The Issue The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.
Findings Of Fact At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can." Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December 14 closing. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000. ENTERED this 23 day of May, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Attorney Raymond O. Bodiford P.O. Box 1748 Orlando, FL 32802 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent engaged in acts and/or conduct amounting to fraud, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction for which his real estate license should be disciplined.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to, inter alia, Chapters 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, John Wilson Claffey, is now and was at times material hereto, a licensed real estate salesperson in Florida, having been issued licensed number 0419730. The last license issued was as a salesperson, c/o Venice Properties and Investments, Inc., 628 Cypress Avenue, Venice, Florida. During 1985, Respondent and Mary Lou Retty (Retty), while Respondent was acting as the licensed general contractor in the employ of Venice Construction Management, Inc., entered into a verbal agreement to build five commercial structures (for Retty) in Venice, Florida. The agreement provided that Respondent would charge Retty actual costs plus a supervisory fee for each building. Respondent built the first two buildings as agreed in keeping with the projections he provided Retty. However, a dispute later arose between Respondent and Retty during construction of the third building about some of the billings and other accounting practices with the end result that Retty suspected that Respondent was overcharging by falsifying invoices and purchasing materials which were used for other projects, but were charged to the building he was erecting for Retty. During 1986, Retty filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit for Sarasota County, Florida. Retty's object was to recover monies that she suspected Respondent had misappropriated and wrongfully charged to her project. On April 25, 1990 and June 28, 1990, Retty obtained two final judgments. The first judgment ordered Respondent to pay Retty $40,263.47 and the second final judgment ordered him to pay her the sum of $10,263.47 for civil theft, attorney fees and court costs. The interest rate for both judgments was 12% per annum. (Petitioner's Exhibits 1-4.) During counsel's preparation and discovery for trial, it became evident that Respondent altered several billing invoices which he sought to collect from Retty. Respondent submitted falsified invoices and charged Retty for materials that he used on other projects. Respondent unsuccessfully appealed the final judgments. To date, Respondent has not paid any of the monies he was ordered to pay in the final judgments referenced herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent engaged in proscribed conduct as alleged and that his real estate license be suspended for seven (7) years. It is further RECOMMENDED that Respondent Claffey pay an administrative fine of $1,000.00 to Petitioner within thirty (30) days of the entry of its Final Order. DONE and ORDERED this 29th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1993. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John Wilson Claffey 312 Venice Avenue East #126 Venice, Florida 34292 Darlene F. Keller/Executive Director Florida Real Estate Commission Hurston Building-North Tower 400 West Robinson Street Orlando, Florida 32801 1772 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989.
The Issue The issues are as follows: (a) whether Respondent acted as a real estate agent/sales associate without being the holder of a valid and current real estate license in violation of Section 475.42(1)(a), Florida Statutes, and therefore, in violation of Section 455.228, Florida Statutes; and, if so, (b) what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to Chapters 455 and 475, Florida Statutes. As such, Petitioner is authorized to prosecute cases against persons who operate as real estate agents/sales associates without a real estate license. At all times material, Respondent was not a licensed Florida real estate agent/sales associate or broker. From January 2005 to June 2007, Respondent worked as a secretary/administrative assistant to Gail Gee, licensed Florida real estate agent and broker affiliated with Tradewinds of Mandalay, Inc., trading as Tradewinds Realty, a brokerage corporation located in or near Crystal River, Florida. Respondent was not the only secretary in the office. In 2005, Ms. Gee had three real estate sales offices. The offices were located in Beverly Hills, Ozello, and Crystal River, Florida. Respondent began working at Ms. Gee's main office in Ozello, Florida. Ms. Gee was at that office seven days a week in 2005. Ms. Gee paid Respondent hourly wages. Respondent's duties included the following pursuant to Ms. Gee's instructions: (a) answering the phone and taking messages; (b) faxing documents and e-mail listings; (c) placing advertisements; (d) drafting contracts; and (e) researching public property records. Ms. Gee took Respondent to a convention so they could participate in a class where the need for an agent to have a policy and procedure manual was discussed. Ms. Gee bought a computer disc of the proposed manual and subsequently used it to create one of her own. Ms. Gee had all of her associate agents and employees sign the manual. The manual advised the employees, including Respondent, what they could and could not do. Sometime before February 2005, Bruce Sculthorpe of Ann Arbor, Michigan, found some property in Citrus County, Florida, listed for sale on the internet. One property was located at 9844 North Burr Oak Terrace, in the Crystal Manor area of Crystal River, Florida. The other property consisted of two lots, Lots 206 and 207, in Waterman Subdivision, in Citrus County, Florida. Mr. Sculthorpe then contacted Ms. Gee to make further inquiries about the properties. On or about February 7, 2005, Bruce and Julie Sculthorpe brought the property located at 9844 North Burr Oak Terrace from Mary Lynn Netzel, for $25,063.50. As a result of this transaction, Ms. Gee received a commission in the amount of $2,500. The Sculthorpes bought the property without seeing it. On or about February 8, 2005, the Sculthorpes listed their property located at 9844 North Burr Oak Terrace, Crystal River, Florida, with Ms. Gee. The exclusive listing agreement indicates that the sale price for the property was $75,000 and that the Sculthorpes agreed to pay Ms. Gee a 10 percent commission. Later in February 2005, Mr. Sculthorpe learned that Respondent worked for Ms. Gee. Neither Ms. Gee nor Respondent ever represented to the Sculthorpes that Respondent was a licensed real estate agent. In March or April of 2005, Julie Sculthorpe came to Florida to see the property located at 9844 North Burr Oak Terrace for the first and only time. Ms. Sculthorpe made the trip with two female friends. Ms. Sculthorpe was over an hour late to her appointment with Ms. Gee who had another appointment pending. Ms. Gee understood that Ms. Sculthorpe just wanted to see her property and was not interested in purchasing property or doing any business. Ms. Gee introduced Ms. Sculthorpe to Respondent as her secretary/assistant. Ms. Gee asked Respondent to use Ms. Gee's van to take Ms. Sculthorpe and her friends to see the Sculthorpes' property and the surrounding properties because they were unfamiliar with the area. Respondent did not "show" Ms. Sculthorpe other properties with the intent to interest the Sculthorpes in future purchases. The trip consisted of going to 9844 North Burr Oak Terrace and back without stopping anywhere else to look at property. During the trip to 9844 North Burr Oak Terrace, Ms. Sculthorpe was not impressed with the surrounding property. She indicated that she and her husband would not be interested in property that looked like "Sanford and Son," with "trailers and license plates in their decorative stuff all over the front of their yards and stuff." Respondent did not advise Ms. Sculthorpe to lower the price on the property located at 9844 North Burr Oak Terrace in order to sell it quickly. Ms. Gee eventually made that suggestion to the Sculthorpes. The record is silent regarding the circumstances of the Sculthorpes’ purchase of property in the Waterman subdivision. On or about June 28, 2005, the Sculthorpes listed their properties, Lots 206 and 207, in the Waterman Subdivision, Crystal River, Florida, with Ms. Gee. The listing price for each lot was $175,000. The Sculthorpes agreed to pay Ms. Gee a commission in the amount of 8 percent on each lot. On or about August 1, 2005, Gustavo Roperto and Nathalie Roperto of West Palm Beach, Florida, bought property located at 9844 North Burr Oak Terrace, Crystal River, Florida, from the Sculthorpes for the contract sales price of $70,000. As a result of this transaction, Tradewinds Realty and Exit Realty, of Naples, Florida, each received $2,800 in commission. The Sculthorpes made about $40,000 in profit in about six-months time. Ms. Gee negotiated the sale price of the property located at 9844 North Burr Oak Terrace. Respondent's only involvement in the sale was in facilitating communication between the Sculthorpes and Ms. Gee. Respondent did not locate the buyers, Mr. and Mrs. Roperto, or make any decision or make any statement about the property to the Sculthorpes, other than as instructed by Ms. Gee. On September 3, 2005, Julie Sculthorpe's son died. Mr. Sculthrope had subsequent conversations with Respondent regarding the need to find a home for the deceased son's dogs. Later, Mr. Sculthorpe talked to Respondent about other personal matters, like finding a Christmas gift for his wife, Julie Sculthorpe. On or about September 21, 2005, the Sculthorpes signed a contract to purchase property located at 1106 South Ozello Trail in Citrus County, Florida, from Willard Radcliffs of Brooksville, Florida. The property is also described as Lots 9 and 10, St. Martians Esturary Retreats, Unit 1, in Citrus County, Florida. The Sculthorpes agreed to pay Mr. Radcliffs $285,000.00 for the property. The sales contract indicated that Tradewinds Realty would receive commissions as the selling and listing real estate agent. The sale of the property located at 1106 South Ozello Trail closed on October 27, 2005, giving the Sculthorpes title to the property. Tradewinds Realty received a commission in the amount of $17,000 for the sale of the property. On or about October 7, 2005, the St. Lucie Development Corporation, located in Vero Beach, Florida, bought property described as Lot 206, Waterman Subdivision in Crystal River, Florida, from the Sculthorpes for the contract sales price of $160,000. As a result of this transaction, Tradewinds Realty and Kevin S. Hawkins each received commissions in the amount of $6,400. On or about October 7, 2005, Orion Property and Sales, Inc., located in Ft. Pierce, Florida, bought property described as Lot 207, Waterman Subdivision in Crystal River, Florida, from the Sculthorpes for the contract sales price of $160,000. As a result of this transaction, Tradewinds Realty and Kevin S. Hawkins each received commissions in the amount of $6,400. Lots 206 and 207, located in the Waterman Subdivision in Crystal River, Florida, are sometimes referred to in the record as the Hunt Point Lots. There is no persuasive evidence that Respondent had any involvement in the sale of the Hunt Point property to St. Lucie Development Corporation and to Orion Property and Sales, Inc., other than as instructed by Ms. Gee. On or about November 15, 2005, the Sculthorpes listed the property located at 1106 Ozello Trail (Lots 9 and 10 in St. Martians Estuary Retreats) for sale with Ms. Gee. The Sculthorpes signed on exclusive listing agreement to sell Lot 9 for $249,000. They signed another exclusive listing agreement to sell Lot 10 for $249,000. In both agreements, the Sculthorpes agreed to pay Ms. Gee a commission in the amount of 8 percent. Ms. Gee subsequently advertised Lot 9 in St. Martians Estuary Retreats as for sale for $214,000. At the time of the hearing, the Sculthorpes still owned the property located at 1106 Ozello Trail (Lots 9 and 10 in St. Martins Esturary Retreats). When the Sculthorpes purchased the property at 1106 Ozello Trail, there was a stilt house on one lot and a screened enclosure with a fireplace on the other lot. The Sculthorpes paid to have both structures removed before listing the lots for sale. Respondent was not involved in finding someone to remove the structures for Bruce and Julie Sculthorpe. Respondent began working part-time for another real estate broker/developer, John Holdsworth, sometime toward the end of 2005. Mr. Holdsworth owned a restaurant across the street from Ms. Gee's office. Mr. Holdsworth hired Respondent to manage the restaurant because of her prior experience owning and operating a pizzeria. Ms. Gee and Mr. Holdsworth paid Respondent by the hour for time spent in each respective business. Ms. Gee hired another secretary around December 2005, to do the work Respondent no longer had time to do. During his business relationship with Ms. Gee, Mr. Sculthorpe would call her, repeatedly asking, "What's next?" He also called Respondent repeatedly, wanting information about his properties or just to discuss his personal life. Mr. Sculthorpe used e-mail and Instant Messaging so much that, on one occasion, Ms. Gee instructed Respondent to turn off the computer so she could get other work done. Ms. Gee and Respondent were not the only people in the office answering Mr. Sculthorpe's calls. Other secretaries in the office answered some of the calls. On some occasions, the office staff would look at each other and ask who wanted to take the call. On other occasions, Respondent placed Mr. Sculthorpe's call on speakerphone. Mr. Sculthorpe "would talk and talk and talk and talk" while Respondent continued to do her work. At some point in time, Mr. Sculthorpe advised Respondent that he did not like paying commissions to Ms. Gee. Respondent then recommended that Mr. Sculthorpe take the same real estate licensure course that she was taking. Respondent gave Mr. Sculthorpe the web site for the real estate school. At some point in time, Mr. Sculthorpe's sister-in-law, Linda Wilkinson went to Crystal River. Ms. Wilkinson was a real estate agent in another state. Ms. Gee showed Ms. Wilkinson some property located in an area known as Bimini Bay. Respondent never met with or talked to Ms. Wilkinson. During the hearing, Mr. Sculthorpe testified that Respondent encouraged him to buy another piece of property. According to Mr. Sculthorpe, Respondent asked him to refer her to another buyer after he refused to buy the property. Mr. Sculthorpe's testimony in this regard is not persuasive. Toward the end of the Sculthorpes' relationship with Ms. Gee, Respondent was still working only part-time with Ms. Gee. After Mr. Holdsworth closed the restaurant, Respondent continued to work for Ms. Gee. In June 2006, Ms. Gee moved Respondent from the Ozello office to a new office that became Ms. Gee's primary office. In June 2007, Respondent quit working for Ms. Gee because she could no longer afford to pay Respondent a salary. At $33 per hour for an investigator's time, Petitioner spent $412.50 investigating this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is Recommended: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010. COPIES FURNISHED: Jennifer Leigh Blakeman, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Cara S. Cacioppo 5756 West Costa Mesa Lane Beverly Hills, Florida 34465 Heather A. Rutecki, Esquire Rutecki & Associates, P.A. Bank of America Tower 100 Southeast Second Street, Suite 2950 Miami, Florida 33131 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, prior to being licensed as a real estate salesman, committed, among other things, fraud and misrepresentation in violation of Section 475.25(1) and negligence in violation of Section 475.25(3), Florida Statutes (1978), by selling promissory notes which he represented were secured by first mortgages, when they were, in fact, secured by subordinate mortgages; and, if so, the appropriate disciplinary penalty which should be imposed by the Board of Real Estate.
Findings Of Fact Respondent Evers qualified for, and was issued real estate salesman's license no. 0132634 by the Board on June 28, 1974. His license, at his request, has been placed on inactive status since April, 1979. (Testimony of Evers, P.E. 1) During 1972 and 1973, Evers was a mortgage broker and registered security salesman licensed by the Florida Division of Finance and Department of Banking and Finance, Division of Securities. He was employed as a mortgage broker and security salesman by the Washington Development Corporation, with headquarters in St. Petersburg, Florida. (Testimony of Evers, P.E. 2) As a mortgage broker and security salesman, Evers agreed to advertise and sell promissory notes, secured by what purported to be first mortgages, prepared and executed by the Washington Development Corporation ("Corporation"). He was to receive a commission on each completed sale. The Corporation supplied Evers with advertising forms and its promissory notes and mortgage forms. Its salesman, Gary George, taught him how to effectively explain and sell the notes and mortgages, and pointed out the express provision in the mortgage form where the Corporation covenants that the property covered by the mortgage was free and clear of all encumberances except real estate taxes. . . ." George advised Evers to inform prospective purchasers that they would receive a first mortgage, advice which Evers customarily followed. Evers' representations made in connection with sales to Gerald Pendry, Richard C. Tymick, and Eva Baird form the basis for this disciplinary proceeding. [SALE OF NOTE AND MORTGAGE TO GERALD PENDRY] On April 1, 1973, Evers sold to Gerald C. Pendry and his wife a promissory note, with mortgage executed by the Corporation in the amount of $2,000. The mortgage covered Lot 1, Block 18, of the Carlton Village subdivision, Lake County7 Florida. The note obligated the Corporation to pay Pendry 1 percent interest per month, over a period of 24 months. The mortgage, on its face, purported to be a first mortgage. In negotiating the sale with Pendry, Evers expressly represented that the mortgage securing the note was a first mortgage, and such representation induced Pendry to purchase the note. (Testimony of Pendry, Evers, P.E. 4) Subsequently, the Corporation defaulted on its payments; when Pendry brought a foreclosure action against the mortgaged property, he learned that his mortgage was subordinate to a prior and superior mortgage held by Melvin J. Haber. As a result of his subordinate mortgage, Pendry suffered financial loss. (Testimony of Pendry, P.E. 3) [SALE OF NOTE AND MORTGAGE TO RICHARD C. TYMICK] On March 1, 1973, Evers sold to Richard C. Tymick and his wife two promissory notes, one in the amount of $2,500 and the other in the amount of $2,900, each executed and secured by a mortgage given by the Corporation. The mortgages securing the notes covered Lot 8, Block 41, and Lot 12, Block 22, Carlton Village subdivision, Lake County, Florida. The notes obligated the Corporation to pay interest of 1 percent per month over a 48-month period. In negotiating the sale of the two notes, Evers led Tymick to reasonably believe that the notes were secured by first mortgages. (Testimony of Tymick, P.E. 5) The Corporation subsequently defaulted on its payments under the note. When Tymick Instituted a foreclosure proceeding, he learned that his mortgages were subordinate and inferior to a prior mortgage covering the same property held by Melvin Haber. Because of the subordinate nature of his mortgage, Tymick suffered financial loss. (Testimony of Tymick, P.E. 3) [SALE OF NOTE AND MORTGAGE TO EVA BAIRD] On or about October 20, 1972, Evers sold two Corporation promissory notes, secured by mortgages, to Eva R. and Joseph T. Baird. The notes were issued in the total amount of $10,000. The mortgages covered lots located in the Carlton Village subdivision, Lake County, Florida, and Evers affirmatively represented to Eva Baird that they were first mortgages. Without such representation, Eva Baird would not have purchased the promissory notes in question. (Testimony of Eva Biard, P.E. 6) Tie Corporation eventually defaulted on its payments under the notes. It was not until Eva Baird initiated a foreclosure proceeding against the properties that she learned her mortgages were subordinate and inferior to prior mortgages covering the same properties. As a result of her inferior mortgages, she suffered financial loss. (Testimony of Eva Baird) In 1975, the Department of Banking and Finance, Division of Securities, brought a disciplinary action against Evers alleging that he committed fraud by selling the Corporation mortgages and notes to certain persons, including Pendry, Tymick and Baird. After a formal evidentiary hearing, the Department entered a final order dated December 22, 1976, concluding that Evers, by failing to disclose the existence of prior mortgages and ensure that the mortgages were first mortgages (as he represented), committed fraud and a violation of Section 517.301, Florida Statutes. As a result, the Department suspended Evers' security salesman's license for a period of one year. (P.E. 2) At the time he sold the notes and mortgages to Pendry, Tymick and Baird, Evers did not know that the Corporation's mortgages were not, in fact, first mortgages; he believed and wholly relied on Gary George's assurances to him that the mortgages were what they purported to be-first mortgages. He made no attempt to investigate or independently verify the status of these mortgages. Evers, however, had no intent to falsely represent these mortgages to the purchasers; neither did he intend to mislead or deceive them. (Testimony of Evers) [EVIDENCE IN MITIGATION] Evers did not learn that the mortgages in question were not first mortgages until the latter part of 1974. He then made an honest effort to notify and assist those persons who had purchased Corporation notes and mortgages through him. He helped to arrange legal representation for them and defray the cost of having abstracts of title prepared. (Testimony of Evers, R.E. 1-8) Evers suffered considerable financial loss and interruption of Iris livelihood because of his sale of Corporation mortgages and notes. Because he had also purchased a Corporation mortgage which later turned out to be other than a first mortgage, he lost $2,700. Because of the Board's investigation and prosecution of this case, he placed his real estate salesman's license on inactive status to avoid embarrassment to his employer. (Testimony of Evers) There is no evidence to indicate that Evers has been other than a competent and conscientious salesman since obtaining his real estate salesman's license in 1974. A registered real estate salesman who worked with Evers described him as an exceptional salesman who paid close attention to details and made a special effort to keep clients advised of his progress. (Testimony of James Bradfield)
Recommendation Conclusion: The Board is without statutory authority and jurisdiction to discipline the Respondent for misconduct which occurred prior to his being licensed as a real estate salesman. The Amended Administrative Complaint, and the charges therein, should he dismissed. Recommendation: That the Board dismiss its Amended Administrative Complaint. Background By Amended Administrative Complaint filed January 18, 1979, the Petitioner Hoard of Real Estate ("Board") charged Respondent Dovard J. Evers ("Evers") with three counts of violating Sections 475.25(1)(a) and 475.25(3), Florida Statutes (1978), by selling notes which he represented were secured by first mortgages when, in fact, they were secured by second mortgages. The alleged misconduct occurred during 1972 and 1973, before Evers qualified for and received his real estate salesmans license. On February 6, 1979, Evers timely requested a Section 120.57 hearing to dispute the allegations in the Board's Administrative Complaint and filed a Motion to Quash Complaint. After oral arguments, Evers' Motion to Quash was denied by the Board on March 14, 1979. It was not until February 13, 1980, that Evers' request for a hearing was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer. The final hearing was initially set for April 15, 1980. On April 11, 1980, upon motion of the Board and without objection by Evers, the hearing was continued in order to allow the Board to reconsider its decision to prosecute this complaint. Subsequently, final hearing was reset for July 7, 1980. At hearing, the Board called Gerald Pendry, Richard C. Tymick, and Eva Baird as its witnesses and offered Petitioner's Exhibits No. 1-6, 1/ inclusive, each of which was received into evidence. Respondent Evers called James Bradfield as his witness and testified in his own behalf. Evers offered Respondent's Exhibits No. 1-10, 1/ inclusive, each of which was received. At the outset, the Board dropped Count IV and moved to amend its complaint by adding an allegation that Evers' alleged misconduct was of such a nature that had the Board been aware of it at the time Evers applied for his real estate salesman's license the application would have been denied. The proposed amendment fell within the scope of the complaint, and the motion was granted. Evers also renewed his previous motion to quash the amended complaint on the ground that he was not a licensed real estate salesman at the time of the alleged misconduct; the motion was denied. At close of hearing, the parties requested the opportunity to submit memoranda of law by July 23, 1980, which request was granted. The parties further agreed that the thirty-day time period for filing the recommended order in this case would begin on July 23, 1980. Based upon the evidence submitted at hearing, the following facts are determined:
The Issue Whether the Respondent should be disciplined upon a charge that he operated as a salesman for any person not registered as his broker in violation of Section 475.42(2)(1)(b), Florida Statutes, and whether Respondent should be disciplined based upon a charge that he collected money in connection with any real estate brokerage transaction without the express consent of his employer and not in the name of his employer in violation of Section 475.42(1)(d), Florida Statutes.
Findings Of Fact The Petitioner is the state agency charged with regulating and disciplining real estate salespersons. The Respondent is and was at all times material to this complaint a licensed real estate salesperson in the State of Florida having been issued license no. 0593108. The Respondent's current license was issued as a voluntary inactive with an address of 1421 Daytona Avenue, Holly Hill, Florida 32117. In mid-1994, the Respondent was employed by Donal E. Harrigan, d/b/a Donal E. Harrigan Company (hereinafter Harrigan). The Respondent was licensed as a real estate salesperson with Harrigan, and was engaged in the selling of timeshares. While employed with Harrigan, the Respondent and his wife talked with Fadel Elbadramany, the broker and owner of AAA Realty. Initially the Respondent and his wife talked with Elbadramany about the purchase of commercial real estate; however, Elbadramany solicited both of them as real estate salespersons with his company. The Respondent's then wife was eventually employed by Elbadramany as a salesperson. The Respondent discussed employment with Elbadramany; however, Elbadramany would not discuss the nature and scope of his business until the Respondent had signed an employment agreement containing a non-competition clause and DBPR Form 400.5. The Respondent was interested in selling commercial property, but did not want to cease selling timeshares. He discussed this with Elbadramany who advised him that he could do both. Pursuant to this discussion, the Respondent filled out a DBPR Form 400.5 checking at the top of said form under Section A, "Multiple Licenses." Nothing was checked on the form indicating a change of employment or broker. The Respondent signed the form in blank and left it with Elbadramany. Fadel Elbadramany was called to testify. Elbadramany testified that he employed the Respondent, that the Respondent obtained list of prospects from his office, that the Respondent never sold any real estate for him, and that he had observed the Respondent engaging in the sale of real estate which was not listed with his brokerage. Brenda Groves, the ex-wife of the Respondent, was called to testify. Brenda Groves was employed by AAA Realty and Elbadramany. During her employment, a conflict arose which resulted in litigation between Brenda Groves and Elbadramany over the anti-competitive clause contained in the employment contract. Brenda Grove testified that Elbadramany threatened to get her and to get her husband. Ms. Grove testified regarding the employment of her ex-husband. The Respondent was not employed by AAA Realty. Ms. Groves testimony is considered very credible. There was a conflict in the testimony between Elbadramany and the Respondent concerning who filled out and completed the DBPR Form 400.5. The most credible evidence is that it was completed by Elbadramany and filed with the Department of Professional Regulation, Division of Real Estate. The form as filled out, requests only multiple licensure. The request for multiple licensure is consistent with the Respondent's intent to continue to sell timeshares for Harrigan and commercial property for Elbadramany. However, prior to commencing employment with Elbadramany, but after filling out the form, the Respondent determined that he did not want to be employed by Elbadramany. Meanwhile, unbeknownst to the Respondent, the Division of Real Estate received the DBPR Form 400.5 and, because the Respondent is not a broker, did not issue him a multiple license. Instead, the Division of Real Estate shifted the Respondent's registration as real estate salesperson from Harrigan to AAA Realty. Although the Respondent's registration had been changed from AAA to Harrigan, the Respondent continued to be employed by Harrigan and to work actively in Harrigan's business selling timeshares. The testimony of the Respondent and that of Elbadramany was that he did not do any work for AAA Realty. There is no evidence in this proceeding that the Respondent received a copy of the licensing change or was made aware of this change prior to March 10, 1995. On March 10, 1995, the Respondent was interviewed by an investigator of the Department of Business and Professional Regulation. At this time the Respondent became aware that his registration was with AAA Realty. As a result of this interview, the Respondent contacted the Department and discussed with them how to correct the status of his registration. In order to accomplish that in accordance with the instruction he received, the Respondent filed out a DBPR Form 400.5 registering with Harrigan by whom he had been continuously employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Division of Real Estate enter its final order dismissing the administrative complaint against the Respondent Gary Allen Groves. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Gary Allen Groves 1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's Florida real estate license should be revoked or otherwise disciplined for violations of Sections 475.25(1)(b), 475.25(1)(e), and 475.25(1)(k), Florida Statutes.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to enforce the provisions of Chapter 475, Florida Statutes, and the rules promulgated pursuant thereto. At all material times, Respondent, Lee Scott Marose, was a licensed real estate salesperson in the State of Florida, having been issued license No. 0584225, pursuant to Chapter 475, Florida Statutes. From December 10, 1993 to June 6, 1994, Respondent was employed as a real estate salesperson with Tam-Bay Realty, Inc., in Hillsborough County, Florida. On or about February 1, 1994, Respondent solicited and obtained a residential lease between Richard Akers, Sr. (Owner), and R. Dugan Fry (Tenant) for property located at 1731 Staysail Drive, Valrico, Florida. The lease provided for rental payments of $850.00 per month. On or about May 1, 1994, in accordance with the lease, the Tenant sent Respondent a check in the amount of $850.00 payable to Tam-Bay Realty. Respondent did not deliver the May 1, 1994 check to Tam-Bay Realty, but instead caused the Tenant to issue another check dated May 9, 1994, in the amount of $850.00 payable to Respondent. Respondent received the May 9, 1994 check, cashed the check, and diverted the funds to his own use. Due to Respondent's actions, Tam-Bay Realty refunded the money to the Owner, and dismissed Respondent from its employment. During the investigation of this matter by Petitioner, Respondent admitted to Petitioner's investigator the conversion of the rental check, but explained that his actions were an attempt to shorten the "turn-around" time on the rental check, and that he had been unable to replace the funds because money had been stolen from his personal checking account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found in violation of the above-cited statutory provisions, and that Respondent's Florida real estate license be revoked. RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of September, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1995. APPENDIX As to Petitioner's proposed findings: 1.-9. Accepted and incorporated. COPIES FURNISHED: Steven W. Johnson,, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lee Scott Marose 18950 U.S. Highway 144, #133 Mount Dora, Florida 32757 Darlene F. Keller, Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Home Owners Direct Sales, Inc., is now and was at all times alleged herein a registered real estate entity. Respondent, Roger L. Davis is now a registered real estate broker and from July 30, 1976 to the present time, has been a registered real estate broker, President and active firm member of Respondent, Home Owners Direct Sales, Inc. Respondent Davis, by and through agents of Respondent Home Owners Direct Sales, Inc., solicited from property owners in the Dade, Broward and Palm Beach County areas the payment of a fee in return for listings to sell their property in a magazine which was published by Home Owners Direct Sales, Inc. The complaint alleges that in its solicitation efforts, Respondents advised property owners that the magazine would be published monthly and contain the property owners listing; that such representations were false and known to be false when made; that subscribers relied upon such representations which prompted them to simultaneously pay a listing fee; that none of said fees received subsequent to July 1, 1976 were held or maintained in a trust account and that by reason thereof, the Respondents are guilty of fraud, misrepresentation, concealment, false pretenses, false promises, etc. within the meaning of Subsection 475.25(1)(a), Florida Statutes, and Respondent Home Owners Direct Sales, Inc. by and through President Davis is additionally guilty of collecting an advance fee without depositing 75 percent thereof in a trust account in violation of Subsection 475.452, Florida Statutes, all in violation of Subsection 475.25(1)(d), Florida Statutes. The complaint alleges further that the Respondents, as a means to assure the receipt of said deferred payments, recorded the deferred payment contract amount as liens against the real property interest of those who chose this method of payment for the service to be performed by Home Owners Direct Sales, Inc. Based thereon, the complaint alleges that the Respondents have placed upon the public records of the county, a lien which purports to affect the title of, or encumber, real property for the purpose of collecting a commission or to coerce the payment of money to the broker in violation of Subsection 475.42(1)(j) Florida Statutes, and derivatively in violation of Subsection 475.25(1)(d), Florida Statutes. Further, the complaint alleges that approximately 207 contracts were recorded in Broward County as liens of which there presently remains outstanding approximately 187 liens against the real property interests of those who chose the deferred payment method of compensation to Respondent Home Owners Direct Sales, Inc.; that Respondent has failed to take any steps to remove said liens from the public records and that by reason thereof, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, is guilty of false pretenses, dishonest dealing, trick, scheme or device in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The complaint also alleges that Ronald Kavin, during times material, was a registered real estate salesman in the employ of Home Owners Direct Sales, Inc.; that pursuant to the terms of his (Kavin) employment agreement, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, paid the sums of $250 and $150 by checks dated September 16 and 29, 1976, respectively to salesman Kavin which were returned for nonsufficient funds. Based thereon, the complaint alleges that the Respondents are guilty of dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes. Based thereon, the complaint concludes that the Respondents are guilty of a course of conduct or practices which show that they are so dishonest and untruthful that the money, property transactions and rights of investors and those with whom they may sustain a confidential relation may not be safely entrusted to them, all in violation of Subsection 475.25(3), Florida Statutes. An examination of the record compiled herein reveals that sometime during the month of March, 1975, a corporate brokerage agreement was entered into between Jeff Davey, James McKay and Marylin Benjamin. As a means of doing business, the parties utilized a previously established Florida corporation, Macoda, Inc. James McKay was President of the corporation and Jeff Davey and Marylin Benjamin were Vice Presidents with Benjamin also serving as active broker. Jeff Davey was the son-in-law of President McKay who advanced the initial funds for capitalizing the corporation. Jeff Davey was charged with publishing and distributing the magazine, ensuring that signs were placed on the property of owners who utilized the service, and taking photos of such properties. Messr. McKay envisioned establishing a profitable, ongoing venture for his son-in-law and daughter. As originally conceived, the corporation planned to publish a magazine which would illustrate real property that was available for sale by owners in Dade, Broward and Palm Beach counties. The procedure simply stated involved putting the sellers of property in contact with buyers so that a viewing time could be arranged between them. Further negotiations between seller and prospective buyer were usually handled solely between them without any input or assistance from the personnel of Respondent Home Owners Direct Sales, Inc. During the early days of the corporate venture, monies collected from advertisers and all publication expenses, office expenses and salaries were handled by Jeff Davis and/or James McKay. In the early months of the operation, Messrs. Davey and McKay, pursuant to guidance and counseling from their accountants and lawyers, collateralized the listing fee contracts and used them as receivables to defray the steadily mounting negative cash flow resulting from the business operations. Sometime in December, 1975, Jeff Davey left the country for personal reasons. Thereafter, Messr. McKay took a more active role in the publication of the magazine and took sole charge of financial matters and policy decisions. The best guesstimate is that during this period, the venture was operating at a deficit of approximately $200,000 and was committed to substantial fixed overhead expenses. Mr. McKay who was retired and wealthy, contacted Respondent Roger L. Davis, who was then the publisher of a business and financial opportunity magazine and engaged his services to try to sell the business. Respondent Davis advertised the business in his financial opportunity publication for the asking price of $50,000. After several months of screening prospects, it became apparent to Respondent Davis that he would be unsuccessful in his efforts to locate a prospective buyer for the business and so advised the owner, Messr. McKay. During June or July of 1976, Respondent Davis offered to purchase the business for the outstanding obligations which amounted to approximately $12,000. At the outset of his assumption, Messr. Davis satisfied outstanding obligations of approximately $7,000 which were due to the printer. That amount also represented outstanding bills for rent, phone, salaries and other current expenses. Respondent Davis testified that when he purchased the business in June, 1976, the books were in a shambles and it was extremely difficult to determine what receivables the corporation was due and what obligations were due and owing. His testimony which was corroborated by his ex-wife, Ann Davis, reveals that he (Davis) made an honest good faith effort to satisfy all outstanding obligations with the limited funds available. He was able to obtain extensions from the printer so that approximately 15,000 copies of the magazine's November issue was printed. Respondent Davis found difficulty in physically laying out the magazine due to his lack of experience in layout work. By this time, Davis had exhausted all of his available revenues from the service and he had no funds to hire personnel to perform those functions. He contacted several property owners who had a listing agreement with Respondent Home Owners Direct Sales, Inc. after he took over its operations and was able to determine that approximately 50 - 60 property owners had in fact sold their houses and therefore no longer needed the service. He also testified that he was not responsible for filing the liens on the property of owners who utilized the deferred payment plan with Respondent Home Owners Direct Sales, Inc. He related several instances wherein he, when confronted by a property owner and was advised that an outstanding lien was affecting the title to their property, gave a release or satisfaction for the lien. When Respondent Davis took over the operations of the business, he retained the services of Ronald Kavin for office and sales manager in overall charge of initiating sales. His overall responsibilities included training salesmen, making appointments for sales persons and assuring that they kept appointments. Approximately September 16, 1976, Messr. Kavin approached Respondent Davis for $250 which he needed to pay a garage repair bill. Messr. Davis credibly testified that he advised Messr. Kavin that although he had no money, he would issue him a check which should not be deposited until he assured him that sufficient funds were on deposit in the bank to cover the check. Approximately two weeks later, Messr. Kavin again approached Messr. Davis for $150 to defray expenses which he had incurred in his duties as office manager. Again Respondent Davis explained that while he had no money, he expected to obtain some money shortly from an investor whom he had arranged financing for some property which he owned and that he (Kavin) should not attempt to negotiate the check until he had prior clearance from Davis that he had sufficient monies on deposit in the bank. Messr. Kavin attempted to negotiate both checks which were returned for nonsufficient funds.
Recommendation Based on the foregoing findings and conclusions, I hereby recommend that the registration of the Respondent corporation, Home Owners Direct Sales, Inc. and the license and registration of Respondent Roger Davis be placed on probation for a period of one year. RECOMMENDED this 22nd day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802 Roger L. Davis, Esquire c/o "A" Inc. 1980 North Atlantic Boulevard Cocoa Beach, Florida 32931 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An agency of the state of Florida, Plaintiff, PROGRESS DOCKET NO. 3218 BROWARD COUNTY DOAH CASE NO. 77-2065 HOME OWNERS DIRECT SALES INC. and ROGER L. DAVIS, Respondents. /
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility, and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
The Issue Whether the application of the Respondent, Robert A. Whittemore, III, for registration should have been denied.
Findings Of Fact The Respondent, Robert A. Whittemore, III, filed an application for registration as a real estate salesman with the Petitioner Commission on April 18, 1978. The application was denied, and Respondent by letter requested an administrative hearing to "prove that I do meet with the qualifications" for licensure. Respondent was sent notice of hearing on two (2) occasions by mail, and the notices were not returned. He did not appear to testify and sent no representative to testify in his behalf. Respondent had been licensed as a real estate broker in New York, New York, which license expired on October 31, 1973. The application submitted by Repondent showed that he was convicted of conspiracy in the third degree by the Supreme Court in the State of New York on August 19, 1976, and of falsely reporting an incident in the third degree on December 5, 1976, and sentenced on June 16, 1976. Thereafter a certificate of relief from disabilities on his real estate license was issued by a justice of the Supreme Court, State of New York, on October 20, 1977. Said certificate was submitted by Respondent at the time of his application for registration. No memorandum of law was submitted by either party involved in this administrative hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Respondent's application for registration be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1979. COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Robert A. Whittemore, III 5501 North Ocean Boulevard Ocean Ridge Palm Beach, Florida 33435
