The Issue This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Florida Vantage Properties, Inc. and Richard Stewart Grimes, alleging that the Respondents were guilty of violation of Section 475.42(1)(j), Florida Statutes, by having placed or caused to be placed upon the public records of Palm Beach County, a written document which purports to effect the title of, or encumber, real property; and the recording of which was not duly authorizod by the owner of the property and for the purpose of collecting or coercing the money to the Respondents. The Florida Real Estate Commission introduced evidence that the Respondent Grimes, in behalf of the Respondent Florida Vantage Properties, Inc., (hereafter Vantage) filed an affidavit with an attached letter of agreement, which was Introduced and received into evidence as Exhibit 2, in the public records of Palm Beach County. The Florida Real Estate Commission introduced other evidence that Grimes caused those documents to be placed upon public records of Palm Beach County without the authority of the owner of the property which was the subject of the documents and for the purpose of collecting or coercing the payment of money to the Respondents. The Respondents introduced evidence concerning the documents which had been placed on the public records of Palm Beach, County concerning their original execution, purpose, and circumstances surrounding their having been placed upon the public records. Based upon the evidence presented, the issue of fact presented in this case is whether the affidavit and letter of agreement (Exhibit 2) purports to effect the title of or encumber the subject real property?
Findings Of Fact Richard Stewart Grimes and Florida Vantage Properties, Inc. are registered real estate brokers holding registrations issued by the Florida Real Estate Commission. Grimes, together with his two co-owners, sold C.W. Collins Corporation, hereafter Collins Corp., the following real property pursuant to a deposit receipt contract executed on August 20, 1973 and identified and introduced into evidence as Exhibit 4. Lot 6, Block 2, & Lots 5, 9, & 11, Block 5, Carriage Hill, as recorded in Plat Book 30, Pages 67 & 68 of the Public Records of Palm Beach County. The deposit receipt contract (Exhibit 4) was the product of negotiations entered into between Collins Corp. and Grimes and his co-owners. These negotiations had resulted in the execution of a deposit receipt contract identified and received into evidence as Exhibit 6. This deposit receipt contract addressed the proposed purchase of six lots to include the four lots eventually sold pursuant to the deposit receipt contract (Exhibit 4). Also introduced and received into evidence was a letter of agreement covering the property described in the deposit receipt contract (Exhibit 6). This letter of agreement is the same in all respects as the latter of agreement in Exhibit 2 with the exception that it addressed the two additional lots which, were the subject of the deposit receipt contract (Exhibit 6). The evidence introduced, to include the exhibits referended above, show that a portion of the consideration for the sale of the property to Collins Corp. was the letter of agreement (Exhibit 2) which contained an exclusive right of sale for Vantage and a deferred payment agreement under which Collins Corp agreed to Pay Vantage $1,000 on each lot sold by Collins Corp. Both Grimes and Collins agreed that the exclusive right of sale had been terminated prior to the date Exhibit 2 was filed in the public records of Palm Beach County, November 6, 1975. However, Collins Corp. could not unilaterally terminate the deferred payment agreement expressed in the last sentence of the letter of agreement as follows: C. W. COLLINS CORP. may also sell the property themself (sic) and will then pay only a $1,000.00 fee to FLORIDA VANTAGE PROPERTIES, INC. on each lot or house and lot package at time of closing. Grimes, as chief officer of Vantage, consulted legal counsel when Collins Corp. failed to pay $1,000 to Vantage when the corporation sold the first lot. Grimes authorized counsel to take action to obtain payment of the monies due Vantage from Collins Corp. As a result, Grimes executed the affidavit of October 7, 1975 (Exhibit 2) and caused this to be placed on the public records of Palm Beach County by counsel for Vantage and Grimes. Neither the affidavit nor the letter of agreement assert any interest in the subject property and the filing in no way constituted a notice of lis pendens.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action on the complaint against Florida Vantage Properties, Inc. or Richard Stewart Crimes. DONE AND ORDERED this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX The Respondent timely filed Proposed Findings of Fact (PFF) in this cause, which were considered by the Hearing Officer as follows: Paragraphs 1 and 2 of PFF are incorporated in paragraph 1 of the Recommended Order (RD). Paragraphs 3 and 4 of PFF are incorporated in paragraph 2 of the RD. Paragraph 5 of PFF is incorporated in paragraph 3 of the RD. Paragraphs 6, 7, 8 & 10 of PFF are incorporated in paragraph 4 of the RD. Paragraphs 9, 11, 12,13 and 14 are not material to consideration of the issue presented. Paragraph 15 is consistent with the ultimate conclusion of law reached in the RD. COPIES FURNISHED: John Huskins, Esquire Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Arthur C. Koske, Esquire Post Office Box 478 299 West Camino Gardens Blvd. Boca Raton, Florida 33432 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION CD 14999 Petitioner, PROGRESS DOCKET vs. NO. 3283 FLORIDA VANTAGE PROPERTIES, INC. and RICHARD STEWART GRIMES DOAH NO. 78-696 Respondents. PALM BEACH COUNTY /
The Issue Respondents are charged with misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes; failure to account or deliver funds in violation of Section 475.25(1)(d), Florida Statutes; and failure to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement is properly authorized, in violation of Section 475.25(1)(k), Florida Statutes, as more specifically set out in the following Conclusions of Law.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints, pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. At all times material, Respondent Mary Lawhon was a licensed Florida real estate broker, issued license numbers 607847 and 3028674 in accordance with Chapter 475, Florida Statutes. Respondent Shell Point Realty, Inc., is, and at all times material was, a corporation registered as a Florida real estate broker having been issued license number 1005003 in accordance with Chapter 475, Florida Statutes. At all times material, Respondent Mary Lawhon was licensed and operating as qualifying broker and officer of Respondent Shell Point Realty, Inc. Neither Respondent has previously been prosecuted for license violations, although an Agency investigator's administrative fine of $100.00 for a minor technical violation was imposed several years ago. Between 1996 and 2002, Respondents were paid real estate commissions for the purchase or sale of several Wakulla County properties by Gerd Petrik, or his business, Stone Real Estate Holdings, Inc. For each of these transactions, there was a contract, whereby Respondents' real estate brokerage commission was based on the price of each property as disclosed before sale in the written listing agreement with the seller(s). Mr. Petrik is a foreign national residing in the United States on an investment visa. He lives in Sarasota, Florida. He "owns" several corporations,2/ and, through them, he owns at least 40 properties in the Panhandle of Florida, including a golf course and six rental houses in Wakulla County. One of these rental houses is located at 111 Razorback Road in Crawfordville. Mr. Petrik, or a corporation in which he is majority stockholder, owner-financed, by mortgage, one of the buildings from which Ms. Lawhon conducts Shell Point Realty, Inc.'s business. As an outgrowth of their real estate sales transactions, Mr. Petrik came to respect and value Ms. Lawhon's real estate skills and business acumen. He also appreciated her position and prestige in the community as the former Wakulla County Administrator. Until the incidents giving rise to this case occurred, Mr. Petrik found Ms. Lawhon to be professional and competent in real estate matters and honest and truthful. Mr. Petrik admits that he has lost no money as a result of the incidents giving rise to this license disciplinary proceeding. There has never been a written contract imposing any duty on Respondents to Mr. Petrik with regard to his six rental houses in Wakulla County, or with regard to the 111 Razorback Road property in particular. Having reconciled the witnesses' respective testimonies to the degree possible, and having assessed their respective versions upon credibility factors, it is found that Respondents were never retained or expected by Mr. Petrik to rent, lease, or manage any of his six rental houses in Wakulla County, including the 111 Razorback Road property. Respondents also did not advertise any rental properties, solicit any renters, put up any "for rent" signs, or charge any real estate or management fees to Mr. Petrik or his businesses in connection with the rentals of Mr. Petrik's properties. However, with an eye to promoting further profitable real estate sales dealings with Mr. Petrik, Ms. Lawhon gratuitously facilitated Mr. Petrik's renting his Wakulla County houses. To this end, she regularly communicated by telephone and fax with Mr. Petrik's business manager, Wendy Freed, concerning showing the properties, rent to be charged, and creation or signing of leases. At all times material, Wendy Freed worked in Mr. Petrik's office in Sarasota, as business manager for Stone Management Inc., one of Mr. Petrik's corporations. Stone Management, Inc., owns Stone Real Estate Holdings, Inc. Ms. Freed believed that Stone Real Estate Holdings, Inc., owned 111 Razorback Road, Crawfordville. Apparently no one involved in this case knew that in October 2001, 111 Razorback Road was owned by Newhouse, Inc.3/ The evidence is not clear who or what entity owned the property in March 2002. Regardless of which entity actually owned any of the rental houses, Ms. Freed, Ms. Lawhon, and Mr. Petrik all believed Ms. Freed had Mr. Petrik's complete authority to handle the rentals and to manage everything in connection with the six Wakulla County rental houses, including 111 Razorback Road. Ms. Freed possesses no real estate or other professional licenses. Her entire training for management or leasing of real estate has been "on the job" training with Mr. Petrik. As of October 2001, she possessed only about a year and a half of such training. She keeps track of multiple rentals and other property management factors without any modern property management software. She uses only an Excel spreadsheet. Despite Ms. Freed's testimony to the contrary, it is found that Ms. Lawhon is credible that Ms. Lawhon only collected rent money for Mr. Petrik, or for any of Mr. Petrik's businesses, upon Ms. Freed's specific request, until the incidents giving rise to this case; that all leases for Mr. Petrik's rental properties were usually prepared by Ms. Freed, although on occasion, Ms. Lawhon had prepared a lease for Ms. Freed to use, based on the Tallahassee Board of Realtors' Standard Form; and that usually, after one of Mr. Petrik's houses had been leased, Ms. Freed dealt directly with the lessee, unless she dealt with the lessee through Mr. or Mrs. Alward. At all times material, Kay Alward and Chris Alward, husband and wife, were employed by Mr. Petrik. They were not sure whether they were paid through Stone Management, Stone Real Estate Holdings, Inc., or Stone Management Enterprises. Mrs. Alward had been Mr. Petrik's housekeeper, and Mr. Alward had been his gardener, in Sarasota. Mr. Alward had also personally invested in Wakulla County real estate. For awhile, the Alwards assisted Ms. Freed in managing Mr. Petrik's properties in Wakulla County, by traveling to and from Wakulla County. Ultimately, they moved to Wakulla County to live and manage his properties. During the material period of time, they employed a man named "Greg" to steam clean decks, fix toilets, and be a general handyman for Mr. Petrick's Wakulla County rental properties. Before returning to Sarasota on one occasion, Mr. Alward left with Ms. Lawhon a key for 111 Razorback Road. She understood from him that workmen might need the key to get into the house for repairs and cleaning. Sometime thereafter, on or about October 12, 2001, Lorra Shepard, a local Certified Public Accountant, walked into Respondents' real estate office, because a friend of hers worked there, and asked if they had any rentals. She was shown the 111 Razorback Road property. She asked Ms. Lawhon if she could rent it, and Ms. Lawhon told her the lessor wanted $675.00 per month. Ms. Shepard asked if they could come down on the price. Ms. Lawhon testified that she telephoned Ms. Freed on October 12, 2001, and asked Ms. Freed to lower the rent for Ms. Shepard; that Ms. Freed agreed to lower the rent to $635.00 per month and agreed to draw the lease; that she, Ms. Lawhon, relayed this information to Ms. Shepard; that Ms. Shepard agreed to rent the house at that price; and that Ms. Lawhon then telephoned Ms. Freed again with this information and finally faxed written information about Ms. Shepard to Ms. Freed, so that Ms. Freed could draft the lease and collect subsequent rents. This testimony is credible.4/ Ms. Lawhon and Ms. Shepard concur that Ms. Shepard moved into 111 Razorback Road on October 15, 2001, and that day, Ms. Lawhon accepted a $450.00 cash deposit from Ms. Shepard and provided Ms. Shepard with a signed receipt, setting out the monthly rent of $635.00 per month, and signing the receipt with Ms. Lawhon's own name. Ms. Shepard is clear that at no time did Ms. Lawhon tell her 111 Razorback Road was Ms. Lawhon's house or suggest that Ms. Shepard hide her occupancy. Rather, Ms. Shepard confirms Ms. Lawhon's testimony that Ms. Lawhon told her that the lessor would be sending a lease and that the lessor was Mr. Petrik. Ms. Shepard's testimony also suggests that in October 2001, she thought Ms. Lawhon was saying that Ms. Lawhon would deliver the lease and that when Ms. Shepard signed the lease, she and Ms. Lawhon, together, would work out whether rent would be paid on the 15th or 31st of each month. Even if it were credible that Ms. Freed had told Ms. Lawhon to retain the $450.00 cash deposit, and this portion of Ms. Lawhon's testimony does not ring entirely true, there is no evidence that Ms. Lawhon timely placed the $450.00 cash in an escrow or trust account. It also was not remitted directly to Mr. Petrik or Ms. Freed in October 2001. On the other hand, there is no evidence that it was deposited into any account in Respondents' name(s). It is unclear from Ms. Lawhon's hearing testimony what, exactly, happened to the $450.00 cash deposit, but she admitted to the Agency investigator in June 2002 that she had put it in a file and forgotten about it, and this explanation is accepted. At no time material did Ms. Freed or Ms. Lawhon prepare a lease for 111 Razorback Road. At no time material did either of them send or deliver a lease to Ms. Shepard. Ms. Shepard testified credibly that several times between October 2001 and March 2002, Ms. Lawhon told Ms. Shepard that she, Ms. Lawhon, still had no lease and would call the lessor again. Ms. Lawhon did not address this aspect of Ms. Shepard's testimony in her own testimony. Ms. Lawhon testified that she thought Ms. Freed would deal directly with Ms. Shepard about all aspects of the lease and collecting rent. She also admitted that she had never discussed 111 Razorback Road with Ms. Freed in any of their frequent telephone conversations between October 15, 2001 and March 2002. Upon this evidence and Finding of Fact 24, it is found, contrary to Ms. Lawhon's hearing testimony, that Ms. Lawhon was, in fact, expecting to receive a lease from Ms. Freed and planned to then deliver that lease to Ms. Shepard for execution, but Ms. Lawhon never followed up on Ms. Shepard's request for a lease. Having no lease to guide her, Ms. Shepard did not make out checks for rent in thirty-day increments, beginning in October or November 2001. Instead, she contemporaneously made out a check dated December 21, 2001, for $1,905.00, to "Petrick" for the rent. She contemporaneously made out a check dated December 26, 2001, for $317.50, to "Petrick" for the rent. She contemporaneously made out a check dated February 7, 2002, for $952.00, to "Petrick" for the rent. She expected Ms. Lawhon to pick up these checks, but no one picked them up. Accordingly, Ms. Shepard just left these three checks, totaling $3,174.50, in her office desk drawer and went about her business until March 26, 2002. Mrs. Alward ran some advertisements for Mr. Petrik's rental houses in December 2001. Ms. Lawhon testified that she told Mrs. Alward in December 2001 not to advertise 111 Razorback Road because it was rented. Mrs. Alward was not asked to confirm or deny that conversation occurred, and Mrs. Alward's testimony at hearing does not specifically rule out that she advertised 111 Razorback Road. However, Mr. Alward's deposition and the testimony of Mr. Weltman reveal that in January 2002, the Alwards were managing all rental arrangements by referral to Ms. Freed. In January or February 2002, a maintenance person steam-cleaned the deck at 111 Razorback Road. The maintenance person was never seen by Ms. Shepard, but the maintenance person clearly knew someone was occupying the house because s/he left a note for Ms. Shepard to confine her dogs so the steam cleaning could be done the next day. Ms. Shepard assumed the steam cleaning was done at Ms. Lawhon's direction, but she did not contact Ms. Lawhon about it. Ms. Lawhon did not arrange this service and knew nothing about it. Based on the testimony of Ms. Freed, Mr. and Mrs. Alward, and Mr. Weltman, it is probable "Greg" did this steam cleaning at the Alwards' direction, but Ms. Freed takes no responsibility for it. Upon Findings of Fact 28-29, it is only reasonable to assume that the Alwards had notice that 111 Razorback Road was rented and occupied as of December 2001-January 2002, and their knowledge as of those dates can be imputed to Ms. Freed. On March 26, 2002, Ms. Shepard personally delivered to Ms. Lawhon the three rent checks she had previously written to "Petrick," on December 21, 2001, December 26, 2001, and February 7, 2002, totaling $3,174.50.5/ Ms. Shepard then returned to her office, and on March 29, 2002, she delivered to Ms. Lawhon a last check for $317.50, dated March 26, 2002, and payable to "Stone Real Estate Holdings." The undisputed evidence reveals that on March 29, 2002, Ms. Lawhon signed the first three checks as "Petrik" and deposited them under the stamped endorsement of "Shell Point Realty," into Shell Point Realty, Inc.'s, operating account. She did not deposit them into an escrow account for Mr. Petrik or into Respondents' trust account. The March 29, 2002, deposit complied with Agency rules, in that it was made "immediately" (within three business days or less) of Respondents' receipt of the funds. It did not comply with Agency rules in that it was not deposited in a trust, escrow, or other specifically designated account for Mr. Petrik's benefit. Mr. Petrik and Ms. Freed maintain that Ms. Lawhon was not authorized to endorse the checks with Mr. Petrik's name. The average daily balance of Respondents' operating account at the time Ms. Lawhon deposited Ms. Shepard's first three rent checks was over $54,000.00. There appears to be no financial motivation for Respondents to play fast and loose with the relatively minor amounts of money involved in this case. At hearing, Ms. Lawhon had several explanations for her handling Ms. Shepard's first three checks as she did: that she thought she had received permission for this procedure in a phone conversation with Ms. Freed on March 26, 2002; that Mr. Petrik had allowed herself or Mr. Alward to sign closing and disclosure documents (but not negotiable instruments or checks) for him in the past, as a matter of convenience; and that she was afraid because Ms. Shepard's checks were stale and incorrectly made out (to "Petrick" instead of "Petrik," and not to "Stone Real Estate Holdings"), they also might not be any good. She testified that her thinking was that she should run Ms. Shepard's local checks through her own local bank to be sure they were valid. She maintained that she had intended to run the checks through Respondents' trust account but deposited them into the wrong account by accident. Although Respondents' telephone records show communication with Ms. Freed's telephone on March 26, 2002, it is noted that Ms. Lawhon's explanation that she had received permission from Ms. Freed that day was never put forth prior to her testimony at the disputed-fact hearing. (See Findings of Fact 44-45 and 51-52.) March 29, 2002, was a Friday. On Monday, April 1, 2002, Ms. Lawhon telephoned her bank and verified that Ms. Shepard's three checks had cleared. That same day, Ms. Lawhon used an overnight delivery service to send Ms. Freed Shell Point Realty, Inc.'s, check for $2,355.00, made out to "Stone Real Estate Holdings." The April 1, 2002, Shell Point Realty, Inc., check specified, on its memo line, that it covered "$635/mo. Jan. 02-April 15 + 450 dep." This amount would have been correct at $635 per month for only three months' rent (January-March 2002) plus a $450.00 deposit. However, it was the wrong amount, considering the 75-day period of October 15, 2001 to January 1, 2002. This check also was $819.50 short of the total amount of Ms. Shepard's first three checks, which Ms. Lawhon had received and negotiated in the names of Petrik/Shell Point Realty, Inc. Ms. Lawhon's testimony did not address when she sent Ms. Shepard's March 26, 2002, check for $317.50, which had been correctly made out to "Stone Real Estate Holdings," to Ms. Freed. Ms. Freed believed she had received this check a week after the April 1, 2002, mailing. However, because this fourth check, received by Ms. Lawhon on March 29, 2002, is also referenced on the memo line of the April 1, 2002, Shell Point Realty, Inc., check, it may be inferred that Ms. Shepard's last check also was sent to Ms. Freed in Ms. Lawhon's April 1, 2002, overnight package. Ms. Lawhon was overwrought on April 1, 2002. She had received a telephone call to come to Louisiana to care for her grandchildren because her daughter-in-law was terminally ill. The last thing she did before leaving Crawfordville, Florida, on that date was to calculate the rents, make out the Shell Point Realty, Inc., check, and send the two checks by overnight delivery to Ms. Freed. Except for returning for less than 24 hours covering part of the following Saturday and Sunday, April 6-7, 2002, to play piano in her church on Sunday, Ms. Lawhon did not return to Florida until Friday, April 12, 2002. April 12, 2002, was Ms. Lawhon's first day in the Shell Point Realty, Inc., office since April 1, 2002. That afternoon, she received a phone call from Mr. Petrik's attorney. She told him her reasons for signing Ms. Shepard's three stale checks as "Petrik" and depositing them. He said he did not think that Ms. Freed had received the whole amount owed by Ms. Shepard. Ms. Lawhon asked him to give her until Monday to recalculate and figure out what had happened. On Monday, April 14, 2002, Ms. Lawhon telephoned Mr. Petrik's attorney and admitted that she had miscalculated the rental amounts collected on March 26-29, 2002, and that she would be sending Mr. Petrik the balance owed. At the attorney's suggestion, she wrote a letter of apology to Mr. Petrik. Ms. Lawhon's April 15, 2002, letter to Mr. Petrik reads, in pertinent part: I hardly know where to begin except to say to you 'I offer my most humble apology concerning the checks from Lorra Shepard.' . . . Since the checks were so old, I signed the back and deposited three of them to make sure they would clear the bank. There was no intention to mislead any one [sic] or to take the money. I had sent the completed lease without her signature and the deposit to your office in December. I assumed you received the lease and would follow through with notification to Ms. Shepard about payment and signature of lease. Your office apparently did not receive my letter and I failed to follow up until I got a call from Wendy a few weeks ago telling me that your office had not received any rent payments. Since the checks were so old and I had signed closing papers, applications for permits, etc. for you in the past, I signed the checks and deposited them in the Shell Point Realty account. On the date that I found out that they had cleared, I ran by the office on my way out of town to write out the check to Stone Real Estate Holdings and figured the wrong amount. Enclosed is check # 3459 for the balance of the rent and Check # 3463 for the deposit . . . . (Emphasis supplied) The emphasized portions of her letter, concerning transmittal to Ms. Freed of the $450.00 deposit, contradict each other, and the information in Ms. Lawhon's letter about her sending a blank lease to Ms. Freed in Sarasota in October 2001, is contrary to Ms. Lawhon's testimony at the disputed-fact hearing and contrary to part of Ms. Freed's deposition testimony. It is further noted that Ms. Lawhon did not mention in this April 15, 2002, letter to Mr. Petrik that she had received permission from Ms. Freed in March 2002 to endorse and deposit the first three checks. It is undisputed that Ms. Lawhon mailed to Ms. Freed a Shell Point Realty, Inc., operating account check for $820.00, dated April 14, 2002, made out to "Stone Real Estate Holdings." This was intended to make up the difference as calculated from Ms. Shepard's first three checks. (See Finding of Fact 38.) It also is undisputed that on April 15, 2002, Ms. Lawhon mailed to Ms. Freed a Shell Point Realty, Inc., operating account check for $450.00, of the same date, made out to "Stone Real Estate Holdings." Apparently, this reflected the amount of the cash deposit Ms. Shepard had given Ms. Lawhon on October 15, 2001. Ms. Lawhon's explanation at the disputed-fact hearing for sending two checks on April 15, 2002, was that she had miscalculated again. With the last check, Respondents satisfied all of what was owed to Mr. Petrik and cleared any discrepancies in their professional accounts within 30 days, as required by Agency Rule. The Agency's June 2002 audit of Respondents' accounts for the material period of time found them to be substantially in compliance with all regulations and general bookkeeping standards for real estate personnel. Ms. Lawhon did not represent to the Agency investigator in June 2002 that she had been given permission by Ms. Freed on March 26, 2002, to sign three of Ms. Shepard's checks with Mr. Petrik's name, but otherwise, her admissions to the investigator are consistent with her explanation at the disputed-fact hearing that Mr. Petrik had allowed people to sign documents (not negotiable instruments or checks) for him in the past as a matter of convenience, and that she was afraid because Ms. Shepard's three checks were stale and incorrectly made out, they also might not be any good. (See Finding of Fact 36.) Telephone bills show there was communication between Respondents and Ms. Freed on March 26, 2002. However, due to what appears to be Ms. Lawhon's recent fabrication that she received oral permission from Ms. Freed on March 26, 2002, to endorse Mr. Petrik's name on Ms. Shepard's first three checks, the portion of her testimony claiming that Ms. Freed gave her permission to endorse those checks in Mr. Petrik's name is not credible. Ms. Lawhon's April 15, 2002, letter (see Finding of Fact 44) constitutes an admission, as well as a statement inconsistent with her testimony at the disputed-fact hearing, in that her letter stated that she did not realize that she had "failed to follow up" concerning the 111 Razorback Road rental until she received a phone call from Ms. Freed. It is significant that Ms. Lawhon's letter states Ms. Freed called Ms. Lawhon first. There is no direct evidence as to why Ms. Shepard chose March 26, 2002, to deliver her three stale checks to Ms. Lawhon or why she made the last check payable to "Stone Real Estate Holdings," the Petrik corporation with which Respondents had an on-going commission sales relationship, but it may be inferred therefrom that it was on March 26, 2002, that Ms. Freed inquired of Ms. Lawhon why she was not receiving rental checks and why she had no lease if the 111 Razorback Road property were occupied. Ms. Freed testified that Respondents failed to remit any of Mr. Petrik's funds due until Ms. Freed first contacted Ms. Lawhon and requested the rent proceeds, and that when contacted by Ms. Freed, Ms. Lawhon initially told Ms. Freed that she had placed Ms. Shepard in 111 Razorback Road in January 2002. The Agency suggests that this representation to Ms. Freed by Ms. Lawhon, together with Ms. Lawhon's remitting only $2,355.00 on April 1, 2002, with the January to March memo on that check, amounts to Respondents' intentional misrepresentation of the amount due Mr. Petrik. Ms. Freed also testified that she later discovered from Ms. Shepard that, in fact, Ms. Shepard had been in possession of 111 Razorback Road since October 2001, and, therefore, Ms. Freed realized that the total amount due Mr. Petrik was higher than the amount represented and remitted by Ms. Lawhon on April 1, 2002. On this basis, the Agency asserts that Respondents remitted the additional funds on April 15, 2002, only after Ms. Freed had confronted Ms. Lawhon concerning her misrepresentation. Unfortunately, Ms. Freed's version of events is not entirely credible for the following reasons: Ms. Freed testified that she knew 111 Razorback was vacant in October 2001, but did not know from October 2001 to March 2002 that it was occupied/rented. She also testified that during this period she made no effort to rent that house. This suggests that either she was not doing her job or she knew on some level in October 2001 that the property was already rented. Ms. Lawhon's notification to Mrs. Alward that it was rented in December 2001 is unrefuted, and Mr. Alward testified that approximately January 2002, he and his wife had notified Ms. Freed that someone was living in the house. Against all this, Ms. Freed testified that she had learned of the occupancy of 111 Razorback Road from the Alwards in March 2002 and from Ms. Lawhon. She further testified that when she first talked to Ms. Lawhon in March, Ms. Lawhon said she had previously sent Ms. Freed her own check and would have to determine if that check had cleared.6/ Finally, Ms. Shepard is very clear that when Ms. Freed contacted her, Ms. Freed did not dispute the $635.00 (as opposed to $675.00) per month rental amount.7/ While Ms. Freed's accepting the lesser amount is not absolute proof, it is, with all the other evidence, an indicator that she had previously approved that amount when Ms. Lawhon telephoned her in October 2001. Given the somewhat naïve and confused property management process in Sarasota, including Ms. Freed's ignorance that Newhouse, Inc. actually held title to the property, Ms. Freed's assessment of an intentional misrepresentation by Respondents is not persuasive. It is undisputed that Ms. Lawhon did not correct the discrepancy of $1,270.00 until April 15, 2002, after Mr. Petrik's lawyer (not Ms. Freed) contacted her, but she did resolve the issue by the next business day after she was alerted that there might be an error. As to the issues of whether or not Ms. Lawhon made a willful oral misrepresentation to Ms. Freed on March 26, 2002, or on the April 1, 2002, Shell Point Realty, Inc., check as to how long Ms. Shepard had occupied 111 Razorback Road or was willfully withholding funds on April 1, 2002, it is more significant that from the very beginning of this series of events on October 15, 2001, Ms. Lawhon told Ms. Shepard to make out her checks to Mr. Petrik and that none of Ms. Shepard's checks were ever in Respondents' possession until March 26, 2002. Therefore, together with Ms. Lawhon's overwrought state of mind on April 1, 2002, it is not clear whether there was a willful misrepresentation, a misunderstanding, a miscommunication, or a miscalculation with regard to the first transmittal of only part of the rental funds on April 1, 2002, and the time line is not so clear that Ms. Freed's and the Agency's sinister construction of Ms. Lawhon's communications and calculations can be the only construction. Without the Agency's sinister construction of events, there is only clear and convincing evidence that Ms. Lawhon undertook, without expectation of a direct real estate commission, to rent 111 Razorback Road for Mr. Petrik, regardless of what entity actually held title thereto. In doing so, she undertook a fiduciary relationship with him and Ms. Shepard. In this capacity, she received a $450.00 cash deposit, which she retained for over five months without clear authority to retain it, and she did not timely deposit it in a trust or other appropriate account for Mr. Petrik's benefit. She did not follow up on getting a lease executed by the parties, which, based on hers and Ms. Freed's prior course of dealing, Ms. Freed could have reasonably expected and which Ms. Shepard clearly did expect. When Ms. Freed inquired about the matter in March 2002, Ms. Lawhon, to her credit, tried to resolve the matter quickly and appropriately. However, in the course of resolving it, she did not get an executed lease as expected; she endorsed checks made out to Mr. Petrik without clear authority to do so; she did not deposit funds from those checks into an appropriate account; and she repeatedly miscalculated amounts due and remitted incorrect amounts to Mr. Petrik, via Ms. Freed. She also did not discover her errors on her own, but had to be alerted by the lawyer on April 12, 2002. While I detect no dishonest intent, nor any intent to permanently convert any funds to her personal use, the fact that Ms. Lawhon ultimately transmitted to Mr. Petrik the full amount due is not particularly to her credit, since her actions--or lack of action--had the effect of depriving Mr. Petrik of the use of a portion of those funds for nearly six months.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order which: Finds Respondents Mary Lawhon and Shell Point Realty, Inc., guilty of Section 475.25(1)(k), Florida Statutes, Counts III and VI, respectively, of the Administrative Complaint; Provides as a penalty for Mary Lawhon the payment of a $1,000.00 fine and five months' suspension of her licenses; Provides as a penalty for Shell Point Realty, Inc., a reprimand; and Dismisses Counts I, II, IV, and V of the Administrative Complaint. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 21st day of April, 2003.
The Issue Whether Petitioner, the Charles J. Harris Trust, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. The Applicant, Charles J. Harris Trust, is the owner of real property located in Clay County, Florida. The Applicant's property (hereinafter referred to as the "Property") is more fully described in Exhibit "A" of the documentation offered in support of the Applicant's application. The Property consists of approximately 29 acres located on Lake Geneva. The Property was purchased by Charles J. Harris and Bonnie Lee Harris, husband and wife, on January 14, 1970. On May 4, 1972, the Property was transferred by the Harris' to the Charles J. Harris Trust. The beneficiaries of the Applicant are the three adult children of the Harris'. One of those children, Becky Harris, is profoundly retarded and requires constant care. While room and board are provided for Becky, the Harris provide funds for other needs. Development of the Property; Government Action Relied Upon. On January 14, 1970, the Harris' entered into an contract to purchase the Property. See Exhibit B of the documentation in support of the Applicant's application for the specific terms of the purchase agreement. Prior to entering into the purchase contract, Winfred Crawford, a registered real estate broker, wrote a letter dated January 12, 1970, on behalf of the Harris' to George A. Gnann of the Zoning Board for Clay County, Florida. Ms. Crawford informed Mr. Gnann of the following: The property is being purchased with the thought of subdividing and the buyer has requested that we obtain for him the Clay County requirements, as to lot sizes, road sizes and etc., also please advise the zoning now on this property and what the requirements would be to change the zoning necessary to meet the County Requirements. All information that would be informative will be appreciated. By letter of January 14, 1970, Ms. Crawford wrote another letter to Mr. Gnann memorializing information provided by Mr. Gnann verbally in response to Ms. Crawford's letter of January 12, 1970. A copy of this letter was provided to the Harris' on January 14, 1970, prior to their purchase of the Property. In part, Ms. Crawford wrote the following: I understood the requirements and procedure as follows: The Clay County required lot size- 15,000 square feet, no lot to be less than 70 feet in width. The set back line from any street would be 25 feet, and set back from side lot lines 10 feet. . . . Proposed Plat would be submitted to you for your approval and signature. (This would be for approval of lot sizes and set back lines). Proposed Plat then would be submitted Louis McKee, Clay County Engineer, Orange Park, Florida, for his approval of width and location of streets. Proposed Plat would require his signature. Proposed Plat then would be submitted to Mr. Harry Riggs, County Health Department, Green Cove Springs, Florida, for his approval for sewerage disposal. Proposed Plat would require his signature. Proposed Plat would then be submitted for the approval and acceptance of the County Commissioners, requiring the Chairmans [sic] signature of acceptance before the Plat could be recorded. Based upon the foregoing, Clay County represented to the Harris' how the Property could be developed according to zoning and Clay County laws governing development of property in existence in 1970. Clay County also informed the Harris' of the steps that they needed to follow in order to plat the Property according to Clay County law in 1970. Detrimental Reliance. In reliance upon Clay County's representations, the Harris' purchased the Property. The Harris' paid $35,000.00 for the Property. The Harris' also paid interest of $29,380.00 to finance the purchase price for the Property. On July 18, 1972, the Clay County Zoning Commission gave notice that it would hold a public hearing on Thursday, August 3, 1972, to consider rezoning certain properties in Clay County. Among other things, the Clay County Zoning Commission gave notice that it planned to consider rezoning the Property from Agricultural, "A", to Single-Family Residential, "RA". The RA zoning category changed the minimum residential lot size allowed for the Property from 15,000 square feet to 20,000 square feet. Prior to the Harris' purchase of the Property, the shoreline of the Property had been modified. A natural cove along the shoreline of the Property was closed in with a spoil dike and island. After purchasing the Property the Harris' began seeking approval from the Florida Department of Environmental Regulation (now the Department of Environmental Protection)(hereinafter referred to as the "Department") of a permit to restore the shoreline to its original condition. In connection with the restoration of the Property's shoreline, costs were incurred by the Applicant for the services of engineers and surveyors. A "Study of Proposed Reconnection of Pond to Lake Geneva" was prepared by Barry A. Benedict, Ph.D., and plans for the restoration of the shoreline were prepared. On March 26, 1982, the Department approved a permit for the restoration of the shoreline. The evidence failed to prove that Clay County made any representations to the Applicant as a result of the process of obtaining the permit. The restoration of the shoreline of the Property was completed by the Applicant in 1982. The costs of the restoration project incurred by the Applicant was approximately $11,940.00. During the early 1980's the Applicant incurred costs of $22,319.00 to clear a dirt road from the western boundary of the Property to most of the lots along the shoreline, including four lots subsequently sold by the Applicant. The four lots sold by the Applicant were sold Between approximately 1983 and 1984. The lots were sold to unrelated third parties. Non-exclusive easements of ingress and egress were also conveyed to the owners of the sold lots. All of the sold lots are located along the shoreline of the Property. One of the sold lots, Lot 1-L (1.163 acres), is located along the northern boundary of the Property and has ingress/egress along the northern boundary of the Property. Another of the sold lots, Lot F (0.823 acres), requires ingress/egress along the cleared road that was cut through unsold lots. The other two sold lots, Lots C (0.681 acres) and D (0.731 acres), are contiguous and require ingress/egress along the cleared road that was cut through unsold lots. Lots C and D are separated by Lot E, a 0.691-acre unsold portion of the Property. In 1985, after selling the four lots, the Applicant had a Boundary Survey of the Property prepared by Joseph G. Knapp, Registered Land Surveyor. The Boundary Survey was completed June 22, 1985. The Boundary Survey identifies how the Applicant intends to subdivide the Property into 34 lots. Three of the lots are just over one acre. The rest of the lots are between 0.6 acres and just under one acre. The Boundary Survey prepared for the Applicant could have served as a recorded plat but was not recorded with Clay County by the Applicant. Steps 3 through 6 outlined in Ms. Crawford's letter of January 14, 1970, setting out the representations from Clay County concerning the laws governing development of the Property in 1970, and in particular, recording a plat of the Property, were not followed by the Applicant. At the time of the formal hearing of this case, approximately 23 acres of the Property remain unsold. Rights that will be Destroyed. Clay County adopted a comprehensive growth management plan in January 1992. Pursuant to the plan, the land use for he Property was designated as "Agriculture." Land designated with a land use of "Agriculture" pursuant to the plan may be developed at a density of one residential unit per 20 acres. The land use designation was modified in 1994 to "RA 2" but not in any material respect. Property designated "Agriculture" or "RA 2" may also be used for agricultural purposes as long as they are "bona fide" agricultural purposes, or "good faith commercial agricultural use of the land." Prior to the adoption of the Clay County comprehensive plan, the Applicants could have sold the remaining 23.7 acres of the Property as the remaining 30 unsold lots designated in the Boundary Survey prepared for the Applicant. As a result of the land use designation for the Property adopted in Clay County's comprehensive plan, the remaining 23.7 acres of the Property with easements for ingress and egress to sold lots may be developed with one residential unit only. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue Whether Marion Malt is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Marion Malt is a registered real estate saleswoman. Marion Malt worked for International Land Services Chartered, Inc., as a listing representative or "closer". She was paid commissions through International Land Sales Chartered, Inc. In the course of her employment as a listing representative with International Land Services Chartered, Inc., Marion Malt contacted Joan Culpepper. Malt made representations to Mrs. Culpepper that she (Malt) had sold property and that the real estate market in Florida was good. She further represented that the Culpeppers could sell their property which they had purchased for $2,000.00 for approximately $20,000.00. Malt further represented that she could sell the Culpepper's property quickly, probably within sixty days. Similar representations were made to Genevieve Voli and David Bohrer. Mrs. Malt identified her signature on a letter which Mrs. Culpepper had identified as a letter received after her initial contact by a person identifying herself as Marion Malt. Marion Malt testified that she sent such letters to the persons whom she contacted. Marion Malt knew that International Land Services Chartered, Inc., had no sales staff, and further, Malt knew that she had not sold any property. Malt knew that the sales operation of International Land Services, Chartered, Inc. was totally dependent upon other brokers marketing the property listed by International Land Services Chartered, Inc., through advertisement in the catalogue prepared by International Land Services Chartered, Inc. Malt had no actual knowledge of any sales based upon the catalogue by International Land Services Chartered, Inc., yet she represented such sales had been consummated in her conversations with Culpepper, Voli, and Bohrer.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of Marion Malt as a real estate saleswoman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Ronald E. Fried 2699 South Bayshore Drive Suite 400C Miami, Florida 33133
The Issue Whether Petitioners have standing to initiate formal proceedings under the City of Tallahassee Code of Ordinances. Whether the Planning Commission has jurisdiction to consider a challenge to the City's vested rights determination. Whether the Respondents Barnette W. Allen and Sally P. Allen's (Allens) proposed development, known as the Allenwoods Apartments project, is exempt from the consistency and concurrency requirements of the City of Tallahassee's (City) Comprehensive Plan.
Findings Of Fact Parties Petitioner Downtown Park Avenue Neighborhood Association (Neighborhood Association), Inc., is not-for-profit corporation organized on August 18, 1997, and existing under the laws of the State of Florida. The Neighborhood Association's principal office is located at 858 East Call Street, Tallahassee, Florida. The purpose of the Neighborhood Association is to preserve the residential nature and stability of the members' neighborhood. The members of the Neighborhood Association reside in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Some members of the Neighborhood Association own property within 500 feet or less of the subject property. Petitioner Dana Plummer resides at 133-9 Oak Street, Tallahassee, Florida, which is in close proximity to the property upon which the Allenwoods Apartments project is proposed to be constructed. Mr. Plummer owns property less than 300 feet from the subject property. Plummer is the President of the Neighborhood Association. Respondent City of Tallahassee is a municipal corporation of the State of Florida. The City's DRC approved a Type B Site Plan application for the Allenwoods Apartments project. Respondents Allens are the owners of the property on which the proposed Allenwoods Apartments are to be located, and which property is designated as Blocks D and F in the Magnolia Heights Addition of the Hays Division. Allenwoods Apartments The Allenwoods Apartments is proposed to be constructed in approximately 8.64 acres, and is located on the north side of Call Street. The Allenwoods Apartments is proposed to consist of 88 apartment units. The apartments will be located within three three-story buildings and one two-story building, with a total of 202 parking spaces. The density of the proposed Allenwoods Apartments project is approximately ten units per acre. On October 24, 1996, the Planning Department issued Land Use Compliance Certificate No. CC960429 which stated that: This site is eligible for development of 110 multi-family dwelling units developed at the RM-1 standards in Hays Subdivision, an exempt subdivision. Type B review required in proximity with existing low density residential uses. Notice of the Planning Department's decision to issue Land Use Compliance Certificate No. CC960429 was not provided to any members of the Neighborhood Association nor to Plummer. In May 1997, the Allens submitted a Type B Site Plan application for the Allenwoods Apartments project. In mid-June 1997, during the City's review of the proposed project, the City determined that the Allens' two lots qualified as lots located within a subdivision recorded as of July 16, 1990, and all infrastructure required for the development of the property was completed prior to that date. Accordingly, the City staff determined that, pursuant to Section 18-103(1)(a)(1) of the City's Vested Rights Review Ordinance, the proposed Allenwoods Apartments project did not have to comply with the concurrency and consistency requirements of the City's 2010 Comprehensive Plan. Consequently, the City staff did not review the Allenwoods Apartments project for consistency with the City's 2010 Comprehensive Plan, nor did the City review the project for concurrency. On August 11, 1997, the City's Development Review Committee approved the Type B Site Plan application for the Allenwoods Apartments project. Single-family residences are the primary use of the properties immediately adjacent to the Allens property. All existing multi-family units that have been constructed in the neighborhood were constructed prior to the adoption of the City's 2010 Comprehensive Plan. History of the Subject Property On May 1, 1910, J. L. Hays recorded a subdivision known as the Magnolia Heights Addition of the Hays Division. The plat for the Magnolia Heights Addition of the Hays Division is recorded at Deed Book "KK," page 600, of the Public Records of Leon County. The plat depicted a street running between Blocks F and G. The plat also depicted a street between Blocks D and F. These streets were never constructed. On January 15, 1946, H. H. Wells acquired certain Blocks of the Magnolia Heights Addition of the Hays Division, including all of Blocks D and F, and a portion of Block E. On March 11, 1946, H. H. Wells and Susye Bell Wells replated all of Block C and a portion of B, D, E, F, and G. The new subdivision was named "Magnolia Manor," and is recorded at Plat Book 3, page 6, of the Public records of Leon County. On January 6, 1948, H. H. Wells and Susye Bell Wells sold all of Blocks F and G, and Lots 9, 10, and 11 in Block D, of the Magnolia Heights Addition of the Hays Division to the Glover Construction Company. On July 22, 1948, the Glover Construction sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Willie Mae Hampton. On November 1, 1963, Glover Construction Company sold a portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Harlem J. Allen, Clyde P. Allen, Barnette W. Allen, and Sally Procter Allen. On February 13, 1964, Willie Mae Hampton sold her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Canal Timber Corporation. On December 2, 1964, Barnette W. Allen and Sally Procter Allen entered into an agreement to purchase that portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division owned by the Canal Timber Corporation. On November 20, 1972, Canal Timber Corporation sold its portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Grace H. Gibson. On December 26, 1974, Grace H. Gibson transferred her portion of Blocks D and F of the Magnolia Heights Addition of the Hays Division to Barnette W. Allen and Sally Procter Allen. On December 15, 1976, Barnette W. Allen and Sally Procter Allen acquired whatever property interests that Harlem J. Allen and Clyde P. Allen possessed by virtue of the acquisition that occurred on November 1, 1963. The City's Vested Rights Review Ordinance The City adopted its 2010 Comprehensive Plan on July 16, 1990. Concurrently with the adoption of its 2010 Comprehensive Plan, the City adopted its Vested Rights Review Ordinance, Ordinance No. 90-O-0043AA. This ordinance was codified as Article VII of Chapter 18 of the Code of Ordinances. Article VII (Sections 18-101 through 18-106) of the Tallahassee Code of Ordinances establishes the standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Section 18-101 of the Code is a statement of intent in regard to the Vested Rights Ordinance, which reads: This article establishes the sole administrative procedures and standards by which a property owner may demonstrate that private property rights have vested against the provisions of the 2010 Comprehensive Plan. Said administrative procedures shall provide determinations of consistency of development with the densities and intensities set forth in the 2010 Comprehensive Plan and that development is not subject to the concurrency requirements of the 2010 Comprehensive Plan. The City established three categories for which property owners could apply to establish their vested rights to continue development of their property without complying with the consistency and concurrency requirements of the 2010 Comprehensive Plan. These categories are contained in Sections 18-104(1) and (2), Code of Ordinances. The three categories were denominated as "common-law vesting," "statutory vesting," and developments of regional impact, which were approved pursuant to Chapter 380, Florida Statutes. Pursuant to Section 18-103(2), property owners who contended that they had vested rights pursuant to one of these three categories were required to request a determination of vested rights by filing an application with the Planning Department within 120 calendar days of July 16, 1990. The failure to timely file an application for a vested rights determination within the prescribed time limits constituted a waiver of any vested rights claims. The city's Vested Rights Review Ordinance also expressly states that a property owner cannot receive vested rights based upon a zoning classification. In addition to the three categories for which property owners could apply to establish vested property rights, the City's Vested Rights Review Ordinance included a provision by which certain property owners were presumptively vested and, therefore, were not required to file an application for a vested rights determination. Section 18-103(1) reads, as follows: The following categories shall be presumptively vested for the purposes of consistency with the 2010 Comprehensive Plan and concurrency as specified in the 2010 Comprehensive Plan and shall not be required to file an application to preserve their vested rights status: All lots within a subdivision recorded as of July 16, 1990, or lots in approved subdivisions for which streets, stormwater management facilities, utilities, and other infrastructure required for the development have been completed as of July 16, 1990. The Tallahassee-Leon County Planning Department shall maintain a listing of such exempt subdivisions. All active and valid building permits issued prior to July 17, 1990. All technically complete building permit applications received by the building inspection department on or before July 2, 1990, and subsequently issued, shall be vested under the provisions of the 2010 Comprehensive Plan, regardless of date of issuance. Any structure on which construction has been completed and a certificate of occupancy issued if a certificate of occupancy was required at time of permitting. All lots of record as of July 1, 1984, not located within a subdivision, but only to the extent of one (1) single-family residence per lot. If a property qualifies as an exempt or vested property pursuant to the City's Vested Rights Review Ordinance, the property owner does not have to comply with the consistency and concurrency provisions of the City's 2010 Comprehensive Plan. Such properties are allowed to be developed pursuant to the 1971 zoning code that was in effect until the City's 2010 Comprehensive Plan was adopted. The City staff and DRC determined that the subject property was vested because it fulfilled the requirements of Section 18-103(1)(a)(1) as a lot "within a subdivision recorded as of July 16, 1990." The basis for this determination was that the property was located within the plat for the Magnolia Heights Addition of the Hays Division which was recorded in 1910. The plat does not contain any statements as to use or density, however. The subdivision, known as Magnolia Manor, plated in 1946, has its own separate subdivision number, and consists of a portion of property that was originally part of the Magnolia Heights Addition to the Hays Division. A small portion of the Allens' property is located within the Magnolia Manor subdivision. Although from 1948 to 1974, Blocks D and F were both divided and transferred in a manner differently than that depicted on the 1910 Plat, all conveyances of the property subject to the Site Plan have been by reference to the lot and block of Magnolia Heights Addition. Subsequent purchasers of the property conveyed the lots subject to the Site Plan to the Allens, and described the lots as part of the original subdivision rather than by any reference to "Magnolia Manor." The replatting of certain lots within the subdivision to create "Magnolia Manor" did not affect or otherwise change any of the property subject to the Site Plan. On August 20, 1990, the City determined that the Magnolia Heights Addition was an exempt subdivision pursuant to the provisions of Section 18-103(1)(a)(1) of City Code of Ordinances, and was placed on the Planning Department list of exempt subdivisions. As such, the subdivision was exempt from the consistency and concurrency requirements of the Comprehensive Plan. The subdivision is one of more than 300-350 subdivisions determined to be exempt as recorded subdivisions. The exemption was based upon the fact the project was located in a subdivision recorded as of July 16, 1990, and all infrastructure required for the subdivision and for development of the property was in place and complete as of that date. The City staff has been guided in its interpretation and application of the City's Vested Rights Review Ordinance by a memorandum dated August 27, 1990, written by then Assistant City Attorney John Systma. The August 27 memorandum states, in pertinent part, that: This memo is in response to your questions about the proper procedure to follow in determining if a subdivision recorded in 1906 should be declared exempt under the provisions of the Vested Rights Review Ordinance. The critical element that must exist for the subdivision to be exempt is that the current subdivision must be identical to the plat that was created when the subdivision was initially recorded. Any resubdivision, replatting or other changes made to the original recorded plat invalidates that plat. An excellent example of an invalid plat is the original plat recorded for the Pecan Endowment, which has subsequently been changed many times, thereby invalidating it. The subdivision was recorded as of July 16, 1990. The resubdivision of a part of an exempt recorded subdivision, which does not affect the property under review and subject to development approval, has never been the basis of denial of the recorded subdivision exemption provisions of the Vested Rights Ordinance. City staff have never denied the exemption or vesting based upon a replatting of other lots in a subdivision which were not included in the proposed exempt development. Respondents clearly established that such replatting has not been a basis for denial of the exemption by City staff in applying the Vested Rights Ordinance since its adoption in 1990. The development approvals for the Allenwoods Apartments are valid if it is determined that the project is exempt or vested under the Vested Rights Ordinance. The property, at the time of adoption of the 2010 Comprehensive Plan, was zoned RM-1, and allowed development of a multifamily project at the density approved for the Allens. The current zoning of the property is MR1 and would permit the development of the property as a multifamily project at the density approved for the Allens.
Recommendation Based on the foregoing findings of fact and conclusions of RECOMMENDED that the Planning Commission find that Respondents Allens' lots are vested for the purposes of consistency and concurrency with the 2010 Comprehensive Plan, and, it is further RECOMMENDED that the Planning Commission approve the Site Plan for the Allenwoods Apartment Project, as consistent with the requirements of Chapter 27, Article XXI, Section 21.4.G.8. of the Code of Ordinances. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of May, 1998. COPIES FURNISHED: Charles A. Francis, Esquire Francis & Sweet, P.A. Post Office Box 10551 Tallahassee, Florida 32302 David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301 Linda R. Hurst Assistant City Attorney City Hall 300 South Adams Street Second Floor Tallahassee, Florida 32301 Mark Gumula Director of Planning Tallahassee-Leon County Planning Department 300 South Adams Street Tallahassee, Florida 32301 Jean Gregory Clerk of the Planning Commission Tallahassee-Leon County Planning Department 300 South Adams Street, City Hall Tallahassee, Florida 32301 Robert B. Inzer City Treasurer-Clerk 300 South Adams Street, City Hall Tallahassee, Florida 32301
The Issue Whether the Department of Transportation's intended action to reject all quotes and re-advertise Lease No. 550:0318 was illegal, arbitrary, fraudulent, or dishonest.
Findings Of Fact In October of 1999, the Department advertised for office space for use as the Toll Data Center - Audit Section, Office of Toll Operations (Toll Office) located in Broward County. The lease was clearly advertised as a negotiated lease. It was not advertised as a competitive bid lease. Under the negotiated lease process before letting any lease, the Department must submit to the Department of Management Services (DMS) a Request for Space Need (RSN) and Letter of Agency Staffing (LAS). From DMS the Department receives the authority to directly negotiate a lease for space under 5,000 square feet with prospective lessors. 1/ Consistent with procedure, the Department received approval of the RSN on October 18, 1999. Pursuant to statute, DMS has strongly suggested that prior to selection of the apparent successful lessor, the Department should obtain a minimum of three documented quotes for a lease that has not been competitively bid. The Department has consistently followed that suggestion in negotiated leases. Under special circumstances, where it is clear it is improbable that three quotes cannot be obtained, the Department may waive its requirement that three documented quotes be received. However, the agency must certify to DMS that attempts to receive the required number of documented quotes were unsuccessful and/or special circumstances exist to negotiate the lease with less than three quotes. In this case, no special circumstances exist. In an effort to obtain more than the minimum three documented quotes, the Department opted to advertise for lease space on the Internet. The Internet is utilized by the DMS, among other state agencies, to disseminate information provided in the RSN to the private sector. Additionally, the Internet site may also be used by the private sector to provide notice of space they have available for review by the agency seeking space. A total of three submittal packages were distributed for Lease No. 550:0318. Despite the Department's advertisement over the Internet, only two requests for quote submittal packages were received. Of the three quote submittal packages distributed, the Department received only one documented quote in response to the advertisement for the Toll Office. Atlantic Investment submitted a Quote Submittal Form to the Department in late October for office space in North Fort Lauderdale. Atlantic Investment became aware of the Department's advertisement for lease space from Sheldon M. Schermer, employed by Atlantic Investment as its real estate agent. Mr. Schermer learned of the Department's need for lease space from an advertisement placed on the Internet. On November 8, 1999, the Department informed Atlantic Investment via Sheldon M. Schermer, Real Estate Agent for Atlantic Investment, of the Department's intent to reject all quotes and re-advertise for Lease No. 550:0318. This decision was not arbitrary, capricious, fraudulent, or dishonest and well within the Department's discretion and procedures for negotiated leases. The basis for the decision was the Department's modification of the lease specifications pursuant to a recommendation by DMS to modify the lease space terms to hopefully generate more interest and more quotes. In a competitive negotiation, DMS was aware of agencies who modified leases and advertised as many as five times before three documented quotes were received. Moreover, the evidence showed that the Broward County commercial real estate market could easily generate three quotes for the space required by the Toll Office.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Petitioner's protest. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of April, 2000.
The Issue Whether the Appellant, Terrance H. Fregly, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. In approximately 1977-1980, Mr. Fregly purchased several adjoining parcels of real estate. The parcels were to some extent marginally developable property. The total property acquired by Mr. Fregly was approximately 20 or 25 acres and was named the "Lakewood Industrial Center" by Mr. Fregly. The evidence presented by Mr. Fregly did not clearly establish whether the property consisted of 20 or 25 acres. Whatever the total acreage was, it will be referred to collectively as the "25 Acres". The 25 Acres are located on the east side of Capital Circle, Northwest, Tallahassee, Leon County, Florida. Mr. Fregly intended to develope the property in accordance with the land uses permitted under the M-2 zoning ordinance in effect in 1977-1980. At some time after acquiring the 25 Acres, Mr. Fregly developed part of the 25 Acres, by building approximately 65,000 square feet of warehouses on part of the 25 Acres. The warehouses and the real estate (hereinafter referred to as the "Warehouse Acres") they were built on were subsequently sold by Mr. Fregly. Mr. Fregly also sold another part of the 25 Acres. In total, by 1985 Mr. Fregly had sold approximately 11 acres of the 25 Acres. The remaining 14 acres (hereinafter referred to as the "Subject Property"), of the 25 Acres are the subject of the Application for Vested Rights Determination (hereinafter referred to as the "Application"), filed by Mr. Fregly with Leon County, Application VR0042LC0. The Subject Property is comprised of tax parcel 009, consisting of approximately 4 acres, and tax parcel 210, consisting of approximately 10 acres. Development of the 25 Acres. Mr. Fregly obtained approval to rezone part of the 25 Acres from agricultural to M-2 Industrial. The weight of the evidence failed to prove when this occurred. The 25 Acres were zoned partly M-1 and partly M-2. In April, 1980, Mr. Fregly received from the Leon County Department of Public Works, Leon County Land Clearing and Development Permit No. 1017 (hereinafter referred to as "Permit 1017"). Permit 1017 authorized Mr. Fregly to clear, grade and fill the 25 Acres and to construct a stormwater detention system thereon. Permit 1017 was applied for by Mr. Fregly with an Application for Permit for Clearing and Development dated as received March 17, 1980. It was indicated on the Application for Permit for Clearing and Development that the purpose of the application is as follows: Application is hereby made for a permit to make changes in the contour of land proposed to be subdivided, developed, or changed in use by grading, excavating, removal, alteration, or destruction of the natural topsoil, as hereinafter located and described. . . . The weight of the evidence failed to prove that Leon County made any representation to Mr. Fregly in issuing Permit 1017 concerning the future development of the Subject Property other than authorizing Mr. Fregly to clear and grade the Subject Property for some future unspecified development, subdivision or other change to the use of the Subject Property. The State of Florida Department of Environmental Regulation issued Construction Permit No. 37-36313-1E (hereinafter referred to as the "DER Permit"), on May 17, 1983. The DER Permit has an expiration date of May 30, 1985. The DER Permit authorized Mr. Fregly to fill approximately 3.5 acres of wetlands with approximately 9,500 cubic yards of fill. Not all of the 3.5 acres involved in the DER Permit are located on the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The DER Permit was issued pursuant to a Final Order issued by the Department of Environmental Regulation approving a settlement stipulation. The weight of the evidence failed to prove that Leon County was involved in the granting of the DER Permit or that Leon County made any representation to Mr. Fregly when the DER Permit was issued. Mr. Fregly also received a federal dredge and fill permit in 1980 or 1981. This permit was not offered into evidence. The weight of the evidence failed to prove what portion of the 25 Acres this permit applied to. The weight of the evidence failed to prove that Leon County was involved in the granting of the federal dredge and fill permit or that Leon County made any representation to Mr. Fregly when the permit was issued. Following the issuance of the DER Permit and the federal permit, Mr. Fregly alleged that approximately 109,500 cubic yards of fill material was placed on the Subject Property: 9,500 cubic feet on tax parcel 210 (prior to 1982-1985), and 100,000 cubic feet on tax parcel 009 (from 1982-1985). In light of the fact that the DER Permit also involved property other than the Subject Property, it is not clear whether these figures are correct. The 25 Acres were cleared and graded. A master stormwater system to accommodate stormwater runoff from the 25 Acres was constructed. A paved access road was constructed on the edge of tax parcel 009 and the Warehouse Acres. The road is used for access to the Warehouse Acres and will be used for access to the Subject Property. An easement for use of the road was granted to the purchasers of the Warehouse Acres. Mr. Fregly intends to extend the access road into tax parcel 210. The Warehouse Acres were prepared for construction and the warehouses were constructed prior to 1985 when the Warehouse Acres were sold. The foregoing activities occurred between approximately 1977 and 1985. Much of Mr. Fregly's development activities were associated with the development and sale of the Warehouse Acres and not the Subject Property. Between 1985 and the filing of the Application, the development of the Subject Property has been marginal. On July 31, 1989, the Leon County Department of Public Works, Division of Environmental Management, issued Environmental Management Permit No. 890312 for landscape, trees and "special condition" on tax parcel 009 of the Subject Property. On September 24, 1990, Mr. Fregly applied for Leon County Department of Public Works, Division of Environmental Management, Permit No. 90538 to authorize construction of additional stormwater facilities and landscaping on tax parcel 210 of the Subject Property. The infrastructure for the Subject Property has not been completed. In particular, the access road for tax parcel 210 of the Subject Property has not been completed. There has been no subdivision review or processing by Leon County for the Subject Property, no site plan approval for the Subject Property has been sought or granted and no building permits or planned unit development approvals have been issued for the Subject Property. Despite the representation in the Application to the contrary, not all of the permits to develope the Subject Property have been obtained. Costs Incurred by Mr. Fregly. Mr. Fregly offered a pleading titled "Chronology & Cost Data" (hereinafter referred to as the "Chronology"), as evidence concerning the costs incurred in the development of the 25 Acres, including the Subject Property. Pursuant to the Chronology, Mr. Fregly has suggested that he has incurred $172,846.21 since the 25 Acres were acquired. In Mr. Fregly's proposed final order it has been suggested that approximately $118,000.00 of the amounts listed on the Chronology were incurred for "site work, clearing, grading, filling, construction of the stormwater management system and access roadway". Exactly which of the cost items listed on the Chronology have been included in the $118,000.00 is not clear. In the conclusions of law of Mr. Fregly's proposed final order it has also been suggested that Mr. Fregly incurred in excess of $160,000.00 in expenses. Exactly what expenses make up this amount is also not clear. The weight of the evidence failed to prove the extent to which the following costs listed on the Chronology were incurred only for the Subject Property: $12,300.00 for "A. Dredge & fill permit"; $1,200.00 for "B. Engineering fee - Dredge & Fill DER & Federal"; $4,700.00 for "C. Engineering fee - Stormwater design Leon County"; $3,700.00 for "D. Pipe & Dredge ditch . . ."; $22,535.45 for "E. Road construction"; and $3,900.00 for "F. DOT entrance". The costs listed in paragraphs A-F of the Chronology were attributable in part to the Warehouse Acres. For example, the $22,535.45 was for paving the access road and "parking between warehouses." This amount is primarily attributable to the Warehouse Acres and only partly to the Subject Property. It is also not clear whether the costs allegedly attributable to filling the Subject Property are attributable only to the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The weight of the evidence failed to prove whether tax parcel 423 was filled or whether the costs associated with filling submitted were only incurred for filling the Subject Property. Based upon the foregoing findings of fact, the weight of the evidence failed to prove what part of the costs listed on the Chronology or testified about by Mr. Fregly are attributable to the development of the Subject Property. It cannot, therefore, be determined the extent of any detriment which Mr. Fregly may have suffered as a result of any alleged Leon County representation concerning the development of the Subject Property. All of the costs listed in the Chronology were incurred after Permit 1017 was acquired. The weight of the evidence failed to prove that the costs incurred by Mr. Fregly in reliance on the issuance of Permit 1017 were substantial. All that Permit 1017 authorized Mr. Fregly to do was to clear, grade and fill the 25 Acres and to construct a stormwater detention system. As Mr. Fregly knows, the laws governing the approved uses of land can change. It cannot, therefore, be concluded that Mr. Fregly reasonably believed that the issuance of Permit 1017 would allow him to fully develope the 25 Acres, or more particularly, the Subject Property, more than ten years later without any change in the laws governing how the Subject Property was to be changed. Development of the Property under the 2010 Plan. Mr. Fregly intends to develope the Subject Property by building 57,000 square feet of warehouse and office space. The weight of the evidence failed to prove that Mr. Fregly ever informed Leon County or that Leon County was aware of this intended use of the property until these proceedings commenced. Throughout these proceedings, Mr. Fregly, who was proffered and qualified as an expert in commercial real estate development, testified that there was an executed "lease" on the Subject Property. Representations that there is an executed lease are made several times in the Application filed by Mr. Fregly. The weight of the evidence, however, failed to prove that such a lease exists. At best, Mr. Fregly proved that he has a "gentleman's agreement" concerning a proposed lease of part of the Subject Property. Mr. Fregly's proposed development of the Subject Property would be allowed under the M-1 and M-2 zoning of the Subject Property. For purposes of the 2010 Comprehensive Plan, the Subject Property is currently in a Mixed-Use B, land-use designated area. Under the current zoning of the Subject Property, there are a substantial number of possible uses that are authorized, but the extent of such uses is limited, based upon similar existing uses within the zone the property is located. There are also restrictions involving permeability, transportation, utilities and the effects on adjacent landowners. Leon County has issued a certificate of concurrency for part of tax parcel 210. The certificate indicates concurrency compliance for a bulk storage facility of 6,000 square feet, plus 1,500 square feet of office space. Mr. Fregly has not asked Leon County to perform a formal consistency review of the Subject Property. The weight of the evidence failed to prove that the Subject Property does not meet the concurrency requirements of Chapter 163, Florida Statutes, or the 2010 Comprehensive Plan. In fact, the evidence proved that the Subject Property is in all likelihood consistent with the 2010 Comprehensive Plan. Procedure. Mr. Fregly filed the Application on or about August 20, 1990. On November 26, 1990, a hearing was held to consider the Application before the Staff Committee. At the request of Mr. Fregly the hearing was continued until December 17, 1990, to give Mr. Fregly an opportunity to provide additional information concerning the costs incurred by him in the development of the Subject Property. On December 17, 1990, the Staff Committee was reconvened. Mr. Fregly provided a map of the property and the Chronology. By letter dated December 19, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Fregly that the Application had been denied. By letter dated January 2, 1991, to Mr. Gumula, Mr. Fregly appealed the decision to deny his Application. By letter dated January 11, 1991, 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 April 17, 1991.
The Issue Whether disciplinary action should be taken against Respondents for alleged violation of Subsections 475.25(1)(a), (c), (d), and (i), F.S., Section 475.25(3), F.S., and Rules 21V-10.07 and 21V-12.06, F.A.C., as set forth in the Administrative Complaint, dated September 29, 1977. At the commencement of the hearing, counsel for the Petitioner announced that Respondent Walter L. Medlin is no longer registered with the Real Estate Commission, and that therefore he should be dismissed as a party Respondent. The request was granted by the Hearing Officer. Walter L. Medlin, as authorized representative of International Land and Investment Corporation, and Donna L. Allen, were advised of their rights in an administrative proceeding and they acknowledged that they understood the same.
Findings Of Fact Respondent International Land and Investment Corporation, Kissimmee, Florida, is registered with Petitioner as a corporate real estate broker and was so registered during the year 1975. At that time, Walter L. Medlin was registered with Petitioner as a real estate broker and also as president and active firm member of International Land and Investment Corporation. Respondent Thomas F. Wells, Kissimmee, Florida, is registered with Petitioner as a real estate broker and was so registered in 1975. Respondent Donna L. Allen, is registered with Petitioner as a real estate salesman and was so registered in 1975 with the firm of International Land and Investment Corporation. (Petitioner's Exhibits 2-4) During the month of August, 1975, Mrs. Mildred E. Bartlett, then residing in Hialeah, Florida, and her son, John B. Pate, visited Kissimmee, Florida, to make inquiries concerning the purchase of residential property in the area. At the time, Mrs. Bartlett was attempting to sell her residence in South Florida and was financially unable to purchase another residence until a sale had been effected. (Testimony of Bartlett, Pate) Respondent Wells showed Mrs. Bartlett and her son Lots 10 and 12 of a platted subdivision in Osceola County known as Neptune Shores. The two lots had homes constructed thereon which were approximately 75 percent completed. Prior to 1973, Wells and Medlin had purchased the property comprising the Neptune Shores Subdivision, and Wells had dedicated the plat of same on May 15, 1973, as the owner thereof. Lots 10 and 12 were thereafter sold to one Art Raska, who constructed the unfinished homes thereon, but thereafter defaulted on a mortgage on the property. The mortgage was foreclosed by the First Merritt Mortgage Corporation, Merritt Island, Florida, who thereby became the owner of a portion of the subdivision, including Lots 7, 10, and 12. International Land and Investment Corporation purchased a number of the lots at that time. At no time during Mrs. Bartlett's discussions with Wells and Medlin did they reveal their past and present interests in the Neptune Shores Subdivision, although she was furnished a copy of the plat. (Testimony of Bartlett, Pate, Raines, Medlin, Petitioner's Exhibit 5) Mrs. Bartlett expressed interest to Wells in purchasing Lots 10 and 12 as homes for herself and son, but told him that she would have no money to purchase the property until she sold her present house, and that therefore any purchase agreement would have to be contingent upon such a sale. Wells told her that he would check into the matter and ascertain the selling price. After returning home, Mrs. Bartlett received a telephone call from Wells during which he informed her that he would need $1,500.00 as earnest money in order that he could tell the mortgage company that he had an interested party and was holding money in his escrow account. On or about September 9, Wells wrote to her and enclosed an unsigned option contract between First Merritt Mortgage Corporation and herself which recited that for a consideration of $2,000.00 the purchaser could purchase Lots 10 and 12 for an additional sum of $44,000.00 on or before January 15, 1976. It further provided as follows: Seller will agree to cooperate with purchasers efforts to complete construction. This contract will be null and void and deposit returned if purchaser is unable to obtain the necessary permits by October 10, 1975. Evidence of a Certificate of Occupancy granted by Osceola County on either Lot 10 or Lot 12 shall extend the option period until March 1, 1976. The letter accompanying the proposed option agreement stated: "Please sign these if everything is in order and make the checks out to Thomas F. Wells, Broker, so I can deposit to an escrow account rather than have the mortgage company hold your money." The letter further stated that a "Judge owned Lots 14 and 15 for which he had paid $9,600.00 each, and that the price of Lot 11 would be $8,000.00. Although Mrs. Bartlett and her son contemplated completion of construction on the two houses which they intended to use for future residences, they had no intention of performing such work until they had purchased the property. After receipt of the option agreement, Mrs. Bartlett informed Wells that she did not want an option contract whereby she could lose her deposit if she were unable to purchase the property, but wished to have a contract of purchase and sale contingent upon the sale of her present residence. Wells told her that he would send her another contract with different wording, but did not do so. (Testimony of Bartlett, Pate, Petitioner's Exhibit 6, Respondent's Exhibit 1) During succeeding weeks, Wells urged Mrs. Bartlett to have the unfinished homes completed in order that she could qualify for a mortgage loan on Lost 10 and 12. Although she discussed this possibility with Wells, she ascertained through discussions with local financial consultants that this would be impossible due to her financial situation and that of her son. On September 21, 19975, Mrs. Bartlett and her son met with Wells and Medlin in Kissimmee. At the meeting, Mrs. Bartlett gave Medlin $200.00 for an option to purchase Lots 8, 9, and 11 in the Neptune Shores Subdivision for $6,600.00, $7,400.00 and $7,700.00, respectively, from International Land Investment Corporation by various dates in 1976. The option agreement, which was dated September 21, 1975, reflected a typewritten signature for Mrs. Bartlett, but she did not sign the same after being informed by Medlin that it was unnecessary for her to sign it. He scratched out her name on the contract and signed it himself as president of the corporation. The document was witnessed by Wells and Pate. Mrs. Bartlett was told by Medlin that he would hold the three lots in reserve for her in the event she wished to purchase them at a later date. Mrs. Bartlett had brought with her the proposed option contract previously sent to her by Wells, which provided for a $2,000.00 payment for the option to purchase Lots 10 and 12. She did not sign the contract, but gave him a check for $1,500.00 which Wells put in his escrow account on September 22. Mrs. Bartlett believed that this money was protected since it was to be placed in escrow; however, she acknowledged the fact that the $200.00 which she had given as an option on the other lots was an acceptable risk and that she did not mind losing that amount if the larger purchase of Lots 10 and 12 was not successful. Wells and Medlin both testified that Mrs. Bartlett was well aware that she was also risking the $1,500.00 and that she was concerned only about her ability to protect herself from being compelled to purchase the property in the event her present home did not sell or if she was unable to obtain mortgage financing on the new purchase. It is found from the evidence that their testimony is not credible in this respect. (Testimony of Bartlett, Pate, Medlin, Wells, Respondent's Exhibit 2) Medlin had previously contacted an official of the First Merritt Mortgage Corporation, but learned that it was not interested in taking Lots 10 and 12 off the market for an option agreement. He then negotiated a contract of sale and purchase of Lots 7, 10, and 12 from First Merritt Mortgage Corporation for a total price of $46,000.00 with an earnest money deposit of $4,000.00. It provided for closing on or before January 15, 1976. The contract was dated September 19, 195 and executed on that date by D. L. Allen on behalf of International Land and Investment Corporation. It was witnessed by Wells and Medlin. On September 23, 1975, it was executed by First Merritt Mortgage Corporation. The corporation also required that Medlin agree to guarantee performance by the buyer and he therefore signed the agreement in an individual capacity. The contract provided that no real estate commission would be paid on the transaction. Mrs. Bartlett was not informed at the September 21st meeting that these contract negotiations were pending. In late September, Wells told Mrs. Bartlett that the mortgage company wanted more earnest money and that an additional $2,500.00 would be necessary for this purpose. Mrs. Bartlett gave him a check for that amount, but later depleted her account before it cleared the bank because Wells had not provided her with a purchase contract. Wells showed Mrs. Bartlett a proposed option agreement D. L. Allen and herself which provided for a payment of $4,000.00 for the right to purchase Lots 10 and 12 on or before January 15, 1976, for the total sum of $46,000.00. It further provided as follows: "As a part of the consideration for the Seller having executed this Option: the Buyer agrees to diligently pursue the completion of the houses located on said property. All repairs or improvements will be made at no cost to the Seller and will provide the Seller with Lien Waiver at the completion of each improvement. All repairs or improvements will become the property of the Seller in the event this transaction is not completed." There was no signature block on the agreement for the purported purchaser of the option. Mrs. Bartlett had been told by Wells and Medlin at the September 21st meeting that "Mr." Allen was a "big investor" who would guarantee her commitments. In fact, Allen was Respondent Donna L. Allen who was then employed by International Land and Investment Corporation. On September 30, Wells wrote a check in the amount of $4,000.00 to Walter F. Medlin, Trustee, and on the same date Medlin wrote a check to First Merritt Mortgage Company in a like amount. Medlin's check was erroneously dated October 30, 1975. On October 3rd, the option contract was signed by D. C. Allen, and mailed to Mrs. Bartlett by Wells. On October 6, Wells' bank notified him that Mrs. Bartlett's check for $2,500.00 had been returned for insufficient funds. After various telephone conversations and a visit by Wells to Mrs. Bartlett's home, another check for $2,500.00 was sent to Wells on October 21, which he had converted to a cashier's check on October 24. The $2,500.00 represented funds that had been borrowed by Pate and given to his mother to transmit to Wells. Both Bartlett and Pate were under the impression that the additional payment would be placed in Wells' escrow account and retained until a sales contract was executed. (Testimony of Bartlett, Pate, wells, Medlin, Petitioner's Exhibit 1) In November, 1975, Mrs. Bartlett telephoned Wells and told him that she wanted a return of her money. Wells told her that he would have to consult with D. L. Allen because he had turned the money over to that individual in payment of the option that had been taken on the property. Thereafter, Allen executed an "amendment" to the agreement which was prepared by Medlin and witnessed by Medlin and Wells. The document stated in part that if the "buyer," on or before November 25, 1975, could not provide sufficient evidence as to the availability of funds to close the transaction on or before January 15, 1976, the option would terminate and funds paid by the buyer to Allen would be refunded out of proceeds of closing upon the sale of the property by Allen to a third party. By letter of November 21, 1975, Allen wrote to Bartlett referring to the option amendment and stating in part: "In view of your recent conversation with Mr. Tom Wells in which you indicated that you had no intention of accepting that Ammendment [sic] and considering that I have not received a copy of the Ammendment [sic] signed by you indicating your acceptance, I am hereby cancelling my offer to ammend [sic] the original Option. I also wish to remind you that in the event that you do not exercise that Option and comply with each and every part of that agreement there will be 'no liability to refund the money paid therefor.'" By a mailgram sent on November 24, 1975, Bartlett advised Wells that he had until November 28 to return the $4,000.00 being held in escrow which she had requested in a November 20 telephone conversation, or she would report the matter to the district attorney's office and the Real Estate Commission. Wells responded with a letter which stated that her deposit on the option contract was given to the seller as consideration for executing the option, and that he was willing to "make every effort I can to negociate [sic] the matter with Allen. Negociations [sic] seemed to be the only possible course of action for recovery of your money." On November 26, 1975, Allen wrote to Bartlett wherein she stated that since Bartlett had executed the option agreement whereby she had agreed to "deligently [sic] pursue" the completion of the houses located on the property, she had breached the terms of the option contract. It further stated that since she had made demands for reimbursement of the $4,000.00 payment, that such action could only be interpreted as abandonment of the agreement, and that she (Allen) therefore declared the option contract null and void and was retaining the $4,000.00 as partial consideration for having executed the agreement. This letter was also prepared by Medlin for Allen's signature. (Testimony of Bartlett, Wells, Medlin, Kimmig, Petitioner's Exhibit 1) Wells and Medlin had previously agreed that they would split a 10 percent commission on any sale of Lots 10 and 12. After executing the purchase agreement on the property with First Merritt Mortgage Corporation, it was agreed between Wells and Medlin that Wells would receive $1,000.00 as a real estate commission. Allen had originally funded the $4,000.00 deposit to be made on the property by Medlin. Medlin had told her that she would receive Lot 7 if the deal was completed; however, he intended to give her only an "interest" in the lot. She received her original $4,000.00 back in October, 1975, when she signed the option agreement. The reasonable market value of Lot 7 was $6,000.00 to $8,000.00. The purported purchase of the property by International Land and Investment Corporation was not consummated on or before January 15, 1976, and the $4,000.00 was forfeited. Mrs. Bartlett never received return of the $4,000.00 which she had transmitted to Wells. (Testimony of Bartlett, Wells, Medlin, Raines, Kimmig)
Recommendation That the registration of International Land and Investment Corporation as a corporate real estate broker be suspended for a period of two years, pursuant to Section 475.25(1)(a), Florida Statutes. That the registration of Thomas F. Wells as a real estate broker be suspended for a period of two years pursuant to subsections 475.25(1)(a), (c) and (i), Florida Statutes. That the registration of Donna L. Allen as a real estate salesman be suspended for a period of six months, pursuant to Section 475.25(1)(a), Florida Statutes. DONE AND ORDERED this 20th day of December, 1978, in Tallahassee, Florida. Thomas C. Oldham Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Ralph Fetner, Jr. Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 International Land and Investment Corporation Walter L. Medlin Post Office Box 2252 Orlando, Florida 32802 Frank G. Finkbeiner, Esquire 341 N. Magnolia Avenue Orlando, Florida 32801 Donna L. Allen c/o Monarch Realty of Osceola Inc. 521 Vince Street Kissimmee, Florida 32741
