The Issue Whether Respondent is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction in violation of Section 475.25, Florida Statutes. Whether the license of Respondent should be revoked or suspended or whether Respondent should be otherwise disciplined.
Findings Of Fact Respondent is a registered real estate salesperson who holds License No. 0099812. She was employed as a "listing solicitor" by World Wide Property Services, Inc. (World Wide), a registered real estate broker (now dissolved), from March 10, 1976 through July 1, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide, except Florida. Seymour L. Rottman was President of World Wide, and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide was to secure listings of and purchasers for various Florida properties. Mr. Rottman was a subpoenaed witness for Petitioner at the subject hearing. During Respondent's period of employment, he and Mr. Small were in charge of hiring salesmen for the corporation and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out-of-state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call, and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide, who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide, which would be credited against a 10% commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one-year period, directs its efforts to bring about a sale of the property, advertise the property, as deemed advisable, in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval of the owner. During the course of the calls to prospects, Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen, including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls, Respondent had no further contact with the property owner. The listing fee was $325.00. The salesmen received approximately one-third of the fee, about $100.00 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script, but Respondent was not monitored at all times. During the course of operation of less than a year, World Wide secured about 200 listings and grossed approximately $80,000.00 to $90,000.00 in the "advance fee" listing, but no sales were made. Respondent failed to appear at the hearing, as noticed for March 8, 1976, at 1:00 p.m. Her hearing was continued until March 9, 1976, at 1:30 p.m., to give her an additional period of time in which to appear, but Respondent failed to appear. She did not dispute the charged filed by Petitioner in its administrative complaint. Petitioner contends that while a salesperson for World Wide, Respondent solicited and obtained listings by telephone from property owners and that as an inducement to list the property, she falsely represented that the property could be sold for a price far in excess of its purchase price, that a bona fide effort would be made to sell the property, and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property.
Recommendation Reprimand the Respondent in writing. DONE and ENTERED this 20th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission Post Office Box 1900 400 West Robinson Avenue Orlando, FL 32801 Kimberly Zimmerman 449 N.W. 8th Street Apt. 1 Miami, FL 33136
Findings Of Fact Respondent is a registered real estate salesperson who holds license no. 005050. She was employed as a "listing solicitor" by World Wide Property Services, Inc., a registered real estate broker (now dissolved) from January 30, 1976 to August 1, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida. Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman was subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased from. This was termed a "front" call and the salesman was termed as a "fronter." If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10% commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cataloging the information. The material also stated that advertising would be placed inn various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed," comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive." The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listing, but no sales were made. Respondent made no sales but did secure a limited number of listings. She testified she thought sales could be made. Respondent Malt had worked for another "advance fee" corporation and worked with World Wide Property Services, Inc. until it went out of business. She then worked for another "advance fee" organization. She testified that she believed the advertisements that foreign investors were interested in buying Florida property and would pay a high price for Florida land. Respondent testified that she read unusually from the script provided by the corporation. At the second call she would "raise up the price ten percent over the price originally given" because that is what she was instructed to do. Respondent had no supervising authority in the corporation for which she worked and testified that she never guaranteed the sale of property to anyone. Respondent never knew of any sales made by the broker and made no sales herself. Petitioner contends: that while a salesperson for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone from property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property. Respondent contends: that she did not know the "advance fee" operation was fraudulent; that World Wide Property Services, Inc. was a registered broker; that at the time of her employment the actions of her employer had not been held illegal; that she never misrepresented or fraudulently induced any potential customer to get their money.
Recommendation Reprimand the Respondent in writing. DONE and ENTERED this 19th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Salvatore A. Carpino, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Ms. Marian Malt 2750 Northeast 183rd Street Apartment 605 North Miami, Florida 33160 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, PROGRESS DOCKET NO. 3104 vs. DADE COUNTY DOAH CASE NO. 77-1576 MARIAN MALT, Respondent. /
The Issue The issue presented is whether Respondent should deny an application for a real estate broker's license on the grounds that the applicant pled nolo contendere to a crime involving moral turpitude, within the meaning of Subsection 475.25(1)(f), Florida Statutes (2004), was adjudicated guilty of the crime, and has not been rehabilitated.
Findings Of Fact Respondent is the state agency responsible for licensing real estate brokers and sales persons in the State of Florida, pursuant to Chapter 475, Florida Statutes (2003). Respondent has licensed Petitioner as a real estate sales person since July 1, 1996. Petitioner has also been licensed in the state as a mortgage broker since September 1, 1993. On June 25, 2004, Petitioner applied for a license as a real estate broker. On December 1, 2004, Respondent issued a Notice of Denial. The Notice of Denial proposes to deny the license application on specific grounds. The Notice limits the grounds for denial to those included in the following statement: The Florida Real Estate Commission has determined that the Applicant has been adjudicated guilty of crimes relating to the activities of a licensed broker or sales associate, and crimes of moral turpitude or fraudulent or dishonest dealing. Specifically it has found that the applicant . . . has been convicted of or found guilty of, or entered a plea of nolo contendere to: Contributing To The Delinquency of A Minor, 2001 During the hearing, Respondent stipulated that it does not seek denial of the application on the grounds that the alleged crimes relate to the activities of a licensed broker or sales associate or to fraudulent or dishonest dealing. Respondent relies solely on allegations that Petitioner pled nolo contendere to the misdemeanor charge of contributing to the delinquency of a minor; that the crime involved moral turpitude; and that Petitioner was adjudicated guilty and has not been rehabilitated.1 It is undisputed that Petitioner pled nolo contendere in 2001 to a first-degree misdemeanor in the Circuit Court of Charlotte County, Florida, for contributing to the delinquency of a minor. The factual allegations in the criminal proceeding were that Petitioner solicited a 13-year-old female (minor female) to pose topless or nude on August 2, 2001, when Petitioner was approximately 38 years old. It is undisputed that the minor female did not pose for Petitioner. The court adjudicated Petitioner guilty and withheld sentencing. Petitioner paid $353 in costs, served 75 hours of community service, and successfully completed probation of 12 months. The Notice of Denial does not allege that Petitioner actually committed the crime of contributing to the delinquency of a minor. Nor does the applicable statute require proof that Petitioner committed the acts alleged in the criminal proceeding as a prerequisite for denial in this proceeding.2 It is legally unnecessary to determine whether Petitioner is guilty of the crime to which he pled nolo contendere. The entry of the plea, by itself, is a sufficient statutory ground for the proposed denial. The plea does not operate statutorily as conclusive evidence that Petitioner committed the crime to which he pled nolo contendere.3 No finding is made in this proceeding that Petitioner either did or did not solicit the minor female. The court adjudicated Petitioner guilty, and this Recommended Order refers to the solicitation as the adjudicated solicitation. The threshold factual issue in this proceeding is whether the adjudicated solicitation involved moral turpitude. If so, it must be determined whether there is a rational connection between the moral turpitude and Petitioner's fitness to engage in the real estate business. If the requisite connection exists, it must be determined whether Petitioner has been rehabilitated and is not a "danger to the public." The adjudicated solicitation involved an act of moral turpitude. Solicitation of a 13-year-old female to pose topless or nude was a substantial deviation from the standard of conduct acceptable in the community, violated the duties owed to society, and was an inherently base or depraved act.4 The base or depraved nature of the adjudicated solicitation did not arise from a desire for monetary gain, as the motive typically is in other crimes, such as grand theft or the intent to sell controlled substances, that have been held to involve moral turpitude.5 Rather, the base or depraved nature of the adjudicated solicitation arose from an attempt to coerce the involuntary compliance of a minor female by exploiting her vulnerability; exploiting a financial relationship over which Petitioner enjoyed financial control; and exploiting a quasi- familial relationship in which Petitioner was imbued with the advantage of an authority figure.6 A person of common understanding would have known there was a substantial and unjustifiable risk that such conduct would encourage delinquency and that disregard of that risk was a gross deviation from an appropriate standard of conduct. At age 13, the minor female was nowhere near the 18 years of age required for legal majority. That vulnerability was accentuated during the adjudicated solicitation by Petitioner's age of 38. The minor female was also financially dependent on Petitioner for income as the family babysitter. Petitioner enjoyed the advantage of financial control of that relationship and possessed the power to terminate the relationship. Petitioner also enjoyed the benefit of an authority figure in a quasi-familial relationship. The minor female is the daughter of the brother of Petitioner's wife. The minor female is not legally the niece of Petitioner because the brother never married the mother of the minor female. The minor female is also a long-time friend of Petitioner's daughter. There is no direct evidence of actual intent to exploit the vulnerability of the minor female and any existing relationship. However, Petitioner should have known that the minor female was in a position of vulnerability and that the adjudicated solicitation necessarily exploited her vulnerability and the advantages he enjoyed in their relationship. A person of common understanding would have known there was a substantial and unjustifiable risk that the solicitation would tend to cause or encourage delinquency. The risk was of such a nature and degree that Petitioner's adjudicated disregard of that risk was a gross deviation from the appropriate standard of conduct.7 The moral turpitude evidenced by the adjudicated solicitation in 2001 is not rationally connected to the applicant's fitness to engage in the real estate business. Respondent admits that the adjudicated solicitation is not related to the activities of a licensed broker or sales associate and does not involve fraudulent or dishonest dealing. It is undisputed that the adjudicated solicitation did not impugn Petitioner's fitness to engage in the real estate business. From July 1, 1996, through the date of hearing, Petitioner has functioned as a licensed real estate sales person with no harm to the public before or after the adjudicated solicitation. Petitioner disclosed the adjudicated solicitation to Respondent sometime after June 25, 2004. Respondent did not prevent Petitioner from engaging in the real estate business as a sales person. Respondent cited no evidence or authority to support a finding or conclusion that the misdemeanor disqualifies Petitioner from performing the functions of a real estate broker, but does not disqualify Petitioner from performing the duties and responsibilities of a real estate sales person. As a mortgage broker, Petitioner maintains trust accounts and transfers client deposits to third parties, including surveyors and credit reporting agencies. The absence of a rational connection to the applicant's fitness to practice real estate imbues the allegation of moral turpitude with the potential for arbitrary and discriminatory denial of the license application.8 The potential for selective enforcement should be avoided. The issue of whether Petitioner has been rehabilitated is moot in the absence of a rational connection between an act of moral turpitude and the fitness to engage in the real estate business. If it were determined that a rational connection existed between the adjudicated solicitation in 2001 and the fitness of Petitioner to engage in the real estate business, Petitioner has been rehabilitated.9 Petitioner paid the required court costs, served the community service, and completed his probation. Petitioner is a father of three children, has been married for more than 16 years, is a licensed real estate sales person, a licensed mortgage broker, and has not exhibited a pattern or practice of violations before or after the incident on August 2, 2001. Rather, the incident in 2001 stands alone as the only blemish on an otherwise flawless professional record as a real estate agent and a mortgage broker. The issuance of a broker's license to Petitioner does not frustrate legislative intent. The issuance of a license does not expose the public to a dishonest real estate broker that engages in fraudulent practices. The crime for which Petitioner was adjudicated guilty does not impugn the honesty of Petitioner or his ability to deal fairly with the public in the real estate business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the license application. DONE AND ENTERED this 25th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2005. 1/ Transcript at pages 44-45. 2/ The last sentence in Subsection 475.25(1)(f), Florida Statutes (2003), states that the court record of conviction is prima facie evidence of guilt. However, the statutory language preceding the last sentence does not expressly require proof of guilt as a prerequisite for denial. The last sentence appears to be a vestige from former statutory language that required a plea of nolo contendere to be treated as a conviction. The legislature deleted the former statutory language from the current statute, but, so far, has not deleted the remaining vestige of the former statute. The issue is discussed further in the Conclusions of Law. If proof of guilt were a statutory prerequisite for denial, evidence Petitioner submitted to overcome the prima facie showing of guilt or to mitigate the prima facie showing of guilt is neither credible nor persuasive to the trier of fact. The relevant evidence consists of Petitioner's own testimony and hearsay statements that the testimony attributes to the minor female, members of her family, and others. The hearsay did not supplement or explain competent and substantial evidence within the meaning of Subsection 120.57(1)(c), Florida Statutes (2003). 3/ Cf. McNair v. Criminal Justice Standards and Training Commission, 518 So. 2d 390, 391 (Fla. 1st DCA 1987)(plea is not statutorily evaluated as conclusive evidence of the commission of wrongdoing but is, by itself, statutorily sufficient for disciplinary action). This issue is discussed further in the Conclusions of Law. 4/ Neither party cited an applicable statute or rule that defines moral turpitude. Judicial decisions generally hold that moral turpitude involves: . . . the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted) It has also been defined as anything done contrary to justice, honesty, principle, or good morals. . . . State ex rel. Tullidge v. Hollingsworth et al., 108 Fla. 607, 146 So. 660, 611 (Fla. 1933). 5/ Judicial decisions finding moral turpitude in the exploitation of others for monetary gain are discussed in the Conclusions of Law. 6/ Judicial decisions discussing exploitation of vulnerable persons in professional relationships are discussed further in the Conclusions of Law. 7/ Culpable knowledge is an element in the judicial definition of contributing to the delinquency of a minor. State v. Shamrani, 370 So. 2d 1, 2 n.3 (Fla. 1979); Kito v. State, 888 So. 2d 114, 116 (Fla. 4th DCA 2004). 8/ By analogy, the Florida Supreme Court has held that a rational connection to an applicant's fitness to practice law must be applied to the requirement for good moral character or the requirement could become "a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458-459 (Fla. 1978). 9/ Counsel for Respondent questioned Petitioner in an unsuccessful attempt to show that Petitioner currently lacks veracity and is therefore dishonest. Counsel stipulated that the grounds for denial do not include dishonesty or fraudulent practices. The attempt to show current dishonesty is relevant only to the issue of rehabilitation. See Transcript at pages 36-51. 10/ The agency action in McNair was mandatory but is discretionary in this proceeding. The substantially affected party in McNair pled nolo contendere to a felony while Petitioner entered a similar plea to a misdemeanor. However, those factual distinctions are not material to the absence in the applicable statute of the former statutory infirmity that spawned the requirement of proof of guilt in Ayala and Son. 11/ Unlike the facts in the instant case, the holding in some of the cited cases are arguably ambiguous in that the allegations recite all of the grounds in the applicable statute, and it is not clear in every case whether the decision is restricted to allegations of moral turpitude. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 419 West Vine Street Kissimmee, Florida 34741 Guy Sanchez, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether or not the Respondent, State of Florida, Department of Revenue, is entitled to documentary stamp tax in accordance with Section 201.02, Florida Statutes, in the amount of $326.10 and penalty in the like amount of $326.10 in accordance with Section 201.17, Florida Statutes, for a transaction between Petitioners in an assignment of interest of Gallagher's of Miami, Inc., to the Petitioners.
Findings Of Fact The Petitioners were the stockholders of Gallagher's of Miami, Inc. Among the assets of Gallagher's of Miami, Inc., were the rights under a sublease undertaken between B.G.L. Corporation and Gallagher's of Miami, Inc. dated September 25, 1976 and recorded in Official Record Book 5663, at page 261 of the Public Records of Dade County, Florida. This sublease was an amendment to a sublease which was dated June 1, 1976, recorded in Official Record Book 4768, Page 176 of the Public Records of Dade County, Florida, between B.G.L. Corporation, a Florida corporation as lessor, and KSJ Corporation, a Florida corporation as lessee. One of the conditions of Gallagher's lease obligation was responsibility for the payment of a mortgage dated May 1, 1965, recorded in Official Record Book 4592, at Page 161, of the Public Records of Dade County, Florida, from KSJ Corporation, a Florida corporation to Joseph Z. Lipsky and Evalyn Lipsky, as amended by agreement dated August 30, 1965 between KSJ Corporation and Joseph Z. Lipsky and Evalyn Lipsky. Pursuant to a plan of liquidation of Gallagher's of Miami, Inc. that corporation executed and delivered to Petitioners an assignment of the lessee's interest in the aforementioned lease to which Gallagher's of Miami, Inc. was a party. The assignment of lease can be found as Exhibit A to the Petition filed by the Petitioners. The contents of such assignment are found to be fact. By letters of July 30, 1975 and March 10, 1975, the Respondent indicated its intention to assess tax in the amount of $326.10 upon the document representing the assignment between Gallagher's of Miami, Inc. and the Petitioners. The amount of documentary stamp tax was premised on the aforementioned mortgage which at the time of the proposed assessment was valued at $108,750. In addition the Respondent indicated its intention to impose a penalty in a like amount of $326.10. The assignment was in fact executed, pursuant to a plan of liquidation, which plan is shown as Petitioners' Exhibit C attached to the petition. The Petitioners' Exhibit C is established as fact. Petitioners in receiving the assignment in liquidation of Gallagher's of Miami, Inc. received such assignment in proportion to their stock holdings in that corporation. The assessments of $326.10 for documentary stamp tax and $326.10 in penalty on such assessment, and the challenge to the assessments are the subject matter in this cause. Subsequent to the assignment of leases and agreement between Gallagher's of Miami, Inc. and the Petitioners a further assignment was made between the Petitioners and Stan-Mil, Inc. of the same property which took place on December 16, 1974.
Recommendation It is recommended that the assessment of documentary stamp tax under 201.02 F.S. in the amount of $326.10 and the penalty in the amount of $326.10, as a penalty pursuant to 201.17 F.S. be set aside. DONE and ENTERED this 28th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1977. COPIES FURNISHED: Lewis M. Kanner, Esquire Williams, Salomon, Kanner & Damian 1003 DuPont Building 169 East Flagler Street Miami, Florida 33131 Caroline C. Mueller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 =================================================================
The Issue The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of $5,000 without the payment of interest. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds. Respondent made repeated promises to repay Ms. Martinez the sum of $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales. DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 America Canizales 158 West 10th Street Hialeah, Florida 33010 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
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 dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of February, 1999.
Findings Of Fact At all times material hereto, Defendant was registered with Plaintiff as an active broker, holding certificate NO. 0182756. On or about October 4, 1976, a Contract for Sale of Real Estate ("the contract") was entered into between Merit Properties Corporation as seller, Frances G. Williams ("the buyer") as buyer, and Defendant as "agent." The contract was for purchase and sale of certain real property and improvements located in Tampa, Florida. The contract provided that purchase of the property was contingent upon the buyer qualifying for and obtaining an FHA mortgage in the amount of $20,850. At the time the contract was signed, the Defendant obtained a $300.00 deposit from the buyer, and at some later date, accepted an additional deposit of $550.00, making a total deposit of $850.00 toward the purchase price of the property. The contract provides that the deposit shall apply as part of the purchase price of the property "...and shall be held by said Agent in escrow pending closing of [the] transaction..." In addition, the contract provides that upon closing of the transaction "[t]he Seller agrees to pay said Agent a sum equal to 7 percent of the purchase price as commission...." Finally, the contract contained a provision indicating that "[n]o agreements, unless incorporated in this contract shall be binding upon the Agent, Buyer, or, Seller." Sometime in late 1976, the buyer applied to Mortgage Associates, Inc. for an FHA mortgage. On or about November 5, 1976, this application was rejected. On or about November 29, 1976, the buyer again applied for an FHA mortgage, this time through Charles F. Curry and Company. This mortgage application was rejected on December 10, 1976. Defendant was aware that the buyer had applied for an FHA mortgage through Charles F. Curry and Company. Written notification of rejection of the buyer's application through this company was sent to the buyer, but a copy was not forwarded by Charles F. Curry and Company to Defendant. The record establishes, however, that Charles F. Curry and Company's general practice was to notify real estate brokers involved in financing transactions of the disposition of mortgage loan applications. Defendant denies receiving any such notification from Charles F. Curry and Company. On several occasions, after the aforesaid rejections of the buyer's mortgage loan applications, the buyer attempted to contact Defendant by telephone, but was unsuccessful in these attempts. Subsequently, on February 21, 1977, the buyer orally advised Defendant that her mortgage loan application had been rejected, and requested return of her $850.00 deposit. When Defendant did not return the deposit, the buyer retained an attorney to assist her in recovering her deposit. Finally, pursuant to a Compromise and Settlement Agreement dated September 5, 1978, Defendant returned the buyer's deposit of $850.00, together with an additional $100.00 as accrued interest. However, of this $950.00 total, the buyer received only $650.00. The remaining $300.00 constituted a fee which the buyer had to pay to her attorney for services rendered in recovering the deposit. Defendant was a substantial owner of Merit Properties Corporation, the purported seller of the real property here involved. Evidence of record in this proceeding clearly establishes that Defendant did not deposit the $850.00 earnest money deposit received from the buyer in an escrow account maintained either in his own name or in the name of Merit Properties Corporation. In fact, Defendant admits that the $850.00 deposit was used to make improvements to the real property which was the subject matter of the contract. Defendant contends that he received the earnest money deposit from the buyer as an officer of Merit Properties Corporation, and that he had an oral understanding with the buyer entered into prior to the execution of the contract that the money so received would note be held in escrow, but would be used to make improvements on the property. These contentions are not supported by the evidence and are specifically rejected. The record clearly establishes that during negotiations leading to the signing of the contract, Defendant informed the buyer that he was a real estate broker. In addition, the record also establishes that Defendant prepared the contract, and was therefore responsible for the wording of that document. The contract clearly provides that Defendant acted as "agent" for Merit Properties Corporation, and that as such, he was to receive a 7 percent commission on the purchase price at the closing of the transaction. By the very terms of the contract, therefore, Defendant was acting in the capacity of a real estate broker in this transaction. In addition, the contention that there existed an oral agreement between Defendant and the buyer prior to the signing of the contract to use the deposit money for construction purposes is not supported by the evidence of record in this proceeding, and, in fact, is directly contrary to the language contained in the contract document prepared by Defendant. Finally, Defendant contends that he never refused to return the buyer's deposit, but informed her that the deposit would be returned upon the buyer furnishing to Defendant both a copy of correspondence rejecting the buyer's mortgage loan application, and a "release." There is no provision in the contract involved in this transaction which would require the buyer to furnish Defendant any sort of "release", or to furnish notice of inability to obtain the necessary financing in any specific form. Thus, oral demand for return of the deposit was clearly permissible under the terms of the contract. Further, Defendant was aware of the fact that the buyer had applied for mortgage financing through Charles F. Curry and Company, and therefore could either have obtained a copy of the rejection of the buyer's mortgage loan application himself had he chosen to do so, or could at the least have inquired of that company as to the disposition of the buyer's application. Both Plaintiff and Defendant have submitted Proposed Findings of Fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as having been irrelevant to the issues in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Board of Real Estate, suspending Defendant's real estate broker's license No. 0182756 for a period of sixty (60) days from the date of final agency action in this proceeding. DONE and ENTERED this 21st day of July, 1980, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Gwynne A. Young, Esquire Post Office Box 3239 Tampa, Florida 33601 ================================================================= AGENCY MEMORANDUM ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone 904-488-6692 MEMORANDUM TO: C. B. Stafford, Executive Director, Board of Real Estate E. B. Ashley, Administrator on Investigations FROM: John Huskins, Assistant General Counsel SUBJECT: FINAL ACTION - Suspension PD 3402 (DOAH 79-744) James E. Black, Broker 182756-1 DATE: February 6, 1981 This is to advise you that by FINAL ORDER dated September 15, 1980 (copy attached) the license of James E. Black was suspended for six (6) months, effective October 16, 1980, provided no appeal was taken. Black did appeal. January 21, 1991 the Appellate Court entered its ORDER dismissal of appeal (copy attached), therefore, suspension became effective immediately. Broker Black, through his lawyer, delivered to me Black's Certificate Number: 182756, as individual broker Certificate Number: 182755, as corporate-Best Opportunity Realty Corporation. both of which are attached to this memo to C. B. Stafford. It is suggested that revocation records be updated to reflect suspension and the effective date. It is further suggested that investigation be made as necessary to determine if James E. Black is in fact refraining from real estate activities, in compliance with his suspension. JH/pkr Enclosures* cc: Mr. Michael Schwartz, General Counsel Susan Penquite, Central Files Mr. Fred Wilson, Assistant General Counsel Ms. Renata Hendrick, Supervisor of Records * NOTE: Enclosures noted are not available at the Division and therefore not a part of this ACCESS document.
The Issue Whether the Respondent is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction in violation of Section 475.25, Florida Statutes. Whether the license of Respondent should be revoked or suspended or whether the Respondent should be otherwise disciplined.
Findings Of Fact Respondent is a registered real estate salesperson who holds license no. 0075657. He was employed as a "listing solicitor" by World Wide Property Services, Inc., a registered real estate broker (now dissolved) from August 7, 1975 through April 23, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida. Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman was a subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cateloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listings, but no sales were made. Respondent made no sales but did secure a limited number of listings making approximately $250 - $400 during the time of his employment. Respondent testified that he had worked for another corporation that took advance fees. The reading from the script heretofore referred to as "front" and "drive" was usually done by someone else. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. He stated that he told the clients the "advance fee" was for expenses and did not tell them that part of it would be his commission. He was a personal friend of the President of World Wide Property Services, Inc., but had no supervisory capacity in the corporation for which he worked. He stated that calling a person back and increasing the amount previously mentioned by 10 percent would put "just a little zip into it. This has been done ever since I have been in the real estate business." Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property. Respondent contends: that he never misrepresented or fraudulently induced any potential customer to send in advance fees because he operated as others do in the real estate business and the property was salable and he thought foreign investors were interested.
Recommendation Reprimand the Respondent in writing. DONE AND ENTERED this 21st day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Salvatore A. Carpino, Esquire Sanford Scott Rothman Florida Real Estate Commission 425 Surfside Boulevard Post Office Box 1900 Surfside, Florida 33154 Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, PROGRESS DOCKET NO. 3101 vs. DADE COUNTY DOAH CASE NO. 77-1573 SANFORD SCOTT ROTHMAN, Respondent. /
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the office of the Comptroller and the Department of Revenue honor the claims for refund of the documentary stamp taxes in the amount of $1,027.50 and the surtax stamp taxes in the amount of $376.75, refunding these amounts to the Petitioner. DONE AND ORDERED this 12th day of September, 1978 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Maxie Broome Assist Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 G. Kristin Delano, Esquire Post Office Box 180 St. Petersburg, Florida 33731
