no action be taken against the SUBJECT in this case. That two weeks after this investigation was undertaken, an Administrative Com- plaint was being filed by the DPR against the SUBJECT. That the existing BROKER for MARINATOWN REALTY, INC. was not involved in this case, and that since the time of the above referenced transaction, the SUBJECT has acquired his BROKER'S license #020462 which had no effect in this case. That conflicting statements by inter- viewers, namely former and present em- ployees and other agents involved in this case revealed that there is a reasonable doubt for probable cause against the SUBJECT. (Respondent's Exhibit 1) As noted by Investigator Corno, this was the second time Marinatown Realty had been investigated in relation to this case. In both instances a recommendation that no action be taken against the Respondent was apparently made. At the final hearing on December 1, 1981, counsel for the Department saw the complete investigative report, including the investigator's recommendation of a lack of probable cause, for the first time. Count II of the Administrative Complaint alleges that Hutchinson is entitled to compensation for services rendered on the following sales contracts: Seago Group, Inc. as seller, to Michael T. and Judith Marchiando as buyers, Seago Group, Inc. as seller, to John E. and Charlotte A. Ferguson as buyers, and Seago Group, Inc. as sellers, to Kenneth J. Dawson as buyer. In regard to the first transaction, the Marchiandos were personal friends of the son-in-law of Seago's major shareholder, Mr. R. Berti. Hutchinson's role in this transaction was limited to preparing the contract and mailing it to the Marchiandos for signature. Hutchinson had no part in selling this property and never met the Marchiandos. The sale of the Ferguson's arose in a manner similar to the Marchiandos. Mr. Ferguson is the manager of a Detroit company owned by Mr. Berti. Similarly, Mr. Dawson works for Mr. Berti in Detroit as an accountant. These sales were made by Mr. Berti and Hutchinson furnished administrative assistance by completing the contracts and sending them to these individuals for signature. Under the terms of the agreement between Hoolihan and Hutchinson, a commission was not due on these properties to Hutchinson since these were not outside listings and his agreement with Hoolihan did not contemplate that commissions be paid in such situations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Marinatown Realty, Inc. be dismissed. DONE and ORDERED this 28th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire NUCKOLLS JOHNSON & FERNANDEZ Suite 10, 2710 Cleveland Avenue Fort Myers, Florida 33901 James A. Neel, Esquire 3440 Marinatown Lane, N.W. Fort Myers, Florida 33903 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Community Affairs, enter a final order requiring the Respondent, Ridgewood Properties, Inc., to undergo DRI review as to Original Maitland Center but not as to the 1985 Acquisition Project. RECOMMENDED this 8th day of June, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 8th day of June, 1988.
Findings Of Fact This dispute involves the construction of a dock from the uplands into Lake-Walk-In-The-Water near Lake Wales, Florida. Lake-Walk-In-The-Water Heights Subdivison consists of a platted subdivision of lots along Lake-Walk-In-The-Water. In addition to those lots fronting on the lake, the plat includes 25 additional lots across the street (Chambers) which runs alongside the western edge of the lots fronting on the lake. To provide them access to the lake, those 25 lot owners received with the purchase of their lots an undivided l/25th ownership of Lot 35A, a 68.78 feet wide lot running from Chambers Street some 350 feet eastward to the lake. Rapley Armstrong owns two of the 25 lots above referred to. He is the pastor at Castle Heights Baptist Church in Tampa where his permanent residence is located. He vacations at his property near Lake-Walk-In-The-Water. Jack Hardin is a retired airline pilot who lives on or near Lake-Walk-In-The-Water. Hardin owns Lot 35 which abuts Lot 35A to the south, and, with his wife, one of the 25 lots on Chambers Street. The residence on Lot 35 is occupied by a tenant of Hardin's. Several years ago Hardin constructed a small dock near the intersection of Lots 35 and 35A which provided access to the lake. He subsequently removed this dock. Several of the lot owners of the 25 lots on the west side of Chambers Street conceived the idea of erecting a dock from Lot 35A into the lake to provide them access and ,elected Armstrong treasurer to collect money for the materials needed. Armstrong allowed the cost of the materials to be charged to his credit card and, as a community project, the dock was built in one day by some 8 or 10 men including Hardin's tenant of Lot 35. After the dock was completed, Armstrong started to call the owners of the 25 lots to obtain their contribution of $110 each for the cost of the materials used to construct the dock. His first call was to Hardin who became very angry because he had not been consulted before the dock was built. This conversation was sufficiently upsetting to Armstrong that he did not call any of the other lot owners. By letter dated July 30, 1985 (Exhibit 1), Hardin complained to the Department of Natural Resources that Armstrong had constructed a dock which crossed into the riparian line of Lot 35 and sent with his letter photographs of the dock (Exhibit 2) and a plat (Exhibit 3) with the dock drawn in free-hand. Following a preliminary investigation by J. Gordon Roberts, an investigator with DNR, the Department sent Exhibit 4 to Armstrong advising him that the dock encroached into the riparian line of Lot 35 and directing him to remove the dock. Armstrong then filed the Petition which initiated these proceedings. In January 1985, Respondent conducted a survey to locate the dock with respect to the riparian rights line of Lot This survey established the riparian rights line between Lots 35 and 35A and showed the dock to have been constructed within the riparian rights line of Lot 35A and within 25 feet of that line. This places the dock within the setback zone established by Rule 16Q-21.04(3)(d), Florida Administrative code. While the survey was being conducted, DNR personnel met with Hardin and the owners of the lots who erected the dock to try and work out a compromise. During these meetings, Armstrong agreed to allow Hardin to remove the dock if he so desired but contended he did not own the dock or the land from which the dock started towards the water. Armstrong, with the other owners, agreed to remove the T-portion of the dock that extended into the riparian rights line of Lot 35 and to place a railing along the south side of the dock to deter people from encroaching on Lot 35 from the dock. While the owners were performing this work, Hardin came to the site and demanded they cease doing any work on the dock as the dock had to be removed and relocated. At this juncture those owners not parties to this action apparently decided they would no longer cooperate with Hardin and refused to grant permission for Hardin or anyone else to remove their property. Absent the consent of the other owners, Petitioner is without authority to remove this dock. Lake-Walk-In-The-Water is a large shallow lake some 7 miles by 8 miles in area and is a meandered lake.
