Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint, and that his real estate salesman license be REVOKED. DONE and ORDERED this 27th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. COPIES FURNISHED: Susan J. Hartmann, Esquire P. O. Box 1900 Orlando, Florida 32802 Mr. Dennis R. Bell FCI, ECU-2 P. O. Box 2000 Lexington, Kentucky 40511 Salvatore Carpino, Esquire 130 N. Monroe St. Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson St. Orlando, Florida 32801
Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue In this disciplinary proceeding, the issues are, first, whether Respondent, a licensed real estate salesperson, intentionally concealed an offer to purchase her clients’ house and, second, whether Respondent engaged in a course of conduct so egregious that she cannot be trusted to deal with the public.
Findings Of Fact Material Adjudicative Facts The evidence adduced at hearing establishes the facts set forth in paragraphs 1 through 12 clearly and convincingly. The Parties Respondent Kathleen Marie Oros (“Oros”) is a licensed real estate salesperson subject to the regulatory jurisdiction of the Florida Real Estate Commission (“Commission”). Petitioner Department of Business and Professional Regulation, Division of Real Estate (“Department”), has jurisdiction over disciplinary proceedings for the Commission. At the Commission’s direction, the Department is authorized to prosecute administrative complaints against licensees within the Commission’s jurisdiction. The Leonard Transaction On or about July 22, 2000, Re/Max Consultants Realty (“Re/Max”), as the Listing Broker, entered into a Residential Listing Contract (“Listing Contract”) with Francis E. and Rita Leonard (“Sellers”) for the exclusive right to secure a purchaser for the Sellers’ house in Fort Lauderdale, Florida. Oros, who several years earlier had assisted the Sellers in purchasing the house they now intended to sell, procured the Listing Contract for Re/Max. She and her partner, David Comanic, were identified collectively in the Listing Contract as the “Listing Agent.” In early November 2000, a real estate salesperson named Jacqueline Federico (“Federico”) brought her client Doreen Moskowitz (“Moskowitz”) to the Sellers’ house, where they were shown around by Oros. Thereafter, on November 9, 2002, Moskowitz executed a written offer to purchase the property for $210,000, which Federico presented to Oros. Oros presented Moskowitz’s offer to the Sellers, who considered it too far below their asking price of $249,000 to accept. The Sellers authorized Oros to make a counteroffer of $245,000, which she did. Moskowitz rejected the counteroffer. Over the next couple of weeks, Moskowitz made two more offers to purchase the Sellers’ house, for $220,000 and $225,000, respectively, neither of which was in writing. Oros presented both of these verbal offers to the Sellers, who rejected each with a counteroffer of $245,000. Meanwhile, Oros had twice shown the Sellers’ property to Carol Kuehnle and Michael Cleary (“Buyers”), who were engaged to be married and wanted to purchase a home in the area. On November 22, 2002, the Buyers called Oros and asked to see the house again that day. Oros arranged for them to do so. After seeing the property with Oros on the afternoon of November 22, 2002, the Buyers signed a written offer to purchase the Sellers’ house for $235,000. The Buyers’ offer required the Sellers to accept the proposed terms by 5:00 p.m. that day or the offer would be withdrawn. Oros promptly brought the Buyers’ offer to the Sellers, who were at home. The Sellers timely accepted the offer and entered into a contract for sale with the Buyers. The transaction ultimately closed. A Previous Complaint In April 1996, the Department brought an Administrative Complaint against Comanic and Oros on the allegation that they had failed to present their client with an offer to purchase his property, which they were listing to sell. This matter was referred to DOAH, where it was docketed as Case No. 97-4937 (“DBPR v. Comanic”). On June 7, 1999, the parties signed a stipulation of settlement pursuant to which Comanic and Oros each agreed to pay a $500 fine plus $100 apiece in costs. The two also agreed to complete 45 hours of post-licensure education for real estate salespersons. Neither respondent admitted the Department’s allegations but rather entered into the stipulation “for the purpose of avoiding further administrative action by [the Department] with respect to [the matter].” The Commission entered a Final Order adopting the stipulation on August 18, 1999. Non-Essential, Explanatory Findings The greater weight of the evidence1 adduced at hearing establishes the facts set forth in paragraphs 13 through 15. On the morning of November 22, 2002, Federico called Oros and communicated another verbal offer from Moskowitz, this one to purchase the Sellers’ house for $230,000. As a result, before Oros showed the Buyers the house for the third time, which she would do a few hours later, Oros presented Moskowitz’s fourth offer to the Sellers. They turned it down, instructing Oros to repeat their previous counteroffer of $245,000. Oros called Federico and transmitted the Sellers’ counteroffer. Later that day, when she met the Sellers to present the Buyers’ offer, Oros turned off her cell phone so as not to be interrupted, as she customarily did at such times. Oros’s phone remained off throughout her entire meeting with the Sellers, until after they signed the contract. As she was preparing to leave the house, Oros switched her cell phone back on. The phone soon rang, but Oros did not answer it, explaining to the Sellers that the caller was Federico, and that she (Oros) would return the call from her car. Once she was in her car, Oros called Federico and let her know that the house had been sold. This news upset Federico. The Charges In Count I of its Administrative Complaint, the Department accused Oros of having committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust, in violation of Section 475.25(1)(b), Florida Statutes. The gravamen of Count I is the Department’s allegation that “[d]uring the meeting with . . . Sellers [on November 22, 2002,] [Oros] refused to respond to calls from [Federico].” The Department has charged Oros in Count II with a violation of Section 475.25(1)(o), Florida Statutes, which makes it a disciplinable offense either to be found guilty, for the second time, of misconduct warranting suspension or to be found guilty of a course of conduct so egregious that the licensee cannot be trusted to deal with the public. The Department is traveling under a “course of conduct” theory, arguing that the circumstances allegedly surrounding the Leonard transaction, coupled with the stipulated disposition of DBPR v. Comanic, demonstrate that Oros repeatedly has refused to convey offers, threatening “unimaginable” danger if not stopped. Ultimate Factual Determinations Having examined the entire record; weighed, interpreted, and judged the credibility of the evidence; drawn (or refused to draw) permissible factual inferences; resolved conflicting accounts of what occurred; and applied the applicable law to the facts, it is determined that: The evidence is not so compelling as to produce in the undersigned’s mind a firm belief or conviction, without hesitancy, that Oros intentionally concealed an offer from the Sellers or otherwise intentionally deceived, defrauded, or tricked any person interested in the subject transaction. Indeed, the undersigned is not even persuaded, by a preponderance of evidence, that Oros’s handling of this business transaction was merely negligent——a finding that would not, in any event, support a determination of guilt under Section 475.25(1)(b), Florida Statutes. Therefore, Oros is not guilty of the offense charged in Count I of the Administrative Complaint. Because Oros is not guilty of intentional wrongdoing in connection with the Leonard transaction as charged in Count I, she cannot be found guilty of a “course of conduct” in violation of Section 475.25(1)(o), Florida Statutes, for that offense requires a showing of misbehavior in more than one transaction. Further, the stipulated disposition of DBPR v. Comanic——assuming for argument’s sake that it constitutes competent evidence of the underlying allegations2——does not convince the undersigned that Oros truly committed the offense charged in that previous disciplinary proceeding, for two reasons. First, because of the settlement, the Department never proved the charge clearly and convincingly at a formal hearing; and, moreover, as the stipulation expressly states, Oros “neither admit[ted] nor den[ied] the factual allegations” that had been brought against her. Second, the undersigned, who was able personally to observe Oros’s credibility and demeanor as a witness at hearing, credits and believes Oros’s testimony that she did not refuse to convey an offer as charged in DBPR v. Comanic; in fact, she acceded to a light punishment only to avoid the much greater expense certain to be incurred in litigating that matter to conclusion. Therefore, Oros is not guilty of the offense charged in Count II of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Oros not guilty of the charges brought against her in the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2002.
Findings Of Fact Petitioner, Marcus J. Brown f11ed an application for the issuance of a Class "C" license on Apr11 8, 1982 with Respondent, Department of State, Division of Licensing. That license authorizes a licensee to Perform private investigative work. After reviewing the application, Respondent denied the same on June 26, 1982 on the ground Petitioner did not possess the requisite experience required by Subsection 493.306(4), Florida Statutes, The denial Precipitated the instant proceeding. Petitioner is a licensed real estate salesman, He supports himself through his activities as a real estate salesman and "Personal business activities." Between 1979 and Apr11, 1982, Petitioner performed investigative work on three cases involving real estate transactions. The work wad performed on a Part-time basis on behalf of two attorneys and a real estate broker in the Miami area. One of the cases is st11l pending. The work involved, inter alia, interviewing witnesses, researching corporate records, and securing documents for use at trial. Petitioner had a personal interest in the outcome of all three cases, and at least one involved an effort by him to secure an unpaid real estate commission due him. He has received no compensation for his services as an investigator to date. Petitioner has no college course work related to private investigation nor has he worked as a licensed intern.
Recommendation Based on the foregoing findings of fact and conclusions of law, it RECOMMENDED that the application of Marcus J., Brown for licensure as a private investigator be DENIED. DONE and ENTERED this 6th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 6th day of December,1982.
Findings Of Fact On November 2, 1977, Marin completed the application for registration as a real estate salesman and forwarded it to the FREC. The application was received December 27, 1977. The application contains the following question. 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned, or parolled? Marin answered the question with the word "No". However, the evidence shows that Marin was arrested December 31, 1974, with the crime of grand larceny which charge was reduced to petty larceny. It was Marin's understanding that his arrest record had been expunged by an attorney hired for that purpose when, in fact, it had not. It was for this reason that Marin answered the foregoing question in the negative.
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Evers Aurubin, is a licensed real estate salesperson in the State of Florida, having been issued license number 0650984. On February 24, 1997, Respondent filed an application (dated February 12, 1997) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent responded to the question by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On June 9, 1997, Respondent passed the salesperson examination and he was issued license number 0650984 as an inactive salesperson. From July 17, 1997, through the date of the hearing, Respondent has been an active salesperson associated with The Keyes Company, a broker corporation located at One Southeast Third Avenue, Miami, Florida. Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department discovered that Respondent had been involved in an incident that was not revealed on his application. According to the Certified Record Search (Petitioner's Exhibit 1), attested to by the Clerk of Courts, Dade County, Florida, their records revealed that Respondent was arrested on February 21, 1991, for "obstructing street," convicted on February 22, 1991, and sentenced to and credited with time served (overnight detention). No further record existed concerning the nature of the charge since, according to the clerk's certification "pursuant to Florida Rules of Criminal Procedure 2.075, Retention of Court Records, the requirement for retaining misdemeanor cases under this rule is 5 years, therefore the file is unavailable." Consequently, there is no record evidence of the specific provision of law Respondent was convicted of violating and, therefore, no showing that the offense was criminal and, if so, the degree of felony or misdemeanor. Upon discovery of such information, the Department apparently apprised Respondent of its discovery and requested an explanation. Respondent addressed the Department's concerns by letter of July 16, 1998, as follows: I,m writting (sic) this letter to explain the incident of my arrest and the reason I answer not to the question on my application for the real estate license. There in the Amocco (sic) Gas Station on 27th Avenue close to 135th St., I gas-up there a few time. On the night of 2-21-91 in my way home from work, I stop to gas-up while doing so I noticed a young lady at the stop sign, but previously I thought that I saw her inside the gas station. By curiosity I drove by to talk to her, I asked her how are you doing just to have a conversation with her. She approached and ask me do I have $20.00 I said I have $9.00 to my surprise she said can she go with me I laugh then she walk toward the back of the car. All the doors of the car were locked so I did not have any intention of letting her in. I put my head down to look for the stack (sic) shift because my car was not automatic so I can put it on first gear to go, when I raised my head I saw an unmarked car pull in front of me vertically at the same time two to three Police car pull-up behind me, they ordered me out and arrested me, they took me to the Police Station to take me to jail that,s there (sic) I find out she was an under cover cop or working for the Police. I ask one of the officer when will I get out he answer probably the next morning because this is a minor offense. In the morning they took me to the court house the officer there told us, those of us that are there for the first time it is better to plead guilty, if we plead no contest or any other way we will have to come back to the court spend more time since this is a very minor case, plead guilty and we will be out the same day. I was working did not have time to come back, so when the Judge called me and asked me how do I plea I said guilty then they let me out the next (sic) morning. The cause of the arrest remain unclear to me. Because I find out that they arrested me for mentioning money, but I did not enter to any agreement what so ever with the lady and I did not mention anything about sex. Since it was a very minor case practically nothing I never pay any attention to it, that,s why I answer no to the question on the applycation (sic). I regret the incident very deeply and I will not let it happen to me ever again. Thereafter, on October 21, 1998, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid incident on his application, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." (Count I), and that "Respondent has failed to disclose in his real estate license application the information required under Rule 61J2- 2.027(2), Fla. Admin. Code, and therefore, in violation of [Section] 475.25(1)(e), Fla. Stat." (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . [T]he penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 1 Consistent with the explanation he offered the Department in his letter of July 16, 1998, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his understanding of the significance of the charge. According to Respondent, who was not represented in the matter, it was his understanding that the charge ("obstructing street") was a non-criminal matter; that he was unfamiliar with the process, as well as scared; that he pled guilty to the charge so he would not have to return; and thereafter was released with credit for time served (an evening of incarceration). There was no other penalty imposed for the incident (no fine or probation), and Respondent has never been charged with any other offense. Here, Respondent's explanation for his failure to disclose the information regarding his arrest and conviction is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive those who would be reviewing his application. In so concluding, it is observed that Respondent's testimony was candid, the nature of the incident was not shown to be significant, and Respondent's understanding of the matter as non-criminal was, given the nature of the charge and Respondent's lack of experience with the judicial system, reasonable. Moreover, as heretofore noted, the court record fails to disclose, and the Department offered no proof to demonstrate, the provision of law violated or its significance.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1999.
The Issue The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.
Findings Of Fact At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can." Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December 14 closing. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000. ENTERED this 23 day of May, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Attorney Raymond O. Bodiford P.O. Box 1748 Orlando, FL 32802 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
